Commonwealth v. Issa
| Decision Date | 18 July 2013 |
| Citation | 466 Mass. 1,992 N.E.2d 336 |
| Parties | COMMONWEALTH v. Souleymane Yacouba ISSA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Robert L. Sheketoff, Boston, for the defendant.
Anne Pogue Donohue, Assistant District Attorney, for the Commonwealth.
Present: SPINA, BOTSFORD, GANTS, & DUFFLY, JJ.
A Superior Court jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation, in violation of G.L. c. 265, § 1, for the killing of Maryse Antoine (victim), the mother of his young daughter.2 The defendant raises four issues on appeal. First, he claims that the trial judge erred in allowing the prosecutor to exercise a peremptory challenge of the only African–American male who remained in the venire without determining that the prosecutor had a bona fide group-neutral reason for the challenge, and thereby denied him his State and Federal constitutional rights to equal protection and a fair and impartial jury. Second, he contends that the judge's sanctions and jury instructions, which were crafted in response to defense counsel's violation of an order of reciprocal discovery, denied him his State and Federal constitutional rights to a fair trial. Third, he maintains that the judge erred in failing to provide the jury with the instruction required in Commonwealth v. DiGiambattista, 442 Mass. 423, 447–448, 813 N.E.2d 516 (2004), regarding his unrecorded interview with the police that followed his voluntary arrival at the police station a few hours after the victim's body had been discovered. Fourth, the defendant claims that the prosecutor made various improper and prejudicial statements in her closing argument. For the reasons detailed below, we affirm the conviction and, after a complete review of the record, decline to exercise our plenary authority under G.L. c. 278, § 33E, to order a new trial or reduce the murder conviction to a lesser degree of guilt.
Background. We summarize the evidence supporting the conviction, reserving certain details of the trial for our discussion of the alleged errors.
The defendant and the victim had dated, lived together, and parented a daughter, who was born in 2005. During the course of their relationship, the victim's family members and friends had observed the defendant “scream” at her, slap and punch her, threaten to strike her with a chair, threaten her life and that of her family, and tell her that he would find a way to kill her without using a gun. The defendant demanded to know with whom the victim had been and what she had been doing, and used her cellular telephone to identify unknown callers.3
In March, 2009, they no longer lived together, but the defendant often visited and stayed overnight at the victim's home in Waltham, where she lived with her eighteen year old son and three and one-half year old daughter. In the months leading up to her death, the victim and the defendant had been planning to initiate a cleaning business. The defendant lived in Taunton and, unbeknownst to the victim's family, had married and was living with his wife, Susan Dubuc.
On the evening of March 20, 2009, the defendant visited the victim for three hours at her home, where they tested cleaning products. On March 21, a sister of the victim (Guile Sautier) and her family visited the victim at her home, and remained there from approximately 4:30 p.m. to 8:30 p.m. At approximately 10:15 p.m., the victim telephoned her teenage son and asked him to come home to take care of his sister because she had to “meet him at a site”; her son understood her to mean that she was going to meet the defendant at a cleaning site. Her son returned home around 10:30 p.m., and the victim soon left. At approximately 10:50 p.m., the victim telephoned her son and asked if he wanted her to bring him something to eat. The victim did not return home the next morning and did not answer her son's telephone calls, so the son contacted the victim's two sisters and the defendant. The defendant told the son that he had not spoken with the victim since 6:30 p.m. on March 21, and that he had not met with her that evening.
The victim often visited another sister, Yves Nelson, who lived nearby in Waltham. The victim had keys to Nelson's apartment. Nelson had stayed overnight with relatives on March 21 and returned home to her apartment at approximately 4 p.m. on March 22. After unlocking the apartment door, she found the victim lying on the living room floor, apparently lifeless, and telephoned 911.4 The victim's pants had been pulled down, there were bleach stains on her jacket and on the rug near her body, a capped needle from a syringe was on the floor a few feet from her body, and a small piece of dark blue string was next to her shoulder. The victim showed signs of rigor mortis, and was later declared dead.
