Commonwealth v. Stroyny

• Decision Date: 05 October 2001
• Parties: COMMONWEALTH v. DAVID STROYNY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

435 Mass. 635

760 NE 2d 1201

COMMONWEALTH v. DAVID STROYNY.

Supreme Judicial Court of Massachusetts, Bristol.

October 5, 2001.

January 18, 2002.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, & CORDY, JJ.

Scott P. Curtis for the defendant.

Catherine B. Sullivan Ledwidge, Assistant District Attorney, for the Commonwealth.

MARSHALL, C.J.

In January, 1995, the defendant was convicted of murder in the first degree on the theory of extreme atrocity or cruelty.¹ Represented by new counsel, the defendant filed a motion for a new trial in April, 2000, which was denied by the trial judge after a hearing. The defendant's appeals from the jury verdict and the denial of his motion for a new trial have been consolidated.

The defendant argues that the judge failed to conduct an adequate voir dire of the jury venire, and failed to conduct, sua sponte, a voir dire on the voluntariness of several of the defendant's out-of-court statements. He challenges on various grounds the admission in evidence of the testimony of several witnesses, described below. He also challenges various instructions to the jury. Finally, he makes a claim of ineffective assistance of trial counsel, arising primarily from these same claims of error. We affirm the conviction and the judgment denying the defendant's motion for a new trial. We conclude that there is no basis for granting relief under G. L. c. 278, § 33E.

1. Facts. The jury could have found the following facts. Ten months prior to the murder, the victim — a single mother of three children — and the defendant began dating. Soon thereafter they began to live together. Their relationship quickly deteriorated. On numerous occasions the defendant threatened and abused the victim, both physically and verbally. He mentioned to others that he might hurt or kill her. The victim attempted to terminate the relationship, and during the ten months that she knew him, she obtained two protective orders against the defendant.

The abuse culminated in the victim's death on May 12, 1992. On that morning, the defendant entered the victim's apartment by battering down the front door. A fight ensued, during which the victim was brutally assaulted. The defendant testified that he punched the victim in the face "with everything [he] had," knocking her down, but that he could not recall stabbing her. He testified that, when he saw the victim lying stabbed on the ground, he cut his wrists, walked down the street to a public telephone, and called his father, who took him to a hospital. The defendant was apprehended at the hospital by the Taunton police.

The medical examiner testified to the ferocity of the attack on the victim. She had suffered three stab wounds to her back, one to her right elbow, a bruise to the right side of the head, a laceration and fracture of her nose, two fractured front teeth, a scrape on her left forearm, and a bruised right buttock. One of the fractured nose bones tore through the skin, causing the laceration on her nose. Each of the stab wounds to the victim's back penetrated at least five inches, entering her chest cavity and injuring her right lung and heart. One stab wound cut through an entire rib; another almost severed another rib. The examiner testified as to the considerable force necessary to cause such injuries. The medical examiner opined that the victim died from the three stab wounds to her back, each of which was fatal.

At trial, the primary contested issue was the defendant's intent at the time of the killing. The defendant admitted he had killed the victim, but claimed he could not remember delivering the killing blow or blows. His defense was lack of criminal responsibility and mental impairment.

2. Voir dire of the jury venire. Defense counsel requested that prospective jurors be questioned individually concerning any bias they might have as a result of pretrial publicity of the killing.² He also asked that prospective jurors be questioned individually as to whether they would tend to believe the testimony of a police officer over a civilian witness. The judge refused both requests, which the defendant now claims was an abuse of discretion sufficient to warrant a new trial or reduction in the verdict.

During empanelment, the judge asked the jurors the questions required by G. L. c. 234, § 28, as well as numerous other questions regarding their impartiality. Questioned as a group, he asked the jurors whether they had any knowledge of the case from any pretrial publicity, and then questioned individually those jurors who responded affirmatively. He seated only those who informed him that they could be fair and impartial. He followed this same procedure with respect to determining whether any prospective juror would view the testimony of a police officer more favorably than any other witness. More was not required.

