Commonwealth v. Howard

• Decision Date: 02 October 2014
• Docket Number: SJC–11128.
• Citation: 16 N.E.3d 1054,469 Mass. 721
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Clyde HOWARD.

469 Mass. 721

16 N.E.3d 1054

COMMONWEALTH

v.Clyde HOWARD.

SJC–11128.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 7, 2014.

Decided Oct. 2, 2014.

Robert F. Shaw, Jr., Cambridge, for the defendant.

Jamie M. Charles, Assistant District Attorney, for the Commonwealth.

Present: SPINA, BOTSFORD, GANTS, & LENK, JJ.

Opinion

BOTSFORD

, J.

A Superior Court jury found the defendant, Clyde Howard, guilty of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.¹ The defendant appeals his conviction, arguing that (1) the motion judge erred in denying his pretrial motion to suppress statements that he made to police both on the day of his arrest and on the following day during an interview with police; (2) the Commonwealth impermissibly focused on prior bad acts and character evidence during trial; (3) statements made by the prosecutor during his closing argument prejudiced the defendant and warrant a new trial; and (4) the jury instructions on mental impairment

and the voluntariness of the defendant's statements were erroneous and warrant reversal of his convictions. Pursuant to our review of the entire case under G.L. c. 278, § 33E

, we conclude that the erroneous admission of portions of the defendant's statement to the police, combined with other errors, require reversal of the defendant's conviction of murder in the first degree. On remand, at the Commonwealth's option, a verdict of murder in the second degree may be entered in lieu of a new trial on the indictment charging murder in the first degree.

1. Background. We recite the facts as the jury could have found them, reserving other facts for later discussion. On the morning of January 28, 2009, the victim, Maurice Ricketts, was shot in the head and killed while at his job at Baystate Pool Supplies (Baystate), a pool supply distributor located in Cambridge. He was shot by the defendant, who worked at Baystate as a handyman.

Earlier that morning, at around 9 a.m. , the defendant was asked by the Baystate branch manager Derek Roczynski and operations manager Michael Najarian, Jr., to buy breakfast for them at a local fast food restaurant.² After breakfast, Najarian joined the victim in the warehouse known to Baystate employees as the “chemical building,” located directly across the street from Baystate's offices and other warehouses. Shortly after 10 a.m. , the defendant entered the front door of the chemical building carrying a bag of trash. Singing and joking with Najarian as he passed, he walked down a pathway toward the back exit and out to the dumpster. This outdoor area was known to employees as the “chemical backyard” (chemical yard). After taking out the trash, the defendant returned through the chemical building and proceeded to leave through the front door, but then turned around, reentered, and exchanged words with the victim who was working nearby. Najarian heard an “explosion of yelling” between the defendant and victim, and he approached them, “scream[ing]” for them to stop. Within moments, the defendant reached into his right pocket, pulled out a gun, and pointed it at the victim, who turned and ran through the warehouse toward the back door leading to the chemical yard. The defendant fired once, missing the victim, and then quickly followed him. Najarian shouted

twice at the defendant to “stop it”; each time, the defendant responded, “What?” but continued to pursue the victim while looking straight ahead toward the back door.

After the two men ran out of the warehouse, Najarian ran to the company offices across the street, where he alerted Roczynski and assistant manager James McGaffigan before telephoning 911. Roczynski and McGaffigan immediately ran toward the chemical building but heard shots coming from the chemical yard before they reached the building entrance. They ran along the building toward the chemical yard and peered through an opening in the locked fence. There, they saw the defendant facing the back of the dumpster with his arm outstretched and pointed slightly downward, and then heard two additional shots. After each shot, Roczynski heard the victim make a grunting sound and, after the second, also heard the defendant mutter, “I got you.” Roczynski then shouted, “[W]hat the f are you doing”; the defendant briefly glared at him. McGaffigan saw the defendant walk toward the back door, stop, return to the dumpster area, and fire an additional shot. Roczynski and McGaffigan returned to the entrance of the chemical building, and Roczynski bumped into the defendant, who was coming out of the door. The defendant muttered, “I got to get out of here,” ran to a white van, and drove away.

