Commonwealth v. Miller

• Decision Date: 10 June 2010
• Docket Number: SJC-10341.
• Citation: 457 Mass. 69,927 N.E.2d 999
• Parties: COMMONWEALTHv.Callum A. MILLER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

457 Mass. 69

927 N.E.2d 999

COMMONWEALTHv.Callum A. MILLER.

SJC-10341.

Supreme Judicial Court of Massachusetts Essex.

Argued Feb. 12, 2010.

Decided June 10, 2010.

COPYRIGHT MATERIAL OMITTED

Alan D. Campbell, Brookline, for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., SPINA, COWIN, BOTSFORD, & GANTS, JJ.

BOTSFORD, J.

A jury convicted the defendant, Callum A. Miller, of murder in the first degree by reason of extreme atrocity or cruelty.¹ On appeal, the defendant argues that (1) the trial judge erred in giving an instruction that it was permissible for the jury to infer malice from the intentional use of a dangerous weapon; (2) the prosecutor's closing argument contained several improprieties that violated the defendant's right to a fair trial; and (3) the judge's failure to instruct on the lesser included offense of assault and battery created a substantial likelihood of a miscarriage of justice. For the reasons we discuss, we reject the defendant's arguments and, after reviewing the entire case, decline to exercise our authority under G.L. c. 278, § 33E, to reduce the degree of guilt or order a new trial.

Background. The evidence presented at trial included the following. On September 28, 2001, Beverly police officers responded to a telephone call from 44 Cross Street in Beverly, where they found the victim, Edward White, dead. It is undisputed that the defendant killed the victim.

The victim, who was around sixty years of age at the time of his death, owned the house at 44 Cross Street; the defendant, then twenty-seven, lived with him as a caretaker and handyman. The two had been friends for several years and enjoyed a close relationship. From 1998 to 2000, the defendant spent approximately half his time living with the victim, and the other half living with his then girl friend. In the late summer of 2001 the defendant's relationship with his girl friend ended, and he returned to live full time at the victim's house.

During the evening of September 24, 2001, the victim and the defendant were in the victim's bedroom discussing the defendant's recent breakup with his girl friend. By that point, the defendant had consumed significant amounts of alcohol and was intoxicated. After the conversation ended, the victim, who was a homosexual, made a sexual overture toward the defendant. “[F]reaked out,” the defendant responded by putting a pillow over the victim's head. A brief struggle ensued, and the victim got up from the bed and ran into the kitchen. The defendant tried to prevent the victim from screaming for help by trying to cover the victim's mouth, but ended up tripping the victim and both men fell to the floor. The defendant began striking the victim with his hand, but then he grabbed a hammer from his nearby tool belt and began repeatedly striking the victim's skull with the hammer. The victim's injuries were extensive and included twenty-five lacerations to the scalp. These lacerations were consistent with blows from the hammer, and blunt head trauma was determined to be the cause of death.

Just before midnight on September 24, the defendant telephoned his cousin in Ohio, telling his cousin that “he had to get out of Massachusetts.” The defendant's speech was “very fast paced, panicky.” A little later, the defendant telephoned his father, who was working the night shift at a plant in Middleton. Shortly thereafter, the defendant, still intoxicated, drove to his father's workplace in the victim's automobile. The defendant told his father, “I think I killed [the victim].” At some point during the conversation, however, the defendant recanted, claiming that he had been joking. The defendant then left his father and drove back to 44 Cross Street. He cleaned the kitchen and dragged the victim's body back into the victim's bedroom and onto the bed, wrapped in blankets.

The victim previously had agreed to sell his house at 44 Cross Street to a Paul Sandberg, and arrangements had been made to execute the purchase and sale agreement on the afternoon of September 28. As the time for the signing drew near, the realtor informed Sandberg that the victim was “nowhere to be found.” Concerned because of the victim's poor health, Sandberg drove to the house. On entering the victim's bedroom, Sandberg discovered the body and telephoned the police.

