Commonwealth v. Fahey

• Citation: 165 N.E.3d 1057,99 Mass.App.Ct. 304
• Decision Date: 15 March 2021
• Docket Number: No. 19-P-1487,19-P-1487
• Parties: COMMONWEALTH v. Paul FAHEY.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 304

165 N.E.3d 1057

COMMONWEALTH

v.Paul FAHEY.

No. 19-P-1487

Appeals Court of Massachusetts, Norfolk..

Argued December 11, 2020.

Decided March 15, 2021.

Barbara A. Munro, Northampton, for the defendant.

Michael McGee, Assistant District Attorney, for the Commonwealth.

Present: Vuono, Milkey, & Ditkoff, JJ.

MILKEY, J.

The defendant and the victim, Keith Boudreau, did not know each other. By happenstance, they both were at the Home Ice Sports Bar (Home Ice) in the city of Quincy on the night of March 23, 2015. There, the defendant punched Boudreau in the head, causing him to fall to the bar's tiled floor. The defendant then stomped on Boudreau while he was lying on the floor and, eleven days later, Boudreau died of a head injury. The defendant was indicted for murder in the first degree, and a Superior Court jury found him guilty of murder in the second degree. On appeal, he argues, among other things, that the evidence was sufficient to convict him only of manslaughter, not murder. We disagree. However, we agree with the defendant that a new trial is warranted based on the cumulative effect of the prosecutor's improper cross-examination and inflammatory closing argument. We therefore vacate the conviction.

Background. We summarize the trial testimony and other evidence, reserving certain details for later discussion. At 2 P.M. on the date in question, Boudreau was at a bar "around the corner" from Home Ice, celebrating his fiancée's birthday. At one point, his fiancée's brother, Erik Manley -- while seated in his wheelchair -- hit Boudreau by either slapping him in the jaw or punching him in the nose. Eventually, Boudreau was escorted out of the bar, and he and his fiancée went to Home Ice. While drinking at Home Ice, Boudreau began arguing with his fiancée to the point that they were asked to leave that bar as well. The defendant and his girlfriend were present when Boudreau was asked to leave, but they did not interact with him.

A half-hour or so later, Boudreau came back to Home Ice alone. At that time, the defendant and his girlfriend were seated at the bar counter, drinking beer. Boudreau, who was exhibiting signs of intoxication, stood directly over the defendant's shoulder, asking if anyone had seen his fiancée.

There was evidence that Boudreau was staring at the defendant or the defendant's girlfriend, either directly or as reflected in the mirror behind the bar counter. The defendant then -- seemingly "out of the blue" -- punched Boudreau in the side of the head, causing him to fall and to hit his head on the tiled floor. At this point, the bartender heard the defendant say "something about [Boudreau's] staring at him and that he was sick of the junkies in Quincy."¹ The defendant approached the now-prone Boudreau and stomped once with his foot. It was uncontested that, at the time, the defendant weighed well more than 200 pounds and was wearing heavy work boots that had a patterned sole. One witness, Home Ice's owner, Gerard DeLuca, testified that he saw the boot come down on the side of Boudreau's head. The other witnesses saw the defendant stomp, but they did not see what part of Boudreau's body, if any, was hit. The witnesses at the scene described the sound that the boot made when it came down as a "thud" or a "crack."

According to DeLuca, after the incident, the defendant told him not to call 911 and to "keep [his] mouth shut." DeLuca then helped the defendant drag Boudreau's unconscious body through Home Ice's kitchen to a rear parking area. At some point, Boudreau vomited, but he otherwise was "motionless." The defendant splashed some water on Boudreau's face, but Boudreau did not regain consciousness.

The defendant then left Home Ice, but he paused just outside the bar to speak with another bar patron and a passing friend, Patrick Dugan. Dugan testified that during this conversation, the defendant acted out what just had occurred inside Home Ice, and admitted that he both punched "a guy staring at him" and "stepped on him." The interaction among the defendant, Dugan, and the third person was also captured on a video surveillance camera, albeit without sound. The video recording corroborated Dugan's testimony by showing the defendant at one point using his left fist to reenact the punch that had felled Boudreau. Moreover, as the defendant was leaving the conversation to get into a car, he can be seen apparently stomping his foot on the ground. The defendant ultimately left and stopped "at another bar and had a quick drink ... to calm [his] nerves."

