Commonwealth v. Marshall

• Decision Date: 09 March 2001
• Docket Number: SJC-08352
• Parties: (Mass. 2001) COMMONWEALTH vs. MARK AARON MARSHALL
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

749 N.E.2d 147 (Mass. 2001)

COMMONWEALTH vs. MARK AARON MARSHALL.

SJC-08352

Massachusetts Supreme Court

March 9, 2001.

June 20, 2001.

County: Essex.

Present: Marshall, C.J., Greaney, Ireland, Spina, & Cowin, JJ.

Summary: Practice, Criminal, Required finding, Capital case. Homicide. Evidence, Hearsay, Spontaneous utterance, Prior misconduct, Relevancy and materiality.

Indictment found and returned in the Superior Court Department on June 24, 1998.

The case was tried before Barbara J. Rouse, J.

Willie J. Davis for the defendant.

Daniel I. Smulow, Assistant District Attorney, for the Commonwealth.

IRELAND, J.

A jury convicted the defendant of murder in the first degree based on a theory of deliberate premeditation. The defendant has appealed from the conviction, claiming that the judge erred in denying his motions for a required finding of not guilty, and made numerous reversible errors in her evidentiary rulings. He also requests that we exercise our plenary power under G. L. c. 278, § 33E, to reduce the degree of guilt. For the reasons set forth below, we affirm the conviction and decline to exercise our power under G. L. c. 278, § 33E.

1. Background. We summarize the facts in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with the issues raised. Commonwealth v. Fisher, 433 Mass. 340, 341 (2001). For several years, the victim and the defendant had been involved in, according to the defendant, an "up and down" romantic relationship. Although they never married, they lived together. Within the first one and one-half years of the relationship, the victim obtained a protective order, pursuant to G. L. c. 209A, against the defendant because she feared that he would harm her physically. She subsequently let this order expire, and one month later, the couple's son was born.

During the following weeks, the relationship deteriorated. The defendant and the victim argued frequently. She moved out of their home. Approximately one month prior to the murder, the defendant approached one of the victim's friends and informed her that the victim had "better be willing to die for [the baby] because if anything happens to the baby, that's what's going to happen to her." Shortly thereafter, the defendant held a knife to the victim's neck and warned her that "one day something was going to happen to her if things continued the [way they were]." Nine days before she died, the victim, again fearing that the defendant would harm her, obtained a second protective order against him.

On the day of the murder, despite the no-contact order, the defendant paged the victim twice, both times entering the code "911," followed by their former telephone number, effectively summoning her to their former residence. In response, the victim left her apartment with her older son,¹ picked up the baby from the babysitter, and went to the defendant's house with the children. Also present at the scene were the defendant's mother, sister, niece, and his two other children. The victim and the defendant went upstairs to the bedroom. She was later found by police officers, lying on the floor, dead from a stab wound in her back. She had been stabbed with a force analogous to, according to the medical examiner's testimony, "chopp[ing] through a piece of bone."

The defendant testified to the following. In the bedroom, he asked the victim why she had obtained the protective order. She did not respond and they began to argue. She then approached the defendant with a fireplace poker "down by her side" and struck his head with her fist. The defendant did not sustain any injuries from the blow. He could not account for the presence of the poker in the bedroom of a house that no longer had a fireplace. In response to the victim's actions, he "instinctively" reached to the floor for a kitchen knife. Again, the defendant could not explain why a kitchen knife was on the bedroom floor. After he picked up the knife, they "had a struggle and she fell and [the defendant] fell on top of her" with the knife in his hand, although he could not remember what caused him to fall. He attempted to break his fall with the hand holding the knife, and at this point, he went into what he referred to as "shock."² He could not testify to any of the events that followed.³ He did, however, acknowledge that the victim was stabbed with the knife he had picked up from the floor. His sister supplied a number of additional details, including the fact that after the murder, the defendant would not allow her or her mother to telephone the police for help, that he covered the victim's face with a cloth, and that he concealed the knife in another bedroom. A police officer who investigated the crime scene testified that the victim's body was found covered with trash bags, clothing and other debris. According to the medical examiner, the victim died from the stab wound to her back within five to ten minutes of the attack.