After a preliminary investigation, State and Beverly police officers obtained an arrest warrant for the defendant. They learned that the defendant had traveled to New York City, and accordingly they contacted the New York City police department. New York City police officers arrested the defendant at a hotel in that city early in the morning of September 29, 2001. State Trooper Robert Irwin and Beverly Detective John Bianchi, on learning that the defendant was in police custody, immediately drove to New York City, arriving there at 9:10 a.m. After being given Miranda warnings, the defendant agreed to speak with the Massachusetts police officers, and did so. In his statement which he signed, the defendant admitted to killing the victim and provided a narrative that detailed both the killing and events leading up to and following it.

At trial, the defendant presented a defense of intoxication and mental impairment. Dr. David Rosmarin, a board certified psychiatrist and expert witness for the defense, testified to his opinion that the defendant was highly intoxicated at the time of the incident, and suffering from symptoms of posttraumatic stress disorder (PTSD) as a result of having been sexually and physically abused as a child. The combined effect of intoxication and PTSD symptoms, the latter triggered on the night of September 24 by the victim's sexual advance toward the defendant, rendered the defendant incapable of deliberate premeditation, of forming the intent to kill or to cause grievous bodily injury, or of possessing the knowledge that his actions were of a character to cause a strong likelihood that death would result. Dr. Rosmarin also testified to his opinion that the nature of the blows inflicted by the defendant did not indicate extreme atrocity or cruelty but rather were evidence that the defendant had experienced a loss of control. In rebuttal, the Commonwealth called Dr. Malcolm Rogers, also a board certified psychiatrist. Dr. Rogers opined that at the time of the victim's death the defendant retained the capacity to deliberately premeditate, to form the intent to kill or cause grievous bodily injury, and the capacity to do so and to have knowledge of the acts that caused the victim's death.

Discussion. a Jury instruction on malice. When the judge reached the substantive crimes at issue in the course of his final charge, he instructed the jury on the elements of murder in the first degree based on the theory of deliberate premeditation, murder in the first degree on the theory of extreme atrocity or cruelty, and murder in the second degree. In doing so, the judge followed the Model Jury Instructions on Homicide (1999), and in accordance with those model instructions, he separately defined the element of malice as it applied to each crime. Immediately after concluding his explanation of murder in the second degree, the judge stated the following:

“As a general rule, you are permitted to infer that a person who intentionally uses a dangerous weapon on

another person is acting with malice. A dangerous weapon is an item which is capable of causing serious bodily injury or death.

“Whenever the defendant's knowledge or intent must be proved, the defendant's culpability rests upon proof of such knowledge or intent. The Commonwealth must prove the requisite knowledge or intent beyond a reasonable doubt in order to prove that the defendant committed the crime.^[2] ...

“Whenever the Commonwealth must prove the defendant's intention to do something, you should consider any credible evidence of mental impairment and/or the effect on the defendant of his consumption of alcohol in determining whether the Commonwealth has met its burden of proof. Likewise, whenever the Commonwealth must prove the defendant's knowledge of any facts or circumstances, you should consider any credible evidence of mental impairment and/or the effect on the defendant of his consumption of alcohol in determining whether the Commonwealth has met its burden of proof beyond a reasonable doubt.

“More particularly, you may consider any credible evidence of the defendant's mental impairment and/or consumption of alcohol in determining:

“Whether the defendant deliberately premeditated the killing of the deceased, that is, whether the defendant thought before he acted and whether the defendant reached the decision to kill after reflection at least for a short period of time.

“Whether the defendant intended to kill or to cause grievous bodily harm to the deceased or, relative to the third prong of malice, the nature and extent of the defendant's knowledge of the circumstances at the time he acted.

“Whether the defendant acted in a cruel or atrocious manner in causing the death of the deceased.

“I reiterate, whenever the Commonwealth must prove that the defendant intended to do something, or had

knowledge of certain facts or circumstances, in order to prove the crime, you may consider any credible evidence of mental impairment and/or intoxication in determining whether the Commonwealth has met its burden of proving the defendant's intent or knowledge beyond a reasonable doubt.”

The judge's instruction concerning the permissible inference of malice that may be drawn from the intentional use of a dangerous weapon (dangerous weapon inference instruction), as well as his instructions on evidence of mental impairment and alcohol consumption, are taken directly from the model homicide instructions. See Model Jury Instructions on Homicide, supra at 61-62. The defendant does not challenge as a general matter the principle expressed in the dangerous...