Commonwealth v. McGee

• Citation: 469 Mass. 1,11 N.E.3d 1043
• Decision Date: 01 July 2014
• Docket Number: SJC–11209.
• Parties: COMMONWEALTH v. JEFFREY McGEE.
• Court: United States State Supreme Judicial Court of Massachusetts

469 Mass. 1

11 N.E.3d 1043

COMMONWEALTH

v.JEFFREY McGEE.

SJC–11209.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued March 7, 2014.

Decided July 1, 2014.

Eric S. Brandt, Committee for Public Counsel Services, for the defendant.

Hallie White Speight, Assistant District Attorney (Katherine B. Folger, Assistant District Attorney, with her) for the Commonwealth.

Present: IRELAND, C.J., CORDY, BOTSFORD, GANTS, & LENK, JJ.

LENK, J.

The defendant appeals from his conviction of murder in the first degree on a theory of deliberate premeditation.¹ On November 20, 2007, the defendant choked and stabbed his wife to death in their apartment; the killing was witnessed by the couple's three and one-half year old son. The defendant did not dispute that he had killed his wife, asserting only that he had done so in the heat of passion and had not premeditated the act. On appeal, the defendant raises two issues. First, he contends that the trial judge erred in allowing the defendant's son to demonstrate, on a couch in the court room, the position in which his mother was lying as the defendant was choking her. Second, he objects to a ruling prohibiting him from using a police report to refresh the recollection of a witness regarding a sexual overture made by the victim.

For the reasons set forth below, we discern no error and affirm the defendant's conviction of murder in the first degree. After a review of the entire record pursuant to G.L. c. 278, § 33E, we decline to exercise our power to reduce the defendant's conviction to a lesser degree of guilt or to order a new trial.

1. Background. a. Facts. We recite the facts as the jury could have found them, reserving some details for later discussion.

i. Defendant's relationship with the victim. The defendant and the victim, Christine McGee,² met while the defendant was a singer in a rock and roll band dedicated to performing music from the 1980s, which Christine enjoyed.³ At that time, the defendant looked like what Margaret Barone, a longtime friend of the defendant and a close friend of Christine, described as an “eighties rocker”; he had long hair and wore ripped jeans. The defendant and Christine began dating, and eventually moved together into an apartment in Lowell.In early 2003, the defendant and Christine separated for several weeks, during which time Christine dated another man. Upon their reconciliation, Christine discovered that she was pregnant, but did not know which man was the father. The defendant told Christine that he wanted to raise the child as his own even if he was not the biological father.

While Christine was pregnant, the defendant continued to play in his band and stay out late; this schedule upset Christine. However, after the couple's son, Gavin, was born on December 1, 2003, the defendant stopped playing in his band, cut his previously long hair, and wore professional clothing instead of ripped jeans. Hoping to better support his family, the defendant began working at a store that sold heating, ventilation, and air conditioning equipment. During this time, Christine worked as a bartender several nights a week while the defendant took care of Gavin. The resulting improvement in the couple's finances and in their relationship led them to marry in May, 2005.

Beginning in late 2006, the defendant and Christine experienced tension in their relationship. The defendant's responsibilities at work changed, requiring longer hours, and Christine was unhappy that he was too tired to socialize when he arrived home in the evenings. On two occasions, the defendant was violent towards Christine. In March, 2007, he put a pillow over Christine's face while they were lying in bed with Gavin because a man sent her a text message.⁴ That summer, the couple moved to Tyngsboro hoping to facilitate a fresh start; in July, however, the defendant punched Christine and gave her a black eye.

The defendant and Christine separated again in early October, 2007, and the defendant moved out of their shared apartment. Christine began to date a local rock musician, Gary Hoey, and she spent one night at the house of another rock musician, Salvatore Erna. Later that month, Christine went to California for four days in an effort to appear on a reality television show called “Rock of Love with Bret Michaels.” ⁵ The defendant was upset that Christine was seeing other men and embarrassed that she planned to appear on the television show. He told Barone that he would not “make it easy for [Christine] to go out anymore,” and told a coworker he planned to contact the television show to inform the producers that Christine was married. The defendant also sent Christine a text message that read, “I don't care about my son. I just want to kill myself and I'm going to take you with me.”

