Opinion
20-P-811
03-15-2022
COMMONWEALTH v. Michael DOWJAT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury of the Superior Court found the defendant, Michael Dowjat, guilty of murder in the second degree. He now appeals, claiming error in (1) the self-defense instructions provided to the jury, (2) comments made by the prosecutor during closing argument, (3) questions by the prosecutor on the defendant's postarrest silence and exercise of attorney-client privilege, (4) the admission of testimony bearing on the ultimate issue of guilt, (5) the admission of a series of graphic autopsy photographs, and (6) the authentication and relevance of a journal entry written by the victim. For the reasons that follow, we affirm.
The jury found the defendant not guilty of murder in the first degree.
Background. We recount the key evidence at trial, reserving certain details for later discussion. On June 7, 2014, the defendant visited the victim, his younger brother, at the victim's home in Rutland. The brothers were estranged and had not seen one another in over twenty years. Despite their estrangement, the defendant somehow entered the victim's home, where a struggle between the two men ensued -- one that ended with the victim deceased from blunt force trauma to the head and sharp wounds to the neck and torso caused by the defendant.
The defendant testified at trial and set out a theory of self-defense. According to the defendant, his brother willingly let him into the home and their interaction began cordially. He recalled, however, that the conversation turned sour when he brought up their father's passing. The defendant asked the victim why the defendant had not been allowed to assist when their father's health declined or been invited to attend his funeral. The defendant claimed this inquiry caused the victim to "flare[ ] up," and he attacked the defendant, punching and hitting him all over his body.
The defendant's father passed away in 1993.
The defendant claimed that he initially tried to fight back with nondeadly force. At some point, the defendant and the victim fell to the ground. When the victim continued to hit and punch the defendant, the defendant was able to locate a small knife from a set of tools he had knocked over earlier in the struggle. The defendant testified that he only sought to get the victim off him but that he started "thrusting" the knife until the victim let go. When the victim attempted to come at him again, the defendant began stabbing the victim in the face until the victim collapsed. The defendant recalled that he too "collapsed" moments later and awoke after an "extended period of time."
After regaining consciousness, the defendant discovered that his brother was dead. He took some time to collect himself and then left the victim's home, never calling the authorities or informing anyone about the killing. In the days that followed, the defendant lied to family members about the source of his injuries, which included broken teeth as well as numerous bruises and cuts on his right arm and hand.
Several days after the killing, the defendant returned to the victim's house to move the victim's body to a "bunker," also described as a "bomb shelter," located on the property. Because he was physically unable to move the body, the defendant decided he would "take pieces of the body off ... to make it light enough to move." The defendant proceeded to dismember the victim using handsaws he located in the cellar. The defendant then left the scene, again failing to contact the authorities.
The defendant stated that he wanted to move the body because it was decomposing, and he "didn't want to have that occur in his house, my parents’ house, that sort of thing." The defendant claimed that he planned to leave the body in the shelter permanently.
Meanwhile, two of the victim's friends began to worry after not hearing from the victim for several days. On June 14, 2014, they visited the victim's home, made entry, and came across the bloody scene of the killing. The men called the police, who later discovered the victim's body in the bomb shelter. The next day the State police visited the defendant at his home to inform him of his brother's death. The defendant claimed that he had not seen the victim in over ten years.
In the days that followed the discovery of the victim's body, the police discovered substantial evidence incriminating the defendant as the killer, such as deoxyribonucleic acid (DNA) evidence linking him to the crime scene, and he was charged with first-degree murder. A trial was held in the Spring of 2018.
At trial, the Commonwealth sought to prove the charge of first-degree murder with two alternate theories: deliberate premeditation and extreme atrocity or cruelty. It focused primarily on the theory of deliberate premeditation and offered a very different version of events than the one the defendant recounted on the stand. In furtherance of this theory, the prosecution presented evidence of the defendant's advance planning of the crime, his means of commission, and his motives. The evidence establishing his preparation included: maps discovered in his home depicting the victim's property and surrounding areas, some of which had been highlighted and written on ; testimony that the defendant's cell phone was either shut off or not in service on the day of the murder; and testimony that, prior to the killing, the defendant lied to his family about where he was headed, informing them that he planned to go boating with a friend. To show how the defendant committed the crime, the prosecution offered evidence suggesting the defendant broke into the victim's home and attacked him, including testimony about the victim's extensive home security system and a handwritten note from his journal stating that the defendant was "forbidden" on his property. Finally, as to motive, the prosecution offered testimony about the financial jealousy the defendant may have harbored against the victim, who inherited their father's entire estate, as well as evidence, including a notice of bankruptcy found in the defendant's home, of the defendant's current financial struggles.
