Commonwealth v. Doucette

Citation720 NE 2d 806,430 Mass. 461
PartiesCOMMONWEALTH v. JEFFREY DOUCETTE.
Decision Date02 November 1999
CourtUnited States State Supreme Judicial Court of Massachusetts

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, IRELAND, SPINA, & COWIN, JJ.

Nona E. Walker, Committee for Public Counsel Services, for the defendant.

Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.

GREANEY, J.

A jury found the defendant guilty of murder in the first degree on a theory of felony-murder (with armed home invasion under G. L. c. 265, § 18C, as the underlying felony).1 The defendant was also convicted by the jury of other crimes stemming from the incident.2 Represented by new counsel on appeal, the defendant's arguments allege error in the judge's instructions to the jury on the elements of the crime of armed home invasion, on whether that crime is an inherently dangerous felony, and on the elements of self-defense and manslaughter. We reject the defendant's arguments. We also conclude, after review of the record of the trial, that there is no reason to grant the defendant relief pursuant to G. L. c. 278, § 33E. We shall, however, vacate the defendant's conviction and sentence on the armed home invasion charge that resulted in the victim's death because it is duplicative of his conviction of first degree felony-murder. See Commonwealth v. Scott, 428 Mass. 362, 369-370 (1998). The remainder of the defendant's convictions are affirmed.

The opinion will proceed in the following fashion. We shall first set forth the facts that the jury could have found based on the Commonwealth's evidence and based on the defendant's evidence. We shall next identify the elements of the crime of armed home invasion, which was the predicate felony for the felony-murder charge, and then state the Commonwealth's and defendant's theories as to that felony. With this background in place, we shall discuss the defendant's arguments that the jury instructions contained errors that require a new trial.

(a) The Commonwealth's evidence painted the following picture for the jury. Denise Bettinger and her five year old son, Derek, lived in an apartment on the second and third floors of a house at 140 Alley Street in Lynn. They were the only ones living in the house, as the apartment on the first floor was empty. The defendant was a friend of Bettinger and babysat for Derek on a full-time basis. On October 3, 1995, Bettinger, Derek, and another friend, Gary Twyman, who was a Lynn police officer, spoke to a sexual assault officer at the Lynn police station, concerning accusations that the defendant had sexually assaulted Derek. The defendant was subsequently informed of the allegations and was told that, while he was not under arrest, the investigation would continue, and criminal complaints could be brought against him. The defendant was told by the police that he could contact Bettinger by telephone, but that he was to have no physical contact with Bettinger or Derek.

During the evening of October 8, the defendant had been drinking beer and had taken approximately twenty Xanax pills. In the early morning hours of October 9, he decided to go to Bettinger's apartment to talk to her. He took with him his knife3 and a canister of mace, attached to his key ring. When he arrived at Bettinger's house, he saw Twyman's automobile and Dennis Escott's automobile parked outside (Dennis Escott is Derek's father). The defendant expected both men to be upstairs with Bettinger, but he did not change his mind about going to see her. The defendant entered the house through an unlocked door and proceeded up the stairs to Bettinger's apartment. As he knocked at the apartment door, his knife was in its sheath down one leg of his pants, and his hand was on the canister of mace.

Inside the apartment, Bettinger, Twyman, and Escott were watching television and smoking marijuana. Derek was sleeping on the second floor of the apartment, which is actually the third floor of the house. At approximately 1:30 A.M., there was a knock on the back door of the apartment leading into the kitchen. Escott walked through the unlighted kitchen to answer the door. He had no weapon in his hand. As he opened the door about one quarter inch, someone "barged into the house," "kick[ing the door] with the force of his whole body." As Escott fell to his knees, he was sprayed with mace. Bettinger identified the defendant as the person forcing his way into the kitchen. At this point Escott's eyes were burning, and he could barely see. He did not recognize his attacker. Escott and the defendant grabbed each other and fell down the stairs to the first floor of the apartment house. The two began throwing punches. Escott, now realizing who the intruder was, said, "You molested my son." At this point, Twyman came down the stairs. In the darkness, Escott pointed out to Twyman where the defendant was standing in the corner against the exterior door. After feeling a stab around the top right side of his buttocks, Escott crawled up the stairs and collapsed at the top. Bettinger was in the kitchen dialing 911 when she saw Twyman enter, bleeding heavily, and collapse. She then heard the defendant say from downstairs, "I did not touch that boy. I loved that boy. I didn't do anything." A neighbor noticed a male step out onto the porch in the back of 140 Alley Street and heard him yell, "Fuck you and your son[]." Twyman was subsequently taken to a hospital where he died following surgery. Police found the knife sheath lying inside the entrance of the first floor landing, a pair of crushed eyeglasses lying behind the entrance door, a black knit cap in the first floor hallway, and the defendant's bloody jacket on the back porch of the house. There was blood all over the hallway and up the stairs leading to the apartment.

