Commonwealth v. Carney

• Decision Date: 20 July 2015
• Docket Number: SJC–11092.
• Citation: 33 N.E.3d 1234,472 Mass. 252
• Parties: COMMONWEALTH v. Aaron CARNEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

472 Mass. 252

33 N.E.3d 1234

COMMONWEALTH

v.Aaron CARNEY.

SJC–11092.

Supreme Judicial Court of Massachusetts, Bristol.

Argued May 5, 2015.

Decided July 20, 2015.

Alan Jay Black, Springfield, for the defendant.

Tara L. Blackman, Assistant District Attorney, for the Commonwealth.

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

Opinion

SPINA, J.

The defendant was convicted of deliberately premeditated murder. On appeal he asserts error in the admission in evidence of (1) an autopsy photograph, and (2) a BB rifle together with ammunition that were unrelated to the killing. He also argues that the prosecutor's closing argument was improper. We affirm the conviction and decline the defendant's request for relief under G.L. c. 278, § 33E.

1. Background. The jury could have found the following facts. We reserve other details for discussion of particular issues. The defendant and Kenneth Fontaine became friends at sometime around 2005. Kenneth lived with his mother, Elizabeth Fontaine, the victim. Elizabeth was a registered nurse. She had significant issues with her health, including obesity. Kenneth assisted his mother with some of her needs. Kenneth and his mother purchased a single-family house in Attleboro during 2007. Because of her health and limited mobility, Elizabeth converted the first-floor living room into her bedroom. They took in boarders to help with their finances. The defendant was one such boarder. His rent was $400 per month. Kenneth and the boarders had bedrooms on the second and third floors. There also was a bedroom on the third floor that the boarders used for storage. Kenneth did not use that room.

During 2008, some of Elizabeth's medication began to disappear. Kenneth and Elizabeth believed it was taken by one of the other boarders, so they evicted him. Kenneth also discovered that an old shotgun he had kept in his closet was missing. He assumed it had been stolen by the same boarder who he thought had taken his mother's medication. Kenneth had discussed these losses with the defendant, but he did not suspect the defendant of taking them.

At one point, the defendant's employment situation changed and he fell behind in his rent. The arrearage was about $8,000 as of October, 2009. Nevertheless, the defendant and Elizabeth maintained a very good relationship. The defendant had told Kenneth at times that he did not understand how Kenneth could be so good to his mother, as her health problems seemed so burdensome. Kenneth typically paid for the defendant's food and cellular telephone bill, and he gave the defendant money for miscellaneous expenses such as cigarettes. He did this because he valued the defendant's friendship. Kenneth would sometimes use Elizabeth's prescription pain medication for migraine headaches, with her approval. What Elizabeth did not know was that Kenneth

also gave the defendant some of her Oxycontin pills on a regular basis.

In the fall of 2009, the defendant told Kenneth that he wanted to end his dependence on pain medication. He tried to stop taking them, but the withdrawal symptoms were intolerable. Kenneth gave the defendant two Oxycontin pills per day on weekends, and Vicodin once or twice a week to ease the defendant's withdrawal symptoms and enable him to function at his part-time job. During that period, the defendant became depressed over his employment situation, his indebtedness to Kenneth and Elizabeth, and the fact that he did not own a car.

On Friday, October 2, Kenneth and a friend drove in the friend's vehicle to New Hampshire. Kenneth left his own vehicle for the defendant to use. In the second-floor living room, Kenneth had left the defendant two or four Oxycontin pills for the weekend. The defendant visited a friend, Gerald Knight, Sunday evening, October 4. Knight did not see the defendant taking any prescription pills, but they may have smoked marijuana. Late that evening, the defendant retrieved the shotgun he had stolen from Kenneth. He had “sawed off” a portion of the barrel.¹ He went downstairs with the shotgun and had some conversation with Elizabeth. He aimed the shotgun at her and pulled the trigger. The blast caused multiple fractures to the right side of her skull and caused injuries to her brain. She died from these injuries.

The defendant wrote a note to Kenneth explaining what he had done. He said he did it because “[i]t was the only going away present I could think of that would improve your life.... Without the two of us in your life dragging you down, things can get a lot better for you if you let them.... You deserve to be freed of these burdens, and I am only trying to help you with that.... I'm sorry for the pain I caused you.”

The defendant contemplated suicide, but was unable to follow through. He drove to Knight's home, arriving shortly after noon on Monday, October 5. He described for Knight what he had done. The defendant did not mention anything about having taken drugs or having been under the influence; he did not mention what he and Elizabeth had discussed; and he did not say why he had killed her. The defendant turned himself in to police. He telephoned Kenneth to apologize and said he did it with a shotgun.