The purpose of inquiries directed to prospective jurors is not to determine to what views they may have been exposed; it is to determine whether jurors will set aside their own opinions, weigh the evidence (excluding matters not properly before them), and follow the instructions of the judge. Commonwealth v. Subilosky, 352 Mass. 153, 158-160 (1967). Thus a juror need not be "totally ignorant of the facts and issues involved." Commonwealth v. Jackson, 388 Mass. 98, 108 (1983), quoting Murphy v. Florida, 421 U.S. 794, 800 (1975). Here the defendant points to no specific circumstances to suggest that any extraneous issues may have adversely affected any juror. Whether to accept the declaration of a juror that he or she is disinterested lies within the broad discretion of the trial judge. Commonwealth v. Subilosky, supra at 159. The judge did not abuse his discretion.

3. Evidence of prior bad acts and alleged hearsay. The defendant challenges the admission in evidence of portions of the testimony of thirteen witnesses regarding his prior bad acts or threats toward the victim, as well as testimony he claims is hearsay. Combined with evidence he maintains was improperly admitted concerning the victim's state of mind, the defendant argues that he was convicted because the jury were led to believe he was a cruel and abusive person, not for any act he committed.

At trial the defendant objected to the testimony of only one of these witnesses, a Taunton police officer.³ In his motion for a new trial he argued that he had been denied the effective assistance of counsel and, in that connection, the defendant pointed to aspects of the testimony of another eleven witnesses to which trial counsel had not objected as indicating "an overwhelming number of prejudicial hearsay statements" improperly admitted. He raises for the first time here his challenge to the testimony of a thirteenth witness.

The motion judge approached the various claims of ineffective assistance of counsel in two ways. First, with respect to some of the evidence that the defendant claimed was erroneously admitted, the judge simply rejected the defendant's claim of ineffectiveness by ruling that counsel's failure to object to the evidence did not satisfy the constitutional standard by which ineffectiveness is measured, see Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977); Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), without addressing the underlying question whether the evidence was properly admitted. As to that evidence, we apply the substantial likelihood of a miscarriage of justice standard of review. Commonwealth v. Wright, 411 Mass. 678, 681-682 (1992). With respect to certain other evidence, however, the judge did more than simply reject the defendant's claims of counsel's ineffectiveness; he affirmatively addressed the substantive merits of the underlying evidentiary issues. He rejected the claims of ineffective assistance of counsel based on the failure to object because, he concluded, the evidence was admissible and properly admitted. By reaching the merits of the underlying issues, the judge resurrected the otherwise unpreserved claims of error. We review those claims as if properly preserved by applying the prejudicial error standard of review. Commonwealth v. Vinnie, 428 Mass. 161, 163 n.2, cert. denied, 525 U.S. 1007 (1998). Commonwealth v. Hallet, 427 Mass. 552, 552-555 (1998).

(a) We consider first for prejudicial error the testimony to which the defendant objected at trial and the eight claims of error that the motion judge addressed on the merits. We conclude that the testimony of only one witness, Officer Lyle Paulson, was erroneously admitted.

Officer Paulson testified that on April 9, 1992, he stopped the defendant based on information he had received that the defendant was in an area near the victim's residence and had telephoned her. On that date there was no protective order in effect against the defendant, a protective order having been vacated the day before. The motion judge concluded that the evidence was properly admitted "to show the relationship of the parties," citing Commonwealth v. Lodge, 431 Mass. 461, 470 (2000). The evidence should not have been admitted. The Lodge case concerned evidence of a victim's "state of mind" as proof of the defendant's "motive" to kill. Paulson's testimony did not throw any light on the victim's state of mind, or that her state of mind was known to the defendant. See Commonwealth v. Seabrooks, 425 Mass. 507, 512-513 & n.7 (1997), S.C., 433 Mass. 439 (2001). We nevertheless conclude that "stripping the erroneous action from the whole," the judgment of conviction was not "substantially swayed" by the error. Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1985). Cross-examination by defense counsel made clear to the jury that Officer Paulson knew that there was no existing protective order against the defendant. Stripped of any taint of illegal activity by the defendant, the officer's testimony that the defendant had contacted the victim after s...