Commonwealth v. Dyer

• Decision Date: 13 October 2011
• Docket Number: SJC–07460.
• Citation: 955 N.E.2d 271,460 Mass. 728
• Parties: COMMONWEALTHv.Charles P. DYER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

460 Mass. 728

955 N.E.2d 271

COMMONWEALTH

v.Charles P. DYER.

SJC–07460.

Supreme Judicial Court of Massachusetts, Bristol.

Argued May 6, 2011.Decided Oct. 13, 2011.

Judith H. Mizner for the defendant.

William R. Connolly, Assistant District Attorney, for the Commonwealth.Present: IRELAND, C.J., SPINA, BOTSFORD, GANTS, & DUFFLY, JJ.BOTSFORD, J.

A jury in the Superior Court found the defendant, Charles P. Dyer, guilty of murder in the first degree of Roy Drew on a theory of deliberate premeditation, and also of armed assault with intent to kill George Eldridge.¹ Before us is the defendant's appeal from his convictions and from the denial of his motion for a new trial. The defendant argues that he is entitled to reversal of the convictions and a new trial on the grounds that the court room was improperly closed during individual voir dire of prospective jurors; the judge, outside the presence of the defendant, improperly questioned jurors and discussed questions from the jury; he was improperly denied a posttrial evidentiary hearing on the possible bias of two deliberating jurors; the trial judge committed evidentiary errors; the judge's instructions on malice, voluntary manslaughter, and self-defense were in error; and his trial counsel was ineffective in many respects. We affirm the defendant's convictions and the denial of his motion for a new trial, and we decline to exercise our power under G.L. c. 278, § 33E.

1. Background. a. We recite the facts as the jury could have found them at trial, reserving other facts for later discussion. The events giving rise to the indictments took place on June 28, 1991, in the apartment of Carol Drew (Carol) ² in Fall River. The defendant was the long-time boy friend of Carol's daughter, Janice Drew (Janice). As of June, 1991, Janice and the defendant had lived together for approximately eight years and they had a four year old daughter together, but around June 9, Janice left the defendant in Maine, taking their daughter with her. She and the child came to the Fall River area, and by June 28, they were living in a homeless shelter in neighboring New Bedford. The defendant was desperate to find Janice and their daughter.

Early in the morning of June 28, following a telephone call from the defendant, Carol told her son George Eldridge (George), who was staying with her, that the defendant was coming to the apartment. The defendant arrived and said he had some important information for Roy Drew (Roy), another son of Carol. Following a brief conversation, the defendant left, with plans to return thereafter to speak with Roy. Later that morning, the defendant returned at the same time as Roy; the defendant told Carol, George, and Roy that he had compromising videotapes of Janice, and that he had shown them to the police. Roy left to get Janice, leaving the defendant with George for several hours.

That afternoon, Carol, Roy, Janice, and the child rejoined George and the defendant in Carol's apartment. Carol, Roy, Janice, George, and the defendant engaged in a tense discussion around the kitchen table regarding the defendant's desire to have Janice and the child return to live with him; Janice's refusal to do so; the Drew family's demands for financial support from the defendant; and the defendant's claim that his videotapes of Janice were damaging to her. Some time into the conversation, the defendant went to his car and retrieved a brown satchel and one videotape. He played a portion of it for Roy, George, and Janice; it showed Janice engaged in sexual acts. When the Drews denied the videotape was damaging, the defendant returned to his car and came back with a small blue suitcase, containing additional videotapes. He played the second videotape depicting Janice in sexual acts, and Roy, George, and Janice grew more upset.

The conversation resumed in the kitchen. Janice said she wanted $7,000 from the defendant to move with the child and her brothers out of State, and resettle where he could not find them. The defendant claimed to have a videotape of Janice with two men. When Janice, visibly upset, claimed she had been raped by the two men, the defendant acknowledged setting up the rape in order to record it. He then said that he would give George the money Janice wanted, and that he intended to kill himself. Janice watched the defendant walk to the brown satchel, open it, and pull out a gun.