Shortly thereafter, the police stopped the defendant walking along the Lynnway. The defendant pulled out the knife and raised it over his head. Ordered to drop the knife, the defendant repeatedly refused, and resumed walking. The police disabled the defendant by shooting him in the leg, took him into custody, and transported him to a hospital.

(b) The defendant's evidence portrayed the incident as occurring in the following fashion. The defendant was a friend of Bettinger and often babysat for Derek. He loved Bettinger and viewed himself as a father figure to Derek. Escott had been upset that Derek was spending so much time with the defendant. On October 4, 1995, the defendant went to the Lynn police station at the request of a sexual assault officer. There, he learned that he had been accused of sexually assaulting Derek. The defendant denied the charge and was told that, while he was not under arrest, the investigation would continue, and that he was to have no contact with Bettinger or Derek. The defendant was also told that he could call Bettinger by telephone, but that if she did not wish to speak with him, he should have no further contact with her.

Over the next few days, the defendant became obsessed with the allegations against him. He was afraid he was going to be arrested, and because he feared retaliation by Bettinger's friends, he carried a weapon, either a baton or a knife. He tried unsuccessfully to get in touch with Bettinger. On October 8, he stayed home, thinking about the allegations. He wanted to talk with her to "straighten everything out." The defendant thought that Escott and Twyman may have instigated the allegations. During the evening he was drinking and took approximately twenty Xanax pills. The defendant decided to go to Bettinger's apartment to see if he could resolve the situation. He took a canister of mace with him, which he always carried on his key ring for protection. The defendant also carried his knife, which he testified he thought he might need for protection, down one leg of his pants. He did not take out the knife before he went into the house because he "wasn't over there to hurt anybody with it." Although he still had a key to Bettinger's apartment, he did not take it with him.

On the night of October 8, Escott had been spending the weekend at Bettinger's. Between 11:30 P.M. and midnight, he drank three or four beers at a restaurant, and on the way back to Bettinger's "did a couple of lines" of cocaine. At the apartment, right before the defendant arrived, Bettinger, Escott, and Twyman smoked marijuana.

When Escott answered the defendant's knock, he opened the apartment door "all the way up." The defendant saw Twyman in the kitchen. Escott said to the defendant, "You got the fucking balls coming over here. You molested my son." Escott then came toward the defendant, who tried to spray Escott with the mace. Escott "jumped right on top of [him]," and the next thing the defendant remembered "was going down the stairs." The defendant's glasses either fell off or "got punched off." The defendant's knife fell out of his pants. He recovered the knife and started swinging it because he was getting beaten. The defendant felt the knife hit something, but did not know exactly what. The light in the back stairway was broken, so it was dark at the bottom of the stairs. He thought that only Escott was downstairs and was not aware of Twyman's presence. After the struggle stopped, the defendant was pushed out the door onto the porch. After his arrest, the defendant gave a written statement to the police that generally supported his claims that he had not entered the apartment and had acted in self-defense.

(c) The crime of armed home invasion has four elements. To obtain a conviction of the crime, the Commonwealth must show that the defendant (1) "knowingly enter[ed] the dwelling place of another"; (2) "knowing or having reason to know that one or more persons are present within" (or entered without such knowledge but then remained in the dwelling place after acquiring or having reason to acquire such knowledge); (3) "while armed with a dangerous weapon";...

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