Commonwealth v. Johnston

• Decision Date: 08 April 2014
• Docket Number: SJC–09919.
• Citation: 467 Mass. 674,7 N.E.3d 424
• Parties: COMMONWEALTH v. Bryan R. JOHNSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

467 Mass. 674

7 N.E.3d 424

COMMONWEALTH

v.Bryan R. JOHNSTON.

SJC–09919.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued Dec. 6, 2013.

Decided April 8, 2014.

David J. Nathanson, Boston, (Dan A. Horowitz with him) for the defendant.

Steven Greenbaum, Assistant District Attorney, for the Commonwealth.

Present: SPINA, CORDY, BOTSFORD, DUFFLY, & LENK, JJ.

SPINA, J.

The defendant was convicted of (1) murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder; (2) armed burglary; (3) possession of a large capacity firearm in the commission or attempted commission of a felony; and (4) possession of a large capacity firearm without a license. He filed a motion for a new trial that was denied without an evidentiary hearing. His appeal from the denial of his motion for a new trial has been consolidated with his direct appeal. The defendant asserts that the judge erred in several evidentiary rulings, that counsel rendered ineffective assistance by failing to object to inadmissible evidence and by offering inadmissible evidence, that the prosecutor made improper closing argument, and that the judge gave erroneous instructions to the jury—particularly as to the issue of lack of criminal responsibility. We affirm the judgments of conviction and decline to reduce the degree of guilt or order a new trial pursuant to our power under G.L. c. 278, § 33E.

1. Background. a. The offenses. We summarize facts the jury could have found and reserve other details for discussion of particular issues. The defendant and the victim were members of a large circle of friends who had graduated from the same high school in June, 2000, and remained close. Both men attended a friend's wedding in June, 2004. The defendant became drunk and told the victim's girl friend that her brother was taking drugs. This upset her, and she asked the victim if what the defendant told her was true. The victim confronted the defendant. The details of the conversation are not certain.

The defendant telephoned the victim at about 10:30 P.M. on December 6, 2004, and invited him to go out drinking. The victim declined and the conversation did not end well. Few details of the conversation are known. A few minutes later the victim told his girl friend that the defendant “[was not] the same anymore.” At about the same time a woman who lived in an apartment directly above the defendant's apartment heard angry shouting and cursing coming from the defendant's apartment. It sounded as if it were taking place during a telephone call.

Shortly thereafter the defendant drove approximately thirty-one miles from his apartment in Westfield to the house in Amherst where the victim lived. At about 12:20 a.m. on December 7, the defendant entered the house. He had been there many times. He walked upstairs to the victim's bedroom with a rifle and fired six hollow-point bullets into the victim, killing him. A roommate of the victim, the only other person in the house, heard the gunshots but he did not see the shooter. He telephoned 911 and Amherst police arrived within minutes.

On his way back to Westfield the defendant stopped in the vicinity of a restaurant in Hadley. He disposed of the rifle in a wooded swampy area. As he was leaving he drove over a log, immobilizing his car. A snow plow operator stopped to help. The defendant said he had been drinking and did not want the police to come. The operator applied his own strength while the defendant worked the car's engine, but they were unable to free the car. The defendant asked the operator to use his truck, but the operator declined and drove off.

At about 12:45 a.m. two Hadley police officers driving separate police cars were dispatched to the area of the restaurant. They observed the defendant's disabled car and stopped. The defendant approached one officer and said that his car was stuck and he needed help to free his car. He added that he had come from a friend's house and had stopped to urinate. The officers detected a mild odor of alcohol on the defendant's breath. His eyes were glassy and mildly bloodshot. When asked if he had been drinking the defendant said that he had consumed some alcohol much earlier that evening, but was fine at that time. The defendant said that he was a Springfield police officer, but later clarified that he was a special police officer at Baystate Medical Center (Baystate) in Springfield. One of the officers had worked at Baystate and telephoned a night supervisor there. He learned that the defendant was not a Baystate special police officer but a patrol officer. When he confronted the defendant with this information, the defendant apologized and said he had taken the test to become a Baystate security officer (the next position above patrol officer) and in his mind he thought he had the job.

