Commonwealth v. Denis, SJC-08355 (MA 9/17/2004)

• Decision Date: 17 September 2004
• Docket Number: SJC-08355
• Citation: 442 Mass. 617
• Parties: COMMONWEALTH vs. KEVIN DENIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1

COMMONWEALTHvs.

KEVIN DENIS.

SJC-08355

Supreme Court of Massachusetts.

Suffolk.

April 9, 2004.

September 17, 2004.

Practice, Criminal, Instructions to jury, Reasonable doubt, Assistance of counsel, New trial, Admissions and confessions, Capital case. Homicide. Malice. Evidence, Consciousness of guilt, Admissions and confessions. Identification. Constitutional Law, Assistance of counsel.

Indictments found and returned in the Superior Court Department on September 1, 1994.

The cases were tried before James D. McDaniel, Jr., J., and a motion for a new trial, filed on May 8, 2002, was considered by Peter M. Lauriat, J.

Daniel J. Johnedis for the defendant.

Joseph M. Ditkoff, Assistant District Attorney, for the Commonwealth.

Present: Marshall, C.J., Greaney, Spina, Sosman, & Cordy, JJ.

SOSMAN, J.

The defendant was convicted of murder in the first degree on all three theories (deliberate premeditation, extreme atrocity or cruelty, and felony-murder), two counts of armed assault with intent to rob, and unlawful possession of a firearm. The defendant's motion for a new trial was denied without an evidentiary hearing by a judge who was not the trial judge.¹ On appeal from the convictions and from the denial of his motion for a new trial, the defendant asserts that the jury instructions were erroneous; that trial counsel was ineffective in various respects, and that the motion judge erred in denying his motion for a new trial without holding an evidentiary hearing. He also asks that we exercise our power under G. L. c. 278, § 33E, to grant him a new trial or reduce the verdict to murder in the second degree. For the following reasons, we affirm the convictions, affirm the order denying the defendant's motion for a new trial, and decline to grant relief under G. L. c. 278, § 33E.

1. Background. We summarize the evidence in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with the issues raised. On the evening of August 19, 1994, the victim, seventeen year old Diron Spence, stood on the corner of McLellan and Bradshaw Streets in the Dorchester section of Boston, talking to his friend, Cavell Rice. Two young women, friends of Spence, were walking down Bradshaw Street, and paused briefly to speak with Spence before continuing on their way down McLellan Street.

Moments after the women passed by, the defendant, wearing black pants, a black jacket, and a black ski mask, approached Spence and Rice and demanded their money. Rice immediately began emptying his pockets, but Spence just stood there. The defendant asked, "Think I'm playing?" He then pulled out a .357 Magnum revolver and shot at Spence from a distance of a few feet. As that first shot was fired, Rice ran away, without turning over any of the contents of his pockets. Four more shots were fired; three bullets hit Spence, including a fatal wound to the chest.

The defendant then fled, running down McLellan Street. Manuel Barros, who had been sitting on the front porch of his house on McLellan Street, saw the defendant slow to a walk, remove (but not discard) his mask, and put on a hat. Barros notified the police using his portable telephone, and followed the defendant as he turned onto Fowler Street. The defendant disappeared into the driveway of 14 Fowler Street momentarily, then reemerged and entered 8 Fowler Street, a three-family house. Barros kept the police apprised of the defendant's movements, and they arrived at the scene within minutes of the defendant's entry into 8 Fowler Street. The police surrounded the building and, from the rear, observed someone up on the third-floor porch. The police were let into the building by a man coming out the front door, and they proceeded to the third floor. They entered the apartment through an unlocked door, and found several persons inside, including the defendant, who appeared nervous and sweaty. A frisk of the defendant uncovered no weapon.

The weapon was soon found under a towel on the washing machine in the kitchen.² The defendant volunteered that he was the one who had brought the gun into the house.³ He was then handcuffed and seated in the kitchen. As he was being seated, the defendant asked, "Is he dead? Is he dead?" The defendant was then given his Miranda warnings, but no questions were asked of him at that time. A resident of the apartment directed one of the officers to a day bed in the living room, and the officer found a black cap under the mattress.

