Commonwealth v. Garrey
| Decision Date | 07 December 2001 |
| Citation | 765 NE 2d 725,436 Mass. 422 |
| Parties | COMMONWEALTH v. JAMES M. GARREY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, & SOSMAN, JJ.
Wendy H. Sibbison (J.W. Carney, Jr., with him) for the defendant.
Robert C. Cosgrove, Assistant District Attorney (Susanne M. O'Neil, Assistant District Attorney, & Ellen McCusker Devlin, Assistant District Attorney, with him) for the Commonwealth.
The defendant, James M. Garrey, was convicted of murder in the first degree on a theory of extreme atrocity or cruelty. On appeal, he claims that the trial judge erred in (1) denying his motion for a required finding of not guilty; (2) permitting the prosecutor to exercise a peremptory challenge of an African-American juror; (3) discharging a deliberating juror; (4) allowing the substantive use of grand jury testimony; (5) excluding state of mind evidence; (6) admitting evidence of a prior bad act; (7) failing to grant a mistrial after a witness testified to a matter that the judge had previously ruled was inadmissible; (8) excluding evidence of the defendant's exclamations of self-defense; (9) excluding evidence of the defendant's state of mind at booking; (10) giving an initial aggressor instruction on self-defense; (11) failing to give an instruction on the lesser included offense of assault and battery; (12) failing to instruct that a particular witness's grand jury testimony could be used substantively; and (13) failing to sanction the Commonwealth for discovery violations, or, alternatively, to grant a continuance. The defendant also asks us to exercise our power under G. L. c. 278, § 33E, and reduce his degree of guilt. We affirm the conviction, and decline to exercise our power under G. L. c. 278, § 33E.
1. Facts. A jury could have found the following facts. In March, 1997, Tara Carloni, the defendant's former girl friend, told him that she had been having sexual relations with the victim, Corey Skog. In retaliation, the defendant told Skog's girl friend, Doreen D'Amelio, that Skog had been having sexual relations with Carloni. The defendant also told a friend, Paul Cauble, that he knew Carloni had been having sexual relations with Skog, that he wanted to beat up Skog, and that he intended to fight him.
D'Amelio, the defendant, and Skog were all employed at the same office. On the evening of Wednesday, March 26, D'Amelio left her desk at work and stepped outside for a cigarette break. Skog went outside to speak with her. While they were talking, the defendant joined them, stood behind D'Amelio, and began to look at Skog. The defendant raised his hands, made a facial expression of disgust, and walked away. D'Amelio and Skog continued talking. Later that evening, they reconciled after he apologized for his relationship with Carloni.
The next evening, D'Amelio went to a bar in Franklin with Skog and Melissa Wheeler, a friend. They arrived at about 11:15 P.M. They were joined by Scott Haigh, Wheeler's boy friend. Meanwhile the defendant arrived at the bar looking for D'Amelio after recognizing her vehicle in the parking lot. He spoke with her briefly, and later asked her to join him at his table. She obliged. The defendant stared at Skog for a moment, then "[v]ery harshly" asked D'Amelio, "Would you mind if I hit [Skog]?" D'Amelio responded that she "would mind very much." The defendant said, D'Amelio said, She walked away.
Later, while D'Amelio was with Skog, the defendant approached her and said that he was leaving. She noticed that Skog was looking at the door and the defendant was glaring back at him. Skog appeared to be "a little bit anxious, a little nervous."
D'Amelio decided to leave. Skog followed and called after her. The defendant blocked his way and said, "I don't think that would be a good idea." Skog tried to maneuver around the defendant, but the defendant prevented him from leaving. The defendant pushed or dragged Skog through the door into a hallway leading to the exit. Skog, who looked "confused" and "scared," was maneuvering to leave but the defendant said he could not leave. The defendant then started punching Skog. Skog only raised his arms to fend off the blows, and eventually fell. The defendant continued to punch him. Wheeler pulled the defendant off Skog. He had "red splotches on his face [and] looked pretty tired." Haigh held the defendant, and Skog delivered a faint punch to the defendant's face. Haigh then released the defendant. At that point, the defendant was within three to four feet of the door into the bar, and ten to fifteen feet from the door leading to the exit. Nothing prevented him from leaving. He went "right back after [Skog]." Wheeler stepped between them, yelling, "[J]ust ... leave [him] alone." Skog asked Wheeler to take off his glasses, which she did. The defendant struck Skog on his left side. James Arsenault, a bystander who knew none of the participants, saw the defendant stab Skog with a knife. Skog fell to the floor. Blood came through his shirt, and he started shaking. He was conscious and had a pained expression. His eyes were open, but not focused, and were rolling back. The defendant, who was wearing boots, kicked Skog three times in the head. Skog's head bounced "like a soccer ball," twice, off the nearby wall.
