Commonwealth v. Bell

Decision Date09 November 2015
Docket NumberSJC–11444
Citation39 N.E.3d 1190,473 Mass. 131
PartiesCOMMONWEALTH v. Lastarandre BELL.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Leslie W. O'Brien, Boston, for the defendant.

Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.

Present: GANTS, C.J., SPINA, CORDY, DUFFLY, & LENK, JJ.

Opinion

DUFFLY

, J.

The defendant was indicted on charges of murder in the first degree, armed home invasion, arson of a dwelling house, and violations of an abuse prevention order in the January 29, 2007 death of Julie Ann Nieves,1 who died as a result of complications arising from second and third degree burns over ninety per cent of her body that she sustained on January 7, 2007.

In April, 2008, a Superior Court jury convicted the defendant of murder in the first degree on a theory of felony-murder,2 armed home invasion, arson, and violations of an abuse prevention order. The defendant's appeal from the denial of his motion for a new trial was consolidated with his direct appeal. Because the trial judge failed to instruct the jury on second-degree felony-murder with arson as the predicate felony, and because we concluded that the arson conviction merged with the murder conviction, we vacated the murder conviction and remanded the matter to the Superior Court either for entry of a verdict of guilty of felony-murder in the second degree, or for a new trial. See Commonwealth v. Bell, 460 Mass. 294, 295, 951 N.E.2d 35 (2011)

. We affirmed the other convictions. Id. At his second trial in December, 2012, before a different judge, a Superior Court jury found the defendant guilty of murder in the first degree on theories of premeditation, extreme atrocity or cruelty, and felony-murder. The defendant's appeal from that conviction is now before us.

That the defendant was in some way responsible for the flames which engulfed the victim was not an issue at trial; the central issue at trial was whether the burning was intentional or accidental. The Commonwealth maintained that the defendant deliberately doused the victim with gasoline and set her on fire; the defendant claimed that he had a cigarette in his mouth when the victim threw gasoline on him, the cigarette ignited the gasoline, and the fire jumped from him onto the victim's nightgown.3 In this appeal, the defendant challenges the introduction in evidence of his statements that, inter alia, he started the fire but did not intend that anyone get hurt. The defendant argues that these statements, made to police approximately one-half hour after the fire, immediately before and during his arrest, were not voluntarily made, and their admission in evidence following the denial of his motion to suppress requires a new trial. The defendant argues also that a new trial is required because the introduction of graphic photographs of the victim while she was being treated in the hospital unfairly inflamed the jury, and the judge's decision to strike part of defense counsel's closing argument deprived the defendant of the effective assistance of counsel.

We affirm the convictions, and discern no reason to grant a new trial or to exercise our authority to provide relief pursuant to G.L. c. 278, § 33E

.

Background. We summarize the facts the jury could have found, reserving certain facts for later discussion.

1. Commonwealth's case. In the fall of 2006, the defendant had been dating Jessica Nieves4 for about one year. He lived with Jessica; her brother, Daniel; her mother, Julie Ann; and other of their relatives in the borough of the Bronx in New York City. In

October, 2006, the defendant moved with Jessica and her family from New York to Springfield. They moved into an apartment on Warner Street where Julie Ann's sister, Caroline Cruz, lived with her daughters, Tiffany and Julissa, and Tiffany's boy friend, Larry Key.

At the beginning of November, 2006, Jessica and Caroline obtained restraining orders against the defendant, in part based on Jessica's statements that the defendant had made threatening comments to her about hurting her and members of her family. The defendant then moved to a nearby apartment building where he obtained a job as the building superintendent. Despite the restraining order, Jessica continued to spend time with the defendant. She had keys to his apartment, kept some clothes there, and sometimes stayed overnight; she and her brother used the laundry facilities in the building.

Jessica and her family returned to New York to visit other relatives over the Christmas holiday; the defendant made several telephone calls to her during that period, expressing anger that he had not been included in the visit and asking to see Jessica. She refused his requests. The family returned to Springfield after the New Year.

