Commonwealth v. Cheremond

• Decision Date: 30 January 2012
• Docket Number: SJC–10770.
• Citation: 461 Mass. 397,961 N.E.2d 97
• Parties: COMMONWEALTH v. Lesly CHEREMOND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

461 Mass. 397

961 N.E.2d 97

COMMONWEALTH

v.Lesly CHEREMOND.

SJC–10770.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 10, 2011.Decided Jan. 30, 2012.

Jeffrey L. Baler for the defendant.

Robert J. Bender, Assistant District Attorney (Elizabeth A. Keeley, Assistant District Attorney, with him) for the Commonwealth.

Present: IRELAND, C.J., SPINA, BOTSFORD, GANTS, & DUFFLY, JJ.

SPINA, J.

The defendant was convicted of murder in the first degree on theories of deliberate premeditation and felony-murder based on a predicate felony of aggravated rape, as well as aggravated rape. On appeal, the defendant asserts error in the denial of his pretrial motion to dismiss and the denial of his motion for a required finding of not guilty, both based on the sufficiency of the evidence as to the element of consent with respect to aggravated rape. The defendant also challenges the admission of evidence of prior bad acts, and the propriety of the prosecutor's closing argument. We affirm the convictions and decline to exercise our power under G.L. c. 278, § 33E, to reduce the degree of guilt on the murder conviction or order a new trial.

1. Background. The jury could have found the following facts. We reserve other details for discussion of particular issues.

The victim operated her own beauty salon on Salem Street in Malden. The defendant operated his own video and music shop next door. The defendant sold some of the victim's merchandise at his store. The victim and the defendant lived together until February 5, 2007, at which time the defendant was ordered to move out of their apartment pursuant to a noncontact abuse prevention order sought by the victim. The order, which specifically allowed the defendant to operate his business, expired February 8, 2008. During 2007, the victim moved to Somerville. Later that year, she moved to Lynn because she thought the defendant was following her. She was planning to move to Florida by the spring of 2008 to get as far away from the defendant as she could.

Some time around July or August, 2007, the victim began dating a man named Yves. In late 2007 or early 2008, the victim told Yves that the defendant wanted to renew their relationship, but she had no intention of doing so. The defendant first became aware on Sunday, February 10, 2008, that the victim and Yves were dating. On that day the defendant saw them in front of her salon, which was not open for business on Sundays or Mondays. He confronted them and angrily asked the victim, “Is this the person [you] left me for?” The victim did not answer him. He berated her. She eventually went to her car and drove away. The defendant turned to Yves and said angrily, “People get killed for destroying someone's relationship.”

On Monday morning, February 11, the defendant unsuccessfully tried five times to reach Edith, one of the victim's employees, by telephone. When Edith returned the call, the defendant revealed that he had discovered the victim with Yves the day before, that he demanded the victim tell him if she was seeing Yves, and that he followed the victim that afternoon. He further revealed that he was in love with the victim, and that he wanted to live with her. He spoke again with Edith one hour later, and again on February 12.

After the close of business on Tuesday, February 12, the victim met Yves at his home and drove him to her apartment in Lynn. She told Yves that she and the defendant had an argument that day over money from the sale of her hair products at his store. Yves spent the night with her. On Wednesday morning, February 13, she drove Yves to his place of employment in Peabody. He called her cellular telephone at 9:07 a.m. and she said she was still at her apartment. The victim arrived at her beauty salon at about 9:45 a.m. She parked her car in front of the salon and walked inside with her pocketbook and a cup of coffee. At about 11:40 a.m. she told Blandine, an employee, that she was going out and would return. She left without her pocketbook and never returned. The defendant would tell police on February 26 that he had seen her walk past his store on February 13. They spoke, and she told him she was going for coffee. Throughout the day, Blandine made unanswered telephone calls from the salon to the victim's cellular telephone. She attended to customers by herself.

