Commonwealth v. Niemic, SJC-12436
| Citation | 483 Mass. 571,134 N.E.3d 1107 |
| Decision Date | 19 November 2019 |
| Docket Number | SJC-12436 |
| Parties | COMMONWEALTH v. Jonathan NIEMIC. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Theodore F. Riordan, (Deborah Bates Riordan, Quincy, also present) for Jonathan E. Niemic.
Tara L. Johnston, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Lenk, Lowy, Budd, & Cypher, JJ.
In 2012, the defendant was convicted of murder in the first degree on a theory of extreme atrocity or cruelty in the stabbing death of Michael Correia on October 20, 2010. Following the defendant's appeal from that conviction, we remanded the matter to the Superior Court, where the Commonwealth was given the option either of vacating the conviction and retrying the defendant on the murder indictment, or accepting a reduction of the verdict to manslaughter. See Commonwealth v. Niemic, 472 Mass. 665, 667, 679, 37 N.E.3d 577 (2015) ( Niemic I ). The Commonwealth elected to pursue a new trial. At that trial, with a different judge presiding, another attorney for the defendant, and the same prosecutor, the jury convicted the defendant of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.
In this appeal, the defendant argues that a new trial is required because of four asserted errors at his second trial: a violation of the protection against double jeopardy in pursuing the theory of deliberate premeditation, where the jury at the first trial had not checked the "guilty" box on the verdict slip for that theory; erroneously admitted testimony of a rebuttal witness, which later was treated as substantive evidence by the Commonwealth; improperly introduced testimony by a substitute medical examiner as to facts in the autopsy report; and a number of improprieties in the prosecutor's closing argument, including an issue repeated from the defendant's first trial. The defendant also asks us to exercise our authority under G. L. c. 278, § 33E, to reduce the degree of guilt or to order a new trial.
We conclude that errors in the closing argument alone, both that are reprised from the first trial and those newly introduced, would require a new trial. To the extent that this may be a close question, that determination is buttressed by other issues that emerged on our review pursuant to G. L. c. 278, § 33E. Accordingly, the defendant's conviction of murder in the first degree shall be vacated and set aside. On remand, the Commonwealth shall once again be given the option either of accepting a reduction in the verdict to manslaughter, or of retrying the defendant.
Should the Commonwealth again choose to pursue the latter path, we recognize the costs that a third trial would occasion, on the parties, the witnesses, the victim's family, and the court. We are nonetheless constrained to conclude that a new trial is necessary unless the Commonwealth decides to accept a reduced verdict. See Commonwealth v. Kater, 388 Mass. 519, 534, 447 N.E.2d 1190 (1983), S.C., 394 Mass. 531, 476 N.E.2d 593 (1985), 409 Mass. 433, 567 N.E.2d 885 (1991), 412 Mass. 800, 592 N.E.2d 1328 (1992), and 432 Mass. 404, 734 N.E.2d 1164 (2000).
1. Background. We recite the facts as the jury could have found them, in the light most favorable to the Commonwealth, reserving certain details for later discussion. The victim was stabbed five times; any one of the wounds
could have been fatal. The defendant testified at trial that he had stabbed the victim; the primary issue before the jury was whether he had done so in self-defense. The theory of defense was that the older, taller, and heavier victim initiated a fist fight, and then pulled out a knife; the defendant managed to wrench the knife from the victim and swung wildly to fend off the victim.
a. Facts. In the summer of 2010, the defendant was twenty-two years old and living in a halfway house in New Bedford for individuals who were recovering from alcohol and drug abuse. He was dating Lisa Weaver, who lived at a different sober house in New Bedford. During his time at the halfway house, the defendant befriended his roommates, James Nason and Nathan Goodwin. The defendant also introduced Nason to his friend Kari Wright, and the two began dating.
In August of 2010, the defendant left town for approximately two months. When he returned, he moved in with his grandmother in New Bedford. While he was away, the defendant wrote Weaver two love letters describing how "perfect" she was, and how he missed her and imagined them being together. At the same time, however, Weaver and the victim1 appeared to have begun a romantic relationship; they were seen in public on a number of occasions flirting, holding hands, and kissing.