The officers took the defendant outside to see whether Barros could identify him. At that time, the defendant did not have on any hat, nor did he have on the jacket he had been wearing. An officer in plain clothes, and of an appearance generally similar to the defendant, was instructed to walk along with the defendant with his hands behind his back as if he, to, were in custody. Barros identified the defendant as the man he had seen running from the scene of the shooting. The defendant was then transported to the police station, while other officers remained on site to secure the apartment in anticipation of a search warrant.

During the ride to the station, the defendant spoke about his former high school and about his plans to start college within a few weeks. The detectives knew some of the teachers and officials at that particular high school, and they exchanged pleasantries with the defendant about their mutual acquaintance with persons associated with that school. The defendant asked the detectives to contact a guidance counsellor at the high school, a person who was well known to them. They attempted to do so, but were informed that the guidance counsellor was out of town.

On arriving at the station, the defendant was again given his Miranda warnings, and he signed a form acknowledging his waiver of those rights. His ensuing interrogation was tape recorded, as was yet another administration of the Miranda warnings. During the interrogation, the defendant was lucid and responsive, and he did not appear to be under the influence of alcohol or drugs. He explained to the officers that, for reasons of personal safety, he often carried a gun when he was out on the streets. He had been walking by himself when he came upon Spence and Rice, who were "just staring" at him. Spence laughed at him, and then turned away "as if he's going to grab something." The defendant "wasn't sure" what Spence might have been going to grab — it "could have been a knife" or it "[c]ould have been nothing." The defendant then fired "[a]bout three" shots at Spence, "hit him once or twice," and then fled to his friend's apartment on Fowler Street. There, he removed his jacket, and put the gun under a towel on the washing machine. He said that he could not remember what he had done with his cap. He denied that his face had been covered during the incident.

After the defendant completed his statement, the police obtained a warrant to search the apartment at 8 Fowler Street. Pursuant to that warrant, they seized the gun, the cap, and a black jacket. Subsequent testing confirmed that that gun had been used to shoot Spence.

2. Discussion. a. Jury instructions. The defendant argues that the judge's instructions were erroneous in several respects. In examining a claim of error in jury instructions, we do not look at individual phrases taken out of context; rather, we consider the instructions viewed as a whole. Commonwealth v. Gunter, 427 Mass. 259, 267 (1998). Commonwealth v. Rosa, 422 Mass. 18, 27 (1996). Where, as here, the defendant failed to object to the instructions at trial, we review the instructions to determine whether any error in those instructions creates a substantial likelihood of a miscarriage of justice. G. L. c. 278, § 33E. Commonwealth v. Blanchette, 409 Mass. 99, 104-105 (1991).

i. Instruction on reasonable doubt. The defendant argues that the instruction on proof beyond a reasonable doubt was constitutionally infirm. In reviewing a reasonable doubt instruction, we consider whether there is a "reasonable likelihood" that the instruction led the jury to believe that they could convict the defendant on proof insufficient to dispel reasonable doubt. Commonwealth v. Pinckney, 419 Mass. 341, 342 (1995). The defendant argues that the judge's repeated use of the term "moral certainty," his references to proof "beyond a shadow of a doubt," and his resort to examples of what does not constitute reasonable doubt, allowed the jury to convict him on a lower standard of proof. We disagree.

The defendant points to the fact that the judge used the term "moral certainty" four times in his charge, and cites to cases that question that term's usefulness in describing the standard of proof required for conviction. Victor v. Nebraska, 511 U.S. 1, 16 (1994). Commonwealth v. Pinckney, supra at 345. However, while references to "moral certainty" made in isolation and without further explanation may amount to an erroneous instruction on reasonable doubt, use of the term does not constitute reversible error when the instruction includes other language giving the term an appropriate context. Id. at 344-345. Here, the judge's first two references to "moral certainty" came within a verbatim Webster charge, a context that is wholly appropriate. See Commonwealth v. LaBriola, 430 Mass. 569, 572-573 (2000), and cases cited. Thereafter, he used the term two more times while explaining the concepts of circumstantial evidence and permissible inferences. Again, the term was not used in isolation but rather in combination with other wording that gave it appropriate meaning. The judge told the jury that they should not convict the defendant on circumstantial evidence unless that evidence was sufficient "to produce a moral certainty of guilt and to exclude any other reasonable theory," and was "of a conclusive nature and tendency leading on the whole to a satisfactory conclusion and producing a reasonable and moral certainty that...