Early on November 10, 2007, the defendant banged on the door of Christine's Tyngsboro apartment and pushed his way inside once Christine came to the door. Christine told the defendant to leave, but he wanted to lie in bed and talk. Christine's brother, who was living with his girl friend in the apartment, telephoned police; when they arrived, they ordered the defendant to leave. Later that afternoon, the defendant returned to Christine's apartment, accompanied by his father and a police officer, to retrieve his furniture and belongings. While the defendant was retrieving his belongings, Barone arrived, and she and Christine left the apartment and went to a restaurant with Gavin. As they were sitting in the restaurant, the defendant sent Christine numerous text messages, saying first that he did not want to live without her, next that she was a “fucking whore” and a “slut,” and finally that he loved her and wanted to reconcile. Despite this incident, over the course of the next week the defendant told several coworkers that he was excited to get back together with Christine and that he was optimistic about their relationship. On November 17, 2007, Christine and Gavin spent the night at the defendant's apartment, and Christine told Gavin that the apartment “may be your home.”

ii. Day of the victim's death. On the afternoon of November 19, 2007, the defendant went to see his friend Mark Vigeant at Vigeant's workplace. He told Vigeant that, even though Christine had been seeing Hoey, he was willing to forgive her and wanted to get back together. That evening, Christine, Vigeant, the defendant, and a friend of Vigeant's met at a local bar. Christine played the jukebox while the defendant stood behind her and rubbed her back. The group returned to Vigeant's workplace; from there, Christine and the defendant left separately to return to the defendant's apartment. Although Vigeant, Christine, and the defendant had planned to meet at the defendant's apartment, Vigeant changed his mind. He telephoned the defendant's cellular telephone at 8:01 P. M. to let them know; the defendant answered, and Vigeant heard Gavin and Christine in the background. Between 7:30 P. M. and 8 P. M. that evening, Christine telephoned both Hoey and Erna.

Later that evening, at the defendant's apartment, Gavin, then three and one-half years old,⁶ saw the defendant and Christine fighting and looking for their cellular telephones. Afterward, the defendant, Christine, and Gavin all went to sleep in the same room, with his parents in the bed and Gavin on a mattress on the floor. Sometime thereafter, when it was dark outside, Gavin woke up and heard Christine crying. He walked into the living room and saw Christine on the couch with her head “like stuck between the cushions” and the defendant “[k]illing her” by choking her with his hands. The defendant then got two knives from the kitchen, one of which was “sharp” and “round,” and stuck that knife into Christine's body. Gavin testified that he and the defendant then went to bed, and that Christine “was dead when I walked out of the room.”

iii. Motor vehicle accident and the homicide investigation. The following morning, the defendant put Gavin in his automobile and drove to Route 110 in Methuen. At approximately 10:30 A. M., the defendant's vehicle collided with a large dump truck that had been approaching from the opposite direction. When emergency responders arrived at the scene, they found Gavin in the front seat, secured by only the lap portion of his seat belt. Gavin wore a T-shirt and sweatpants, with no coat, shoes, or socks, despite the snowy weather. The defendant was conscious and alert but unresponsive to questions. Medical personnel observed horizontal cuts on the inside of the defendant's left wrist and several puncture wounds to the left side of his chest. The defendant said that his injuries were self-inflicted, that he wanted to die, and that he had been “trying” to cause the accident.

While being treated by medical personnel, Gavin said repeatedly, “You better take me to my mommy.” He also said that “daddy killed mommy” and that “there was blood, blood everywhere.” When asked where Gavin's mother was, the defendant said that she was in Tyngsboro. Gavin confirmed that his mother was at his father's apartment and described its location.

Chelmsford police officers were dispatched to the defendant's apartment, where they discovered the victim's body on the floor leaning against the sofa, covered by a black comforter. There was blood on the couch and on a “dagger-style” knife lying nearby. Officers also recovered a cellular telephone and a razor blade with reddish-brown stains. The autopsy revealed six stab wounds to the victim's neck, jaw, and upper abdomen, as well as signs of strangulation. The stab wounds, inflicted after the strangulation, caused the victim's death.

2. Trial proceedings. On January 3, 2008, a Middlesex County grand jury indicted the defendant for the murder of his wife. Subsequently, an Essex County grand jury indicted the defendant for four different offenses arising out of the motor vehicle accident in Methuen on the morning after the victim's...