George had been standing near the kitchen table with his head down, and when he looked up, he saw the defendant standing near the apartment door with a gun in his hand. Roy was next to the defendant. Roy stepped forward and told the defendant to give him the gun. The defendant took a step toward Roy, the gun fired, and Roy fell to the floor. George, standing on the other side of the table next to Janice, pulled her to the floor, and another shot was fired. George then stood up and lifted up one of the kitchen chairs, holding it in front of himself; the defendant shot George in the left hand. After George fell to the floor, the defendant kicked him and shot him in the shoulder. The defendant then went into the bedroom where Carol was holding the child. He pointed the gun at Carol, but it did not fire. Janice ran into the bedroom after the defendant and began hitting him on the back with her hands; the defendant turned, put the gun to her head, and “clicked it,” but the gun again did not fire. The defendant hit Janice on the head with the gun, and she fell to the floor.

The defendant left the apartment. Carol yelled for someone to contact the police, and a neighbor did. The police arrived almost immediately. George survived his two gunshot wounds, but Roy died as a result of a gunshot wound to the chest. The police discovered the defendant's car parked near the apartment, and in it found many of the defendant's belongings, including at least four identification cards showing the defendant's photograph and a variety of names, none of them the defendant's.

b. The defendant testified at trial. He explained that he set up the videotape surveillance of Janice because he suspected she was an unfit parent, but that in early June, 1991, when Janice discovered that he had recorded her, she left him in Maine and took the child. The defendant further explained that the focus of all his activities was to find Janice and the child and to seek a resolution of the issues between him and Janice so that he could be with the child. He arrived at Carol's apartment early in the morning of June 28, and sometime later, Roy arrived. He and Roy then left the apartment and went to the defendant's car, where he showed Roy the videotapes he had brought as well as a gun. Roy proposed that they sell the gun, and when that turned out not to be immediately possible, Roy took possession of the gun. Roy and the defendant eventually returned to Carol's apartment, and at some later point, Roy left to get Janice and the child.

According to the defendant, in the conversation after Roy and Janice returned, Janice and her brothers insisted that Janice would be moving out of State with the child, and they demanded money—at least $8,500—from him. He denied responsibility for setting up or videotaping a rape of Janice, but once he retrieved and played the two videotapes, “everyone was screaming at [him].” He tried to leave the apartment, but George blocked his exit. Roy was on the defendant's other side, and the defendant turned so that he was backed up against the wall. Roy was saying the defendant would never have visitation rights to see his daughter.

At this point, his daughter ran across the room, screaming for the defendant to help her. George was repeatedly demanding the money that the defendant had indicated he would provide for Janice. When the defendant reached into the brown satchel to get the money, Roy hit the defendant low in the stomach with the gun, which had been in Roy's possession since the morning, causing the defendant to bend over. Roy had both hands on the gun. The defendant, still holding the blue suitcase in one hand, with his other hand “grabbed” the gun and Roy's hand and twisted them. George grabbed the defendant's arm in a grip the defendant could not break, and the defendant struggled with Roy, who was “smashing” him against the wall. When the defendant's arm was pulled, the gun went off, and Roy fell to the floor.

George then hit the defendant with a chair, and the defendant picked up the gun from where it had fallen on Roy's prone body. The defendant shot at the chair twice to scare George. George tried to push the defendant down the stairs, and the defendant pulled the trigger of the gun again, this time hitting George. Thereafter, the defendant briefly picked up his daughter, who was standing by herself in the bedroom. Carol then pushed him, and when he turned around to leave the bedroom, Janice grabbed him. The defendant could not get away, and “might have hit [Janice] on the top of the shoulder maybe twice.” At that point, the defendant put the gun on the table, briefly went over to George and saw that George was breathing. The defendant then turned to see about Roy, but Carol yelled repeatedly that she was going to kill the defendant, so he left the apartment.³

The defendant's trial was held in the summer of 1994. At its conclusion, as stated, the jury, inter alia, found the defendant guilty of murder in the first degree of Roy, and of armed assault with intent to kill George,⁴ but not guilty of assault with intent to murder Carol or Janice. While the defendant's appeal was pending in this court, he filed a motion for a new trial that was heard by a Superior Court judge (motion judge) other than the trial judge.⁵ After a nonevidentiary hearing, the motion judge denied the new trial motion in a comprehensive written decision. The defendant timely appealed, and his consolidated appeal from his convictions and from the denial of his motion for a new trial is now...