The bartender forcibly escorted the defendant toward the exit. Skog was bleeding extensively and had difficulty breathing. Haigh tore open the upper portion of Skog's shirt and saw a wound. He yelled that Skog had been stabbed. The defendant broke free and ran out the door, pursued by a number of people. Richard Morin, a friend of Skog, tackled the defendant in a parking lot across the street. The defendant attempted to stab him, but Morin took the knife away from him and threw it away. Police later recovered the knife. After the defendant was handcuffed, Morin asked him if he had stabbed Skog, and the defendant admitted it.
The defendant testified at trial. He characterized the altercation with Skog as mutual combat, although he could not remember who threw the first punch. He said that he pulled the knife only after Haigh, Wheeler, and Skog advanced on him, and that he did so only to frighten them. He testified that he did not intend to kill him, only to scare him. He said he did not know exactly how Skog came to be stabbed; just that it all "happened so quickly."
2. Motion for required finding. The defendant argues that the evidence was insufficient as matter of law to sustain a conviction of murder on a theory of extreme atrocity or cruelty, and that his motion for a required finding of not guilty should have been allowed. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). He contends that the evidence was insufficient to establish the presence of any of the factors we identified in Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). We have stated that so long as one or more of the Cunneen factors are present, "[w]hether extreme atrocity or cruelty exists `must be decided by the jury, who, as the repository of the community's conscience, can best determine when the mode of inflicting death is so shocking as to amount to extreme atrocity or cruelty.'" Commonwealth v. Hunter, 416 Mass. 831, 837 (1994), S.C., 427 Mass. 651 (1998), quoting Commonwealth v. Connolly, 356 Mass. 617, 628, cert. denied, 400 U.S. 843 (1970).
One such factor to be considered by the jury is the defendant's "indifference to or taking pleasure in the victim's suffering." Commonwealth v. Cunneen, supra.
There was evidence that the defendant inflicted knife wounds on Skog after beating him soundly with his fists. As Skog was lying on the floor conscious, in pain, and shaking, the defendant kicked him up to three times in the head hard enough to cause his head to bounce off the wall twice. The evidence was sufficient to support a finding of extreme atrocity or cruelty.
3. Peremptory challenge. The defendant objected to the prosecutor's peremptory challenge of a prospective juror, claiming that she was the only African-American in the venire. The judge initially expressed doubt that she was African-American. After noting that neither the defendant nor Skog was African-American, the judge asked the prosecutor to provide a reason for the challenge. The prosecutor stated she was challenging the prospective juror because she was a guidance counsellor, and not because of her race. After some discussion, the judge agreed that an occupation in a rehabilitative field might be some indication of a prospective juror's inclination toward sympathy, and he allowed the challenge. In response to defense counsel's persistent concern that the prospective juror was indeed the only African-American in the venire, the judge asked her if she was a member of a minority group, to which she responded affirmatively. In concluding the matter, the judge noted that the victim, the witnesses, and the defendant were not members of a minority, and confirmed his decision.
A peremptory challenge is presumed to be proper, but the presumption may be rebutted on a showing that "(1) there is a pattern of excluding members of a discrete group and (2) it is likely that individuals are being excluded solely on the basis of their membership within this group." Commonwealth v. Curtiss, 424 Mass. 78, 80 (1997). "Factors in the assessment include not only the numbers and percentage of group members excluded, but also common group membership of the defendant and the jurors excluded, and of the victim and the remaining jurors." Commonwealth v. Robinson, 382...
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