2. Motions for a required finding of not guilty. The defendant moved three times for a required finding of not guilty on the charge of murder in the first degree -- after the Commonwealth rested, after the close of the evidence, and after the verdict. The judge denied each motion. The defendant now argues that the Commonwealth's evidence was insufficient to establish that the murder was committed with both deliberate premeditation and malice.

A defendant is entitled to a required finding of not guilty only when "the evidence is insufficient as a matter of law to sustain a conviction on the charge." Mass. R. Crim. P. 25 (a), 378 Mass. 896 (1979). See Commonwealth v. Andrews, 427 Mass. 434, 440 (1998). On appeal, we must determine whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). "The question of guilt must not be left to conjecture or surmise." Commonwealth v. Lodge, 431 Mass. 461, 465 (2000), quoting Commonwealth v. Anderson, 396 Mass. 306, 312 (1985). However, in criminal prosecutions, circumstantial evidence is competent to establish guilt beyond a reasonable doubt. Commonwealth v. Dostie, 425 Mass. 372, 375 (1997). "An inference drawn from circumstantial evidence 'need only be reasonable and possible; it need not be necessary or inescapable.'" Commonwealth v. Lodge, supra, quoting Commonwealth v. Beckett, 373 Mass. 329, 341 (1977). Gauged by these standards, the defendant's motions were properly denied.

a. Deliberate premeditation. The evidence was more than sufficient to support a finding that the murder was committed by the defendant with deliberate premeditation. The jury heard evidence that "warranted a finding that the defendant's resolve to kill the victim was the product of cool reflection . . . even if formed in a matter of seconds" (citations omitted). Commonwealth v. Andrews, 427 Mass. 434, 440-441 (1998). See Commonwealth v. Chipman, 418 Mass. 262, 269 (1994). The Commonwealth's evidence, if believed, showed that the defendant and the victim shared a contentious and deteriorated relationship, the termination of which culminated in the defendant's executing his plan to kill her. Before she was murdered, the victim feared the defendant would harm her, as evidenced by the protective orders. The defendant had threatened the victim's life both directly and through her friends. On the day of the murder, the defendant wilfully violated the protective order when he lured the victim to the home that they once had shared. When she arrived, he isolated himself with the victim, interrogated her about the order, and then, as mentioned previously, stabbed her to death with great force. He stabbed the victim when she had her back to him, and the jury heard no evidence that she ever screamed. See Commonwealth v. Stirling, 351 Mass. 68, 75 (1966), and cases cited (proper to consider lack of struggle with respect to deliberately premeditated malice aforethought). These facts were sufficient to allow the jury to conclude, beyond a reasonable doubt, that the defendant, having decided to murder the victim, planned "how to effectuate that desire and . . . evaluat[ed] . . . the 'pros and cons' of proceeding," Commonwealth v. Gibson, 424 Mass. 242, 247, cert. denied, 521 U.S. 1123 (1997), and thus, killed her with deliberate premeditation. See Commonwealth v. Degro, 432 Mass. 319, 325 (2000); Commonwealth v. Lodge, supra at 466.

b. Malice aforethought. Equally sufficient was the evidence that the defendant acted with malice aforethought, which in the context of deliberately premeditated murder, means an intent to cause death. Model Jury Instructions on Homicide 8 (1999). Commonwealth v. Jiles, 428 Mass. 66, 71-72 (1998). Commonwealth v. Waite, 422 Mass. 792, 804 (1996). Where, after isolating himself with the victim, the defendant used tremendous force to stab the victim with a kitchen knife with an eight-inch blade, which he found inexplicably lying on the bedroom floor, we conclude that a rational jury could, beyond a reasonable doubt, find that the defendant acted with the specific intent to kill the victim, and thus, malice aforethought. See Commonwealth v. Begin, 394 Mass. 192, 197 (1985) (malice may be inferred from intentional use of deadly weapon); Commonwealth v. Gilbert, 413 Mass. 863, 869 (1996). The motions were properly denied.⁴

3. Spontaneous utterance. The defendant claims that the judge erred in admitting certain portions of Cynthia Ravizee's testimony. He filed a motion in limine to exclude the testimony as hearsay. After conducting a voir dire of Ravizee, the judge ruled that the testimony was admissible as a spontaneous utterance. Ravizee testified, over the defendant's objection, that two weeks before the murder, just...