After the defendant left Home Ice, DeLuca called 911. He reported that Boudreau was intoxicated, and did not say anything about the altercation. Paramedics took Boudreau to a local emergency room in Quincy. The attending nurse observed that Boudreau appeared to be intoxicated; she did not see external signs of trauma to Boudreau's head other than some dried blood around his nostrils. However, when Boudreau's condition did not improve after about one and one-half hours, the nurse suspected that Boudreau had suffered a serious head injury. A computer assisted tomography (CAT) scan revealed bleeding inside Boudreau's head. Boudreau was rushed to Massachusetts General Hospital, where surgery was performed. Boudreau died eleven days later.

A medical examiner, Dr. Robert Welton, conducted the autopsy and opined that the cause of death was "blunt force injury of the head." He explained that the fatal head injury could have been caused by a "punch to the head," by "somebody striking a hard surface on the floor," or "by a boot." The medical examiner also testified that it was "unlikely" that the injury was caused by a "slap to [Boudreau's] jaw." When he examined Boudreau's body, the medical examiner did not "see any visible external injuries on his head," including any "bruising," "scraping," or "swelling" (with the exception of around the incision from the surgery). When asked on cross-examination, "[I]f someone were to stomp on someone's head with a heavy work boot with a pattern, it's likely that there could be some visible external injuries; correct?" the medical examiner answered, "Potentially, yes." On redirect examination, he subsequently added that a boot that came down on someone's head "without any lateral movement" would "[n]ot always" leave external injuries. The medical examiner did mention, albeit in passing, that "[t]here was some contusions on the torso of [Boudreau's] body."

The defendant testified on his own behalf and admitted that he punched Boudreau on the right side of Boudreau's face with his left hand. He denied that he stomped on Boudreau's head.² The defendant claimed that he made a split-second decision to punch Boudreau out of fear that Boudreau was about to attack him. He described how Boudreau, who had been staring at him and had one hand in his pocket, made a sudden movement toward him. There was no evidence to corroborate the defendant's claim that Boudreau had made a sudden movement toward him and, ultimately, the jury found that the defendant had not acted in self-defense and convicted him of murder in the second degree. The jury acquitted the defendant of a witness intimidation charge based on his comments to DeLuca.

Discussion. 1. Sufficiency. The defendant argues that the evidence was insufficient to support a conviction of murder in the second degree. We disagree. A conviction of murder in the second degree requires proof, beyond a reasonable doubt, that a defendant committed an unlawful killing with "malice." Commonwealth v. Earle, 458 Mass. 341, 346, 937 N.E.2d 42 (2010). Malice, in turn, can be demonstrated in any of three ways: "(1) the defendant intended to cause the victim's death; (2) the defendant intended to cause grievous bodily harm to the victim; or (3) the defendant committed an intentional act which, in the circumstances known to the defendant, a reasonable person would have understood created a plain and strong likelihood of death." Id.

Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), the evidence established that, without any provocation, the defendant first punched Boudreau on the side of the head, and then stomped on his head as he lay unconscious on the floor. This evidence was sufficient for a jury to find, beyond a reasonable doubt, that the defendant unlawfully killed Boudreau and did so with malice.

The defendant argues that jurors could not find beyond a reasonable doubt that he caused Boudreau's death, because it is possible that Boudreau died from the injury he sustained earlier in the day when he was struck by Manley. However, the evidence, viewed in the light most favorable to the Commonwealth, established that Manley only slapped Boudreau in the jaw, rather than punched him in the nose. As noted, the medical examiner stated his opinion that it was "unlikely" that a "slap to the jaw" caused Boudreau's internal bleeding. In any event, the fact that the medical examiner acknowledged the theoretical possibility that Manley's hitting Boudreau might have caused his death did not preclude the jury from finding that the defendant's actions were the proximate cause of the death. See Commonwealth v. McLeod, 394 Mass. 727, 746-748, 477 N.E.2d 972, cert. denied sub nom. Aiello v. Massachusetts, 474 U.S. 919, 106 S.Ct. 248, 88 L.Ed.2d 256 (1985) (even where Commonwealth's expert was unable to say whether victim died from blows inflicted by defendant or those inflicted by others, there was sufficient over-all evidence to support jury's finding that defendant's actions were proximate cause). See also Commonwealth v. Rhodes, 482 Mass. 823, 825, 829, 129 N.E.3d 287 (2019) (even in face of conflicting expert testimony whether victim would have died from defendant's slamming her head onto concrete floor, had she not subsequently been run over by tow truck, "the jury would have been justified in finding that the...