One of the maps depicted a highlighted path from the defendant's house to the victim's house.
To negate the defendant's theory of self-defense, the prosecution also advanced evidence of the defendant's attempts to cover up the crime, including evidence of the many lies he told his family and police officers as well as evidence of his return to the victim's home.
Ultimately, after hearing all the evidence, the jury found the defendant not guilty of first-degree murder but guilty of the lesser included offense of second-degree murder.
Discussion. 1. Jury instructions. The defendant makes several arguments surrounding the self-defense instructions provided to the jury.
The defendant argues that his trial counsel's failure to preserve the self-defense instruction errors amounted to ineffective assistance of counsel. Because we determine that the instructions were appropriate as given, we reject this claim. See Commonwealth v. Vargas, 475 Mass. 338, 353 n.19 (2016).
First, he contests the inclusion of a first aggressor instruction, claiming there was insufficient evidence to support it. The parties dispute whether the issue was properly preserved. Because we conclude that there was no error, we need not resolve this dispute.
If self-defense is an issue at trial, the burden rests with the Commonwealth to prove, beyond a reasonable doubt, that the defendant did not properly act in self-defense. Commonwealth v. Harris, 464 Mass. 425, 434 (2013). The Commonwealth can satisfy its burden by proving any one of five propositions, one of which is that the defendant acted as the first aggressor in the conflict. See Model Jury Instructions on Homicide 21-22 (2013).
The defendant's trial took place shortly before the release of the 2018 Model Jury Instructions on Homicide. While the language of the fifth proposition contained some minor adjustments, the substance of the instruction remained the same.
The judge's first aggressor instruction mirrored the model instructions and stated in relevant part:
"The fifth proposition is that the defendant was the first to use or threaten deadly force and did not withdraw in good faith from the conflict and announce to the person he provoked his intention to withdraw and end the confrontation without any use of or additional use of force. The right of self-defense cannot be claimed by a defendant who was the first to use or threaten deadly force because the defendant must have used or attempted to use all proper and reasonable means under the circumstances to avoid physical contact before resorting to the use of deadly force. A defendant who provokes or initiates such a confrontation must withdraw in good faith from the conflict and announce to the person he provoked his intention to withdraw and end the confrontation without the use of force or additional force."
This instruction was warranted given the evidence presented. See Commonwealth v. Galvin, 56 Mass. App. Ct. 698, 699 (2002) (evidence of self-defense can be contained in Commonwealth's case, defendant's case, or both). We disagree with the defendant's contention that the Commonwealth's evidence supporting the instruction was no more than "speculation and conjecture." While it is true that much of the evidence presented by the Commonwealth was circumstantial, that does not render it insufficient. See Commonwealth v. Mattos, 49 Mass. App. Ct. 218, 223 (2000), quoting Commonwealth v. Gilbert, 423 Mass. 863, 868 (1996).
Among other things, evidence that the defendant planned the murder and attacked the victim in his home, thereby rendering him the first aggressor, included: evidence that the defendant may have shut off his phone on the day of the killing; that he lied about where he was going; that the victim did not want his brother in his home; that the victim's home was difficult to enter; and that the disparity in injuries suffered by the parties was great. Contrary to the defendant's claim, the inference from this evidence -- that the defendant was the initial aggressor -- was both reasonable and possible, not speculative or conjectural. See Commonwealth v. Mattos, 49 Mass. App. Ct. 218, 223 (2000).
Second, the defendant challenges the first aggressor instruction because it failed to define the word "provocation." This failure, he argues, may have allowed the jury to believe that the defendant's "mere non-threatening words alone" were enough to consider the defendant the initial aggressor. Trial counsel did not raise this issue, therefore, we review for a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
The defendant's argument relies on Harris, a case involving the 1999 Model Jury Instructions on Homicide. See Harris, 464 Mass. at 433. In Harris, supra at 433-434, the instruction at issue was: "A person who provokes or initiates an assault ordinarily cannot claim the right of self-defense unless he withdraws in good faith from the conflict and announces his intention to retire." The Supreme Judicial Court cautioned that the language of this instruction was "potentially overbroad because it does not define what constitutes provocation of the type that results in the forfeiture of a self-defense claim," thus, a jury could misconstrue the term to include verbal provocation. Id. at 436.