Roczynski, McGaffigan, and other Baystate workers rushed to the chemical yard where they found the victim behind the dumpster, wedged between a stack of wood pallets. He had suffered two gunshot wounds

to the head. Shortly thereafter, paramedics responded to the scene and, finding a faint pulse, transported him to the hospital. During transport, the victim went into cardiac arrest, and medics performed cardiopulmonary resuscitation on him. He was pronounced dead shortly after arriving at the emergency room.

Later that day, at approximately 4 p.m. , Sergeant Thomas J. Teahan of the Boston police department heard a radio broadcast to be on the lookout for the defendant in a white van in the Roxbury area. Teahan, who was driving in Roxbury at the time, came across a van parked alongside the road that matched the description of the defendant's vehicle. He called for backup, parked his vehicle to block the van, and approached the driver's side door on foot. Teahan observed the defendant apparently asleep in the driver's seat with a cellular telephone at his ear; he removed the defendant from the van and conducted a pat frisk to locate weapons. When Teahan asked the defendant if he was

carrying a firearm, he replied, “No, I threw it in the Charles River.” The defendant was then placed under arrest, handcuffed, and transported to the Boston police department station in Roxbury for initial booking (Roxbury booking). At the station, Teahan read the defendant the Miranda rights and informed him that he was under arrest for murder. During the booking, the defendant made several unsolicited statements to Teahan.

Thereafter, State police Trooper Erik Gagnon and two Cambridge police officers transported the defendant to the Cambridge police department for further booking (Cambridge booking). Gagnon detected the odor of alcohol on the defendant's breath, as well as slurred speech and a slightly unsteady gait while the defendant was walking, although he was not slipping, falling, or stumbling. During the twenty-five minute ride to Cambridge, the officers did not ask the defendant any questions. Nevertheless, the defendant made several unsolicited statements about the events that had transpired earlier in the day. At around 5:15 p.m. , the defendant arrived at the Cambridge police department where he was booked, his clothing was taken, and he was placed in a cell. Thereafter, Gagnon and his colleagues decided that because the defendant appeared “somewhat impaired,” they would wait until the following morning to interview him. The next morning, at approximately 6:30 a.m. , Gagnon and Detective Daniel McNeill of the Cambridge police department interviewed the defendant.

At trial, the defendant did not dispute that he shot and killed the victim. He did not testify but presented evidence to show that, because of a mental impairment

, he lacked the capacity to commit murder in the first degree at the time of the killing. In particular, the defendant introduced the testimony of Dr. Robert Joss, a certified forensic psychologist, who opined that at the time of the killing the defendant had an Axis II personality disorder, not otherwise specified, with obsessive compulsive, schizoid, and paranoid features. Joss characterized the defendant as having a “substantial disorder of perception, particularly the perception of the sort of social interactions that grossly impaired his judgment.” Therefore, whether the defendant actually was threatened or intimidated by the victim on the day of the killing was immaterial because the defendant was “predisposed to perceive [the victim] as threatening.” Overall, Joss concluded that at the time of the killing, the defendant had a diminished capacity to form the intent necessary to premeditate deliberately or to act with extreme atrocity or cruelty, as well as more generally the intent necessary for malice.

In rebuttal, the Commonwealth called Dr. Alison Fife, a psychiatrist, who testified to her opinion that at the time of the killing, the defendant was not suffering from any mental illness, mental defect, or personality disorder, and had the capacity to appreciate the wrongfulness of his acts.

2. Motion to suppress. Before trial, the defendant moved to suppress statements he made after his arrest on January 28, 2009, on the ground that they were involuntary due to his intoxication; he also argued that the statements made during his interview with police on January 29 were obtained in violation of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

, and his constitutional right against self-incrimination.³ After an evidentiary hearing, the motion judge, who was the trial judge, denied the motion. The defendant argues that the denial constituted error.

a. Standard of review. “In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of [her] ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004)

, quoting Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). We “make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found.” Id., quot...