At the crime scene, apart from the piece of dark blue string on the floor next to the victim's shoulder, investigators observed a brown mark around the victim's neck, a tiny piece of string embedded in her neck, and a piece of dark blue string around the right side of her neck. A medical examiner opined that the victim's death was caused by strangulation by ligature. A swab taken from the broken string found near the victim's right shoulder was submitted for Y-chromosome short tandem repeat (Y–STR) deoxyribonucleic acid (DNA) testing, which looks only at DNA from the Y-chromosome, found only in males, and compares the questioned DNA profile, not with a particular individual's DNA profile, but with the DNA profile of the paternal lineage of a family. 5 The Y–STR DNA testing revealed that the defendant's paternal lineage was a potential contributor of the DNA profile taken from the string; the probability of inclusion was one in 1,156 in the African–American population, which meant that the DNA on the Y-chromosome of 99.91 per cent of African–American men would not match the DNA profile from the string.6
The police also removed a gummy substance that covered the peephole on the door leading into Nelson's apartment. Short tandem repeat (STR) DNA testing was conducted of a swab taken from that substance, and the defendant's DNA was found to be a potential contributor to the DNA from that swab. The probability that a randomly selected individual would have that DNA profile was one in 66.23 quadrillion for the African–American population.
The defendant stipulated at trial that the white residue on a capped needle from a syringe found near the body was acetaminophen and codeine. Toxicological testing performed by the Commonwealth revealed that neither drug was present in the victim's body. The defendant worked in a quality control laboratory where he had access to an area that required a special pass for admittance where capped needles of the same size and type were stored in an unlocked drawer.
Waltham police Detective Lieutenant Brian Navin and Detective Patrick Hart arrived at Nelson's apartment at 5:40 p.m., but were soon summoned back to the police station after being told that the victim's former boy friend (the defendant) had arrived at the station. Navin and Hart spoke with the defendant in an upstairs room at the station for approximately thirty minutes; the interview was not recorded. The interview began with the defendant answering the detectives' questions about the victim's physical and mental health, which they asked because they did not yet know what caused the victim's death. The defendant described his whereabouts on the previous day. He said that he had gone to Nelson's apartment at 6:30 p.m. on March 21 to pick up his daughter (who was not there), and met with the victim for approximately one-half hour. He said that the victim had invited him inside the apartment, but he remained in the entryway. He said that he then went to the victim's apartment in search of his daughter, but nobody was home, so he left. He said he then drove to pick up Dubuc, who was waiting for him at a pharmacy in Waltham, and went with her first to a restaurant in Waltham and then to a department store in Waltham. He said he then left Dubuc at a tavern in Waltham at approximately 9 p.m., drove back to the victim's apartment (and found no one home), drove to a brother's residence in Waltham to pick up mail, returned to the tavern, and drove home with Dubuc to Taunton.
Other evidence contradicted the time line given by the defendant concerning his whereabouts on March 21. He told the police that he spent time with the victim at Nelson's apartment at 6:30 p.m., but the victim was at her home with Sautier and her family from approximately 4:30 p.m. to 8:30 p.m., and had stepped out for only a few minutes to retrieve a pair of pliers from her vehicle. Independent evidence corroborated that the defendant had left Dubuc at a tavern in Waltham at approximately 9 p.m., but, although Dubuc had stepped out of the tavern and returned, she did not finally depart until approximately 11:40 p.m., which is substantially later than the time necessary for the defendant to have left the tavern, gone to the victim's apartment to find no one home, pick up mail at his brother's home in Waltham, and return to the tavern to pick up Dubuc. Cellular telephone records revealed that Dubuc repeatedly telephoned the defendant between 9:46 p.m. and 11:40 p.m., but there is no record of his receipt of these calls or the location of his telephone during this time period, which suggests that the defendant's telephone was turned off or without battery power during this time period. The next call involving the defendant's telephone occurred at 12:39 a.m. on March 22, at which point the telephone was located in the Tauntonarea. 7 The discrepancy in this time line is critical because, according to cellular telephone records, the victim was alive at 10:54 p.m. on March 21, when she made her last telephone call, which was to Nelson.8
The defendant was indicted by a grand jury in ...
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