However, the defendant's reliance on Harris is misplaced, because the Model Jury Instructions on Homicide were updated shortly after that decision, to "address[ ] the potential overbreadth of [the] earlier definitions of ‘first aggressor’ and clarif[y] that, in the context of homicide, a defendant may lose the right to claim self-defense only if he ‘was the first to use or threaten deadly force.’ " Commonwealth v. Chambers, 465 Mass. 520, 528 (2013), quoting Model Jury Instructions on Homicide 28-29 & n.68 (2013). The updated instructions adequately convey this limitation, as the jury do not reach the question whether the defendant made any "announce[ment] to the person (or persons) he provoked," and thus do not consider the meaning of "provoked," unless they are first persuaded beyond a reasonable doubt that "the defendant was the first to use or threaten deadly force." Model Jury Instructions on Homicide 28 (2013).
The Harris court determined that the instructions given in that case were not prejudicial because there was "no view of the evidence in ... [which] the defendant, if seen as the first aggressor, [could] be said to have provoked or initiated the altercation by words alone to the victim." Harris, 464 Mass. at 436. While we need not decide whether the same applies here, we think it unlikely that a reasonable jury could have construed the instruction in this case to mean that legal provocation arose merely from the defendant asking the victim why the defendant was unable to help their father or attend his funeral, especially where the judge instructed the jury, in connection with the lesser included offense of involuntary manslaughter, that "Mere words, no matter how insulting or abusive, do not by themselves constitute reasonable provocation."
We briefly address the defendant's final argument, that the judge erred in failing to provide an optional instruction on the concept of escalation. That instruction did not exist at the time of the defendant's trial but originated in the 2018 revision to the Model Jury Instructions on Homicide. See Model Jury Instructions on Homicide § 2.4.1, at 2-18 (Mass. Cont. Legal Educ. 2018). Compare Model Jury Instructions on Homicide 28-30 (2013). In any event, the judge did not err in failing to provide the instruction, because there was no evidence that the victim responded to the defendant's first use of nondeadly force by escalating to the use of deadly force.
2. The prosecutor's closing argument. The defendant also objects to a comment made by the prosecutor during closing argument. In furtherance of the Commonwealth's theory of deliberate premeditation, the prosecutor argued that the defendant "ambush[ed]" his brother on June 7. The defendant contends that this statement was in error because the Commonwealth did not present evidence to support it.
The defendant further argues that this error was prejudicial because it "struck at the very heart of [the] defense: that [the defendant] had not acted with the specific intent to kill, but instead had acted in self-defense."
The parties again dispute the standard of review. But because we discern no error, the outcome is the same regardless of whether we review for a substantial risk of a miscarriage of justice or for prejudicial error.
In their closing argument, prosecutors "are entitled to marshal the evidence and suggest inferences that the jury may draw from it." Commonwealth v. Roy, 464 Mass. 818, 829 (2013), quoting Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). Those inferences "need only be reasonable and possible." Roy, supra. A prosecutor is also "entitled to cast the evidence in terms favorable to the Commonwealth." Commonwealth v. Anderson, 411 Mass. 279, 286 (1991).
Here, the prosecutor did no more than marshal the considerable, albeit largely circumstantial, evidence of the defendant's advance preparation for the crime, as well as the means by which he committed it, and frame it in terms favorable to the Commonwealth's theory of deliberate premeditation. The inference from this evidence, that the defendant ambushed the victim in his home, was reasonable and possible. See Roy, 464 Mass. at 829.
3. Fifth Amendment right to remain silent and attorney-client privilege. The defendant next challenges a question posed to him on cross-examination, when the prosecutor pressed the defendant about the lies he told prior to and in the wake of the killing. Among other concessions, the defendant admitted lying to his family about his plans on June 7; lying about how he sustained his injuries; and lying to police about the last time he saw his brother. The prosecutor concluded his examination by contrasting these lies with the version of events the defendant recounted on direct examination. In doing so, the prosecutor stated: "And the story that you just told us about going to your brother's house, knocking on the window, being let in, having a conversation, and a fight ensuing, the first time you told anyone that story besides your lawyer is 30 minutes ago, correct?" The defendant responded, "correct."
The defendant had already preemptively admitted to some of these lies on direct examination.
Defense counsel did not object until the next day, when he asked the judge to strike the answer and prohibit the prosecution from referencing it in closing. At that point, the judge heard arguments from both parties before denying the request to strike. The prosecutor did not reference the exchange in his closing argument. The defendant now alleges that this question improperly referred to his postarrest silence in violation of his Fifth Amendment rights and "disparaged" his exercise of attorney-client privilege. As there was no timely objection, we review to determine whether any error created a substantial risk of a miscarriage of justice. Alphas, 430 Mass. at 13.