When asked to perform a series of field sobriety tests the defendant said that one of his college professors told him that field sobriety tests were illegal, so he was unwilling to perform them at that time. The defendant asked if he was going to be arrested. He was told that he would not be arrested, but that the officers needed to have him take a series of tests to determine if he was capable of driving his car safely. The defendant agreed. After administering one field sobriety test and based on their other observations of the defendant, the officers determined that he was too impaired to drive safely. Arrangements were made to have the defendant's car towed away. The defendant was allowed to telephone a friend (a security officer at Baystate) who arrived and drove him to Westfield.

At 12:58 a.m. on December 7, 2004, while he was waiting for his friend to arrive and drive him to Westfield, the defendant left a voice message for a female friend. He apologized for missing her call and said he was “wondering what you're up to tonight.” He spoke in his typical “calm, easygoing, fun-loving ... nonchalant” tone.

As the defendant's friend was driving him home from the restaurant the defendant said, “It's a good thing the cop didn't search me.... I have my piece on me.” The defendant produced a handgun and said there were six rounds in it. He also said that his license to carry a gun had been revoked.

As a result of a telephone call the defendant made to his parents at about 4:45 a.m. on December 7, they drove from Boston to Westfield and initiated civil commitment proceedings against him. At about 9 a.m. the same day two Westfield police officers went to the defendant's apartment and asked him to accompany them to Noble Hospital in Westfield for a psychiatric evaluation that was ordered by a District Court judge pursuant to G.L. c. 123, § 12, on the application of his parents. The defendant refused to comply and a struggle ensued. The defendant was subdued through the use of pepper spray.

In the meantime, Amherst and State police investigators were given the name of the defendant by the victim's girl friend. They went to the defendant's apartment in Westfield and were made aware of the defendant's civil commitment. The defendant's father consented to a search of his own car, which contained some items he and his wife had removed from the defendant's apartment for their son's safety, including a .38 caliber handgun. The defendant's father also consented to a search of the defendant's apartment. Among the items recovered from the two locations were a .223 caliber magazine having a capacity of ninety rounds, and a loaded .40 caliber Sig Sauer pistol. The next day, December 8, investigators returned to the defendant's apartment with a search warrant. They recovered several items, including a “fanny” pack containing hypodermic syringes and bottles of two different anabolic steroids. From a Dumpster at the apartment complex, investigators also recovered a gun case capable of holding a rifle.

During a search of the wooded swampy area near the Aqua Vitae restaurant on December 9, police recovered a .223 caliber Colt model CAR–A3 semiautomatic rifle, one live round of ammunition found near the rifle, and a forty-round magazine. Two latent fingerprints found on the rifle matched those of the defendant. Deoxyribonucleic acid (DNA) testing of blood found on the defendant's jeans matched the DNA profile of the victim.

Trial counsel told the jury in his opening statement that the defense was lack of criminal responsibility. The Commonwealth's theory was that the defendant did not suffer from a mental illness, and any delusions he ever experienced were the result of substance abuse. The Commonwealth also focused upon the absence of any evidence of delusional thinking on the part of the defendant in the hours before and approximately one hour after the killing.

b. History relevant to criminal responsibility. A great many of the issues in this appeal involve the subject of criminal responsibility. Rather than recite facts that the jury could have found in returning a verdict of guilty, it is more useful to offer a summary of the evidence relevant to criminal responsibility.

The defendant was a regular user of alcohol and drugs in high school, as were many of his friends. After high school the defendant attended Hawaii Pacific University. His substance abuse continued, and he began experiencing delusions and hallucinations. In December, 2000, during the holiday break after his first semester, the defendant told his father he wanted to move out of the dormitory and get his own apartment. He reported that a roommate's father was involved with the Chicago mafia, and it made him feel uncomfortable.

The defendant's sister visited him at college in the fall of 2001. He told her not to answer his telephone because it was “bugged.” He reported that Federal Bureau of Investigation (FBI) agents had rappelled off the roof of his apartment complex and observed him from the window of his twenty-seventh floor apartment. This caused him to keep his curtains closed....