On the evening of January 7, 2007, Jessica, her mother, brother, aunt, cousins, and her cousin's boy friend were in the Warner Street apartment. Shortly before 9:30 p.m. , the defendant called Daniel's Nextel cellular telephone, asking to speak with Jessica. The Nextel device had a “walkie talkie” feature that allowed everyone in the vicinity to hear the caller even if the device was not picked up and answered. Daniel did not answer; the defendant telephoned again a few minutes later, asking to speak with Jessica and sounding angry. Again, Daniel did not answer.

Soon thereafter, around 9:30 p.m. , there was the sound of glass shattering, and several family members heard a scream. They ran into the kitchen and saw the defendant approaching from the dining room, which led directly into the living room where the window was broken. A number of family members testified that the defendant was holding some kind of a bottle or container, about the size of a one-gallon milk container. Some said he was squirting or spraying liquid from it; others said he had a gasoline can with a funnel; and another saw him waving his arms but did not see if he had anything in his hands. The family members ran into the middle of three bedrooms and locked the door. They then realized that Julie Ann was not with them, and heard her scream

and cry out, “Oh, my god.” Jessica, Daniel, and Larry ran through a door between the middle and front bedrooms, then through another door leading from the front bedroom to the front hall. They saw the defendant, whose leg was on fire, struggling to unlock the front door; he managed to get the door open and left the house.

At that point, Julie Ann's bedroom, next to the kitchen, was on fire. The family saw Julie Ann walking slowly toward them from the living room to the front door. The back of her nightgown was in flames. She walked out onto the porch, where Jessica and Daniel tried unsuccessfully to extinguish the flames with their hands and a towel. Eventually, Jessica grabbed a comforter from one of the bedrooms and wrapped Julie Ann in it, which extinguished the fire.

When police arrived, the house was on fire, and there was a fire burning in the yard. Julie Ann was lying on the front porch, wrapped in the comforter, and various family members were standing on the porch, “hysterical beyond control,” according to one of the first officers to arrive on the scene, and initially unable to explain what had happened. Directed to the comforter, one officer then unwrapped a flap and looked inside. Julie Ann's burns were so severe that he was at first unable to tell if she was male or female, but she later responded to questions. She was transported by ambulance to a hospital in Boston. Family members told police that the defendant had started the fire and had headed down Longhill Street, towards his apartment, after he left their house. Four officers (three Springfield police officers and a State police trooper) drove to Longhill Street in a police cruiser to search for the defendant. The officers stopped not far from his apartment complex to discuss their strategy for searching the complex and saw the defendant walking toward them, with his hands in the air, saying a number of times, “I'm right here. I'm the one that started the fire. I'm the one you're looking for.” They aimed their weapons at the defendant and told him to lie on the ground.

The officers noticed that the defendant's hands and face were seriously burned, and he smelled of gasoline. He was walking slowly and “gingerly” and was in evident pain; in the course of handcuffing the defendant, officers observed that his legs also were burned badly. He said repeatedly, “I didn't mean to hurt anybody.” While the defendant was being frisked for weapons, one of the officers found money and a book of matches in the left

front pocket of the defendant's pants. The officer held the matches up to show them to the other officers, saying, “Look what I found,” and the defendant responded, “That's what I used to start the fire.' ”

As the defendant continued to make statements to the arresting officers, Springfield police Officer Phil McBride gave the defendant the Miranda warnings. McBride asked the defendant if he understood the rights he had been given, and the defendant said that he did. The defendant repeated a number of times that he had not meant to start the fire and had not meant to hurt anyone. When the defendant continued to speak, McBride told him to stop talking. The defendant also said a number of times that his legs were badly burned, he was in pain, and he wanted medical attention. After officers told him that an ambulance had been summoned, the defendant asked a number of times when it would arrive. The defendant continued to make statements to the officers until he was placed in the ambulance. As the defendant was being taken to the ambulance, one of the officers in close proximity to the defendant remarked that the defendant smelled of gasoline, and the defendant again said, “That's what I used.”

Police searched the victim's apartment with an accelerant-detecting dog. The dog alerted to areas on the dining room floor, the floor in the hallway outside the bathroom,...

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