First, there was no violation of the Fifth Amendment. Because the defendant chose to testify, he was "subject to the ordinary rigors of proper cross-examination, including questioning about prior inconsistent statements voluntarily made." Commonwealth v. Rivera, 425 Mass. 633, 639 (1997). The prosecutor's question was not a comment on the defendant's postarrest silence. Rather, the question properly served to "alert[ ] the jury to possible flaws in the defendant's testimony," Commonwealth v. Sherick, 401 Mass. 302, 305 (1987), by highlighting the conflict between the lies he told his family and the police prior to his arrest and the story he recounted on the stand.
Second, the question did not implicate the defendant's exercise of his attorney-client privilege. Although the issue should be approached with caution, we have no rule categorically prohibiting a prosecutor from referencing the mere fact that a client likely conferred with his attorney about a certain topic. The prosecutor's question did not require the defendant to divulge privileged information, nor did it imply that the defendant was guilty because he retained the services of an attorney. See Commonwealth v. Person, 400 Mass. 136, 141 (1987). There was no error, and no risk of a miscarriage of justice.
4. Ultimate issue. The defendant claims error in the admission of certain testimony from the defendant's sons on redirect examination. The prosecutor asked each son to answer with a "yes" or "no" whether they had seen their father since June of 2014. Both sons answered "no." Defense counsel only objected to one son's answer but now claims that both answers created prejudicial error and a substantial risk of a miscarriage of justice by implying that the sons had not seen the defendant since his arrest because they believed him to be guilty, and therefore constituted improper ultimate issue testimony. We disagree.
Because we determine that the judge did not err in allowing the exchange, we need not decide whether counsel fully preserved the issue.
It is fundamental that no witness should be permitted to give his opinion directly that a person is guilty or innocent. See Commonwealth v. Hesketh, 386 Mass. 153, 161 (1982). However, so long as a witness "does not directly offer an opinion regarding the defendant's guilt or innocence in a criminal case," there is "no rule in Massachusetts prohibiting an opinion that touches on an ultimate issue." Commonwealth v. Canty, 466 Mass. 535, 543 (2013). See Mass. G. Evid. § 704 (2021) ("An opinion is not objectionable just because it embraces an ultimate issue"). Therefore, when "an opinion comes close to an opinion on the ultimate issue of guilt or innocence, the probative value of the opinion must be weighed against the danger of unfair prejudice." Canty, supra at 543-544. We have recognized "that the risk of prejudice arising from the admission of an opinion that closely touches on the ultimate issue of guilt is less with lay opinion than with expert opinion ... because it is less likely that a jury would ‘forego independent analysis of the facts and bow too readily to the opinion’ where it is not reached through the specialized knowledge of an expert." Id. at 545, quoting Commonwealth v. LaCorte, 373 Mass. 700, 705 (1977). We review a judge's decision of whether the probative value of evidence is "substantially outweighed by the danger of unfair prejudice" for an abuse of discretion. Commonwealth v. Bradshaw, 86 Mass. App. Ct. 74, 79 (2014). We refrain from overturning such decisions unless there is "palpable error." Id.
The record does not reflect the judge's balancing process. Nevertheless, allowing the prosecutor's question was not "palpable error." The probative value of the inquiry may not have been great, but the danger of unfair prejudice was likewise negligible: the sons served as lay witnesses, who testified to a factual question that did not bear directly if at all on the defendant's guilt. That their answers may have indirectly implied their belief in the defendant's guilt did not render the answers inadmissible. See Canty, 466 Mass. at 543.
After defense counsel's objection to the second son's answer, the judge conducted a sidebar conference. He prohibited the prosecutor from eliciting testimony that the defendant's son saw his father to say goodbye to him but allowed the prosecutor to elicit information about the last time the son saw his father.
On cross-examination, defense counsel elicited testimony that both sons had a good relationship with their father growing up and that he had never been violent with them. By creating the impression of a positive family life, the defendant opened the door for the Commonwealth to give a more complete picture of the relationship.
It is worth noting that the sons’ answers did not necessarily imply such a belief. The sons could have, for instance, believed that the defendant acted in self-defense but still declined to see him because they were disturbed by the lies he told or by the fact that he dismembered the victim.
5. Admission of autopsy photographs. The defendant argues that the judge abused his discretion in admitting twelve autopsy photographs of the victim that depicted his decapitated and dismembered body. Specifically, he claims the photographs were irrelevant as the victim's dismemberment and decapitation did not play a role in his death, and that any probative value was far outweighed by the danger of unfair prejudice.