When Kenneth asked why he did it, he said he did not remember.

2. Autopsy photograph. The defendant argues that the judge abused his discretion by admitting in evidence an inflammatory autopsy photograph of Elizabeth's gunshot wound. The defendant objected to the ruling, so our review is under the prejudicial error standard. See Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994). “The question whether the inflammatory quality of a photograph outweighs its probative value and precludes its admission is determined in the sound discretion of the trial judge.” Commonwealth v. Pena, 455 Mass. 1, 12, 913 N.E.2d 815 (2009), quoting Commonwealth v. DeSouza, 428 Mas. 667, 670, 704 N.E.2d 190 (1999). A defendant bears a “heavy burden of demonstrating an abuse of that discretion.” Commonwealth v. Berry, 420 Mass. 95, 108, 648 N.E.2d 732 (1995), quoting Commonwealth v. Gallagher, 408 Mass. 510, 519, 562 N.E.2d 80 (1990). See Mass. G. Evid. § 403 (2015) (relevant evidence may be excluded if its probative value is substantially outweighed by danger of unfair prejudice). Photographs depicting a fatal wound generally are admissible on the issue of deliberate premeditation. See Commonwealth v. Haith, 452 Mass. 409, 415, 894 N.E.2d 1122 (2008) ; Commonwealth v. Berry, supra.

The photograph was relevant to the question of deliberate premeditation. Elizabeth was found lying on her back with her legs off the side of the bed. Her feet were touching a short step she used to get in and out of bed. There was shotgun damage to the headboard of her bed. The jury could have found that the defendant aimed the shotgun at Elizabeth, as he had told Knight, and shot her while she was sitting on the side of her bed. The photograph was consistent with the other physical evidence, the testimony, and the Commonwealth's theory of deliberate premeditation. In addition, the photograph was relevant to the question of accident, which trial counsel raised in his opening statement. Trial counsel indicated in his opening that the gun discharged accidentally when Elizabeth reached for the barrel of the gun and the defendant tripped over a cat.² The photograph, the position of Elizabeth's body on her bed after the shooting, and the location of the shotgun damage to the headboard were inconsistent with the defendant's explanation of accident as put forth by

trial counsel in his opening.³

The gruesome aspects of Elizabeth's head wound were minimized by the indirect angle from which the photograph was taken relative to the wound. The photograph was of Elizabeth's face, and depicted only the edge of the wound on the right side of her head. The judge took further precautions to mitigate the potential for prejudice by not allowing the photograph to be handled by the jury, by segregating it from the other exhibits, and by instructing the jury at the time the photograph was admitted not to be swayed by emotions. See Commonwealth v. Allison, 434 Mass. 670, 684 n. 11, 751 N.E.2d 868 (2001), citing DeSouza, 428 Mass. at 670, 704 N.E.2d 190. There was no abuse of discretion in the admission of the autopsy photograph.

3. BB gun and ammunition. The defendant asserts error in the admission in evidence of a BB gun and some ammunition that were recovered from a third-floor closet used only by him. The items were unrelated to the killing. The judge instructed the jury at the time the items were admitted and again in his final instructions that if the Commonwealth proved they belonged to the defendant, the jury could consider them solely on the question of the defendant's capacity to use the shotgun that caused Elizabeth's death. The defendant objected to the admission of this evidence, so we review under the prejudicial error standard. Flebotte, 417 Mass. at 353, 630 N.E.2d 265.

A judge has discretion to admit such evidence to show that the defendant had access to or knowledge of firearms and ammunition. See Commonwealth v. McGee, 467 Mass. 141, 157, 4 N.E.3d 256 (2014), and cases cited. This is particularly relevant here, where the defendant had indicated that accident would be an issue. The defendant's reliance on Commonwealth v. Toro, 395 Mass. 354, 356–357, 480 N.E.2d 19 (1985), is misplaced. In Toro, the defendant claimed he did not do the shooting. Id. at 355, 480 N.E.2d 19. Here, the defendant made no such claim, and the question of his familiarity with guns was relevant to his claim of accident. There was no abuse of discretion in the admission of these items.

4. Prosecutor's closing argument. The defendant contends that the prosecutor deprived him of a fair trial by making improper closing argument in several respects. There was no objection, so we review to determine if any error created a substantial likelihood of a miscarriage of justice....