Within two hours after the victim left the salon the defendant entered and told Blandine he had come for the victim's pocketbook. He took the pocketbook and left. At about 6 or 6:30 p.m., as the defendant was leaving his store for the night, Blandine called to him and asked who would lock the salon, as she did not have a key. He said he would lock the door. As they left, Blandine noticed that the victim's car was no longer parked in front of the salon. The defendant telephoned Edith that night and told her he tried to reach the victim by calling her cellular telephone, but he received no answer. This was not true—he had not called her cellular telephone number. He asked Edith to return to work, but she refused, saying only the victim could ask her to work.

Shortly after midnight on Thursday, February 14, the defendant's cousin, with whose family he was staying, returned to her home in Everett after work. The defendant was in his room. At 3:04 a.m. on February 14, the defendant called her cellular telephone and asked if she would lend him a house key so he could go to a pharmacy and get something for his headache. She did not want to give him a key, and told him to contact her when he returned. She locked the door behind him when he went out. At 3:12 a.m. the defendant made a telephone call to a local taxicab company. At 3:25 a.m. a cab from that company picked up the defendant in front of his cousin's home. The cab driver dropped him off at the corner of Bryant Street and Eastern Avenue in Malden, about four blocks from the victim's salon, at 3:35 a.m. The defendant's cousin let him in the house after he telephoned her at 4:19 a.m.

The victim's cellular telephone records showed which local cellular telephone tower transmitted each call to or from her cellular telephone, that is, the approximate location of her cellular telephone could be ascertained at the beginning and the termination of each call, whether outgoing, answered, or “missed.” As late as 10:58 p.m. on February 13, the victim's cellular telephone received all calls from the tower at 650 Eastern Avenue in Malden, which served the area where the victim's salon and the defendant's store were located. Calls to her cellular telephone after that time and before 9:45 a.m. on February 14 were from the tower at 38 Main Street in Malden, which served the area in Everett where the defendant was living with his cousin's family.

The victim's salon did not open for business on February 14. Customers went to the defendant's store to inquire. That afternoon, the defendant placed a sign on the front door of the salon that said “closed for one week.” He told one of the victim's regular customers and a letter carrier that the salon was closed while the floor was being redone. He told another customer that the victim was “out of State,” and that the salon was getting “new management.” He told a third customer that he did not think the victim would return. The defendant opened the victim's salon for business on Thursday, February 21, with hairdressers he had hired.

Yves had tried to telephone the victim numerous times beginning at 3:27 p.m. on February 13, but she never answered or returned his calls. The victim's brother also tried to reach her by telephone on February 14 and 15, but she never answered or returned his calls. The victim's cellular telephone records for the two-week period beginning with Yves's call to her at 9:07 a.m. on February 13, showed no outgoing calls. The records indicated unanswered, or “missed,” calls during that period from Yves, the victim's brother, and Blandine. Both the victim's and the defendant's cellular telephone records indicated the defendant had made calls to her cellular telephone in early February, and particularly February 10, the day he confronted her and Yves. He made no calls to her cellular telephone after 10:30 p.m. on February 12, except two calls on February 15—one at 9:20 a.m., and one at 1:38 p.m.

The victim's brother drove to her salon after work on February 15, to check on her. He found it closed. A sign read “closed for one week.” He went next door to the defendant's store and inquired about the victim. The defendant said he did not know where she had gone. The brother asked if the defendant could let him inside the victim's salon, but the defendant said he did not have a key.¹ He said he saw two men changing the lock on the salon door before she left. When the brother asked why she would change the lock, the defendant responded that he and the victim were not really “boy friend and girl friend any more,” and that maybe she did not want him to go to her salon. The brother telephoned the salon the following Friday, February 22, and the defendant answered the telephone. He asked if the victim had returned. The defendant said she had not, and that he was there to clean. When asked how he was able to get into the salon, he said he obtained a key from the landlord. The brother went to the salon on Saturday, February 23. It was closed, but the sign was gone. He went to the defendant's store and asked him for the landlord's telephone number so he could get a key to enter the salon. The defendant told him he did not have the landlord's telephone number. The brother then drove to the Lynn police department for assistance.

On Wednesday, February 27, two officers of the Malden police department were returning from an interview with Blandine when they discovered the victim's car parked on Faulkner Street, approximately two blocks from the salon, and two blocks from the intersection of Bryant Street and Eastern Avenue, where the cab...