The Commonwealth filed a motion in limine to present the images at trial, which the judge granted in a written decision after conducting a hearing.
The admission of graphic photographs lies "within the sound discretion of the trial judge." Commonwealth v. Bell, 473 Mass. 131, 142 (2015). Where such "photographs possess evidential value on a material matter, they ‘are not rendered inadmissible solely because they are gruesome ... or may have an inflammatory effect on the jury’ " (citation omitted). Id. The trial judge is charged with exercising his discretion to "determine whether the inflammatory nature of a photograph outweighs its probative value." Id., quoting Commonwealth v. Cardarelli, 433 Mass. 427, 431 (2001). The defendant's burden to show an abuse of discretion is a heavy one. Commonwealth v. Dagenais, 437 Mass. 832, 841 (2002).
The defendant has not met his burden in this case. The defendant was charged with first-degree murder and claimed self-defense. The judge properly found that the photographs had evidentiary value as they were relevant to show deliberate premeditation and to negate the theory of self-defense. As the judge noted: "Specifically, the photographs depict the decedent's dismembered body which issue is relevant to the defendant's consciousness of guilt[ ] or an attempt to conceal and/or dispose of the decedent's body post-death."
Given their evidentiary value, the graphic nature of the photographs was not dispositive. See Bell, 473 Mass. at 142. The record shows that the judge conducted a careful balancing before concluding that the potential for unfair prejudice arising from the images did not outweigh their significant probative value. Further, the judge acted to appropriately limit the prejudicial effect of the images by excluding two of the fourteen offered by the Commonwealth, screening prospective jurors for their ability to remain impartial in the face of graphic photographs, and repeatedly instructing the jury that its verdict should not be based on the shocking nature of the images or the jury's emotions when viewing them.
6. Admission of victim's journal entry. Finally, the defendant contends that the trial judge abused his discretion in admitting a journal entry, written and signed by the victim, stating that the defendant was forbidden from entering his home. Although he did not object on this ground below, on appeal the defendant claims that the journal entry lacked a proper foundation.
At trial, the item was described as a book, a journal, and a ledger.
The note stated: "To Whom it May Concern. Michael Dowjat is forbidden on property under any circumstances. No exceptions..... If Michael Dowjat refuses, have him arrested."
At trial, defense counsel objected to the admission of the journal entry on the grounds that it may have been written thirty years earlier and was therefore irrelevant to the relationship between the victim and the defendant at the time of the fatal encounter.
We review a judge's authentication determination for an abuse of discretion. See Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 585 (2017). To satisfy the requirement of authentication, the proponent must produce sufficient evidence to support a finding, by a preponderance of the evidence, that the item is what the proponent claims it to be. Mass. G. Evid. § 901(a) (2021); Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 366-367 (2014). Authenticity is typically established by testimony from a qualified witness showing "(1) that the thing is what its proponent represents it to be, or (2) that circumstances exist which imply that the thing is what its proponent represents it to be." Commonwealth v. Perez, 460 Mass. 683, 699 (2011), quoting LaCorte, 373 Mass. at 704. Either direct or circumstantial evidence will suffice, including evidence of an object's "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics" (citation omitted). Commonwealth v. Purdy, 459 Mass. 442, 447-448 (2011).
Here, the victim's journal entry was properly authenticated by the testimony of a witness, Lieutenant Daniel Wildgrube, who possessed knowledge that the item was what the Commonwealth claimed it to be. See Mass. G. Evid. § 901(b)(1) (2021). The Lieutenant testified that he served as the evidence officer at the victim's home on June 14, responsible for documenting, collecting, and packaging property taken from the scene. He further testified that officers located the item containing the entry in the victim's bathroom and that it appeared at trial to be in the same condition it was when first located. Finally, the Lieutenant read the contents of the entry, including the victim's signature, in evidence. While it is true that the Commonwealth could have done more to meet its burden, the testimony of Lieutenant Wildgrube was sufficient circumstantial evidence of the item's appearance, contents, and location to establish by a preponderance of the evidence that it was an entry from the victim's journal. See Commonwealth v. Sargent, 98 Mass. App. Ct. 27, 32 n.8 (2020).
The judge did not abuse his discretion in admitting it.
Connolly, relied on by the defendant, involved the authentication of a video recording that was not produced at trial. Instead, testimony about its contents was presented by an officer who did not witness the incident depicted in the video or possess personal knowledge about how the video was recorded or stored. Connolly, 91 Mass. App. Ct. at 586-588. Here, Lieutenant Wildgrube had personal knowledge about the entry's discovery and collection, therefore, Connolly is inapposite.
Judgment affirmed.