The defendant returned to New Bedford in October 2010. A few days before the stabbing, Nason told the defendant about the relationship between Weaver and the victim. Nason also said that the victim had referred to the defendant as a "punk," and had bragged that the victim "could take any girl away from [the defendant]." The defendant told Nason that when they next met, he would punch the victim in the head.2 A friend of Weaver, who was her roommate at the sober house, testified that, at some point a few days prior to the stabbing, the defendant had appeared at an alcoholics anonymous (AA) meeting looking for the victim.
On October 19, 2010, Weaver, Wright, and Nason picked up the defendant in a sport utility vehicle (SUV) belonging to Wright's mother. Weaver and the defendant embraced when they saw each other, and sat together in the rear seat. At some point, Wright heard the defendant angrily asking, with reference to an unknown topic, "Why didn't you tell me that?" The group spent the day at Wright's parents' house, where the relationship between Weaver and the defendant seemed affectionate, as usual. The group left so that Weaver could get back to the sober house before her 11 P . M . curfew. They planned to meet the following day to paint a property in Abington that belonged to Weaver's parents.
On October 20, 2010, at approximately 3 P . M ., the defendant, Weaver, Nason, and Wright arrived at the building in Abington, and painted until 6:30 P . M ., when it got dark. They left intending to return to New Bedford. En route, Weaver realized that she did not have her house key. She then remembered that some of her housemates would be attending an AA meeting at a soup kitchen at New Bedford, which regularly took place from 7 P . M . until 8:30 P . M . on Wednesdays, and decided that she could later enter the sober house with them. The four thus headed to the soup kitchen. On the way, the defendant asked Nason to stop at the side of the road because he had to urinate, but Wright would not allow this, as neither she nor Nason had a valid driver's license, and she did not want Nason to be caught at the side of the road if any police officers passed by.
Between seventy and one hundred twenty people attended the meeting that evening. The defendant, Weaver, Nason, and Wright reached the soup kitchen shortly before the usual break between 7:30 and 7:45 P . M ., when many people would go outside to smoke. Nason parked approximately 200 yards from the front door. Wright remained in the vehicle, while the others headed to the soup kitchen. They encountered their former roommate Goodwin standing outside. Nason and the defendant chatted with Goodwin for approximately five minutes, and then went inside to use the restroom. Weaver also went into the building to use the restroom, and then joined the crowd outside.
When the defendant and Nason returned to the vehicle, the break had begun and numerous meeting participants were heading outside. Nason pointed out to the defendant that the victim was at the meeting, and then returned to the SUV.
At that point, approximately eighty people were outside, in a small, crowded area. The victim and Goodwin were standing approximately fifteen feet from the entrance to the soup kitchen, looking at something on a cellular telephone. The defendant went over to talk to Weaver, who was standing on the corner near a crosswalk approximately thirty feet away from the victim. Nason moved the SUV closer to the crosswalk, and stayed inside with the vehicle idling. The defendant gestured to the victim, indicating that he wanted to talk. The victim apparently held up a finger, in a "just a minute" gesture. The defendant gave Weaver "a quick goodbye kiss." She seemed "concerned" and appeared to try to "pull[ ] him back" from talking to the victim, and then the defendant and Weaver kissed again.3 At some point, the defendant pulled the hood of his sweatshirt up. He crossed the street and opened the rear passenger door of the SUV as though he were about to get in, but then left the door slightly ajar and walked over to the victim.4
The defendant said, ; the victim asked what the defendant had heard. The defendant began punching the victim, aiming at his head, while the victim attempted to ward off the blows.5 The defendant tried to hold the victim in a headlock, but the victim broke free. At some point, the victim lifted his arms up with his palms facing outward and said something to the effect of, 6 The defendant lunged at the victim four to five times. The victim ran into the soup kitchen. The defendant chased him into the building. About twenty seconds later, the defendant ran out of the building and into the SUV; the vehicle then was driven away.7
Bystanders carried the victim, who was saying that he had been stabbed and that someone should telephone 911, upstairs to the meeting hall and tried to render first aid. His father was present. Emergency medical technicians (EMTs) arrived within a few minutes. The victim lost consciousness shortly thereafter. He was taken to a hospital by ambulance, where physicians attempted emergency surgery, but their efforts were unsuccessful and...
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