Opinion
09-P-250
10-07-2011
COMMONWEALTH v. JAMES O'NEILL.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant was convicted of second degree murder. We affirm, referring to the facts as they are pertinent to the issues raised on appeal.
The victim's electronic mail (e-mail). Prior to trial, the Commonwealth filed a motion in limine to admit in evidence an e-mail sent by the victim to a friend on the day of the murder. The Commonwealth's stated purpose was to show the victim's state of mind and to demonstrate a motive for the crime. '[T]he state of mind or intent of a person, whenever material, may be shown by his declarations out of court.' Commonwealth v. Qualls, 425 Mass. 163, 167 (1997), quoting from Goldman, petitioner, 331 Mass. 647, 651 (1966), S. C., 353 Mass. 684 (1968). See Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 295-296 (1892) (letter stating deceased's intention admissible). Moreover, '[t]he state-of-mind exception to the hearsay rule calls for admission of evidence of a murder victim's state of mind as proof of the defendant's motive to kill the victim when and only when there also is evidence that the defendant was aware of that state of mind at the time of the crime and would be likely to respond to it.' Qualls, supra. The trial judge admitted a redacted version of the e-mail.
On appeal, the defendant challenges the admissibility of the e-mail as state-of-mind evidence, arguing that a jury could not infer that the defendant was aware of the victim's state of mind. We disagree.
The Commonwealth sought to show that the motive for the killing included tension over the defendant's fraudulent use of the victim's America Online (AOL) account and the defendant's continuing unauthorized use of the victim's computer. In the e-mail at issue, which the victim wrote to a friend on the day of his murder, the victim relates that he cancelled the defendant's AOL access, stating that he 'can't wait for [the defendant] to go into his room and try to get on-line.' As our cases refer to the need for evidence of a suspect's knowledge of a victim's state of mind, see Commonwealth v. Borodine, 371 Mass. 1, 7-8 (1976); Commonwealth v. Mendes, 441 Mass. 459, 471-472 (2004), the Commonwealth presented additional evidence that the defendant knew of the victim's anger toward him. One witness testified that the defendant had stated that the victim was 'upset and angry' over the defendant's unauthorized use of the victim's computer. Further, the Commonwealth specifically produced evidence that contradicted the defendant's version of events relating to his presence on the night of the crime in the trailer he shared with the victim. The jury could infer from inconsistencies in the defendant's statements about the amount of time he spent in the trailer on the night in question that he was concealing the fact that he had argued with the victim over his unauthorized use of the defendant's computer.
The prosecutor's closing. 'The prosecutor should tailor his comments so that they remain 'properly grounded in the evidence." Commonwealth v. Pope, 406 Mass. 581, 587 (1990), quoting from Commonwealth v. Corriveau, 396 Mass. 319, 337 (1985). 'The prosecutor must [also] limit closing argument to the evidence and the fair inferences to be drawn therefrom.' Commonwealth v. Smith, 456 Mass. 476, 487 (2010).
After reviewing the record, we conclude that the closing argument was based on properly admitted evidence, with two possible exceptions, which we discuss briefly. During his closing argument, the prosecutor referred to the defendant's being 'a little bit envious' of the victim. While there was some basis for this assertion -- inasmuch as the victim had access to a computer which he attempted to withhold from the defendant -- from the totality of the evidence presented at trial we must characterize this statement as speculative. Secondly, with regard to the tarpaulin in which the body was wrapped, the prosecutor stated that '[t]he defendant is the only person that's going to know where to go to get that tarp.' Given that others could conceivably have deduced where a tarp was to be found, this was also conjectural, or at least an overstatement through the use of the word 'only.'
The record is unclear whether the defendant properly objected at trial to these portions of the prosecutor's closing argument. However, we need not reach the issue of whether a proper objection was lodged, as we conclude that any error was not prejudicial. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). These were passing references in the context of the entire closing and enjoyed some, albeit insufficient, basis in the record. Moreover, the evidence presented at trial as to the defendant's guilt was strong, including evidence of hostility between the defendant and the victim, whether grounded in envy or some other emotion, and a recorded answering machine message in which the defendant apparently confessed to the crime. We note as well that the judge properly instructed the jury that counsel's remarks are not to be considered as evidence.
This cautionary instruction was also required here by the prosecutor's fanciful use of imaginary conversation between the victim and the defendant.
Manslaughter instruction. Voluntary manslaughter is 'a killing committed in 'a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon sudden combat." Commonwealth v. McLeod, 394 Mass. 727, 738 (1985), quoting from Commonwealth v. Hicks, 356 Mass. 442, 445 (1969). The defendant's argument that the judge should have instructed on voluntary manslaughter does not reach the level of appellate argument required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), because he fails to identify which theory of voluntary manslaughter he believes to have been supported by the evidence. Even considering the argument will not avail him. To the contrary, the defendant's theory was that he was not present during the murder, and he did not request the instruction at trial. While there was contradictory evidence from some of which the jury could infer that an argument over AOL access occurred, this alone does not rise to the level 'that would have warranted the finding of a reasonable doubt as to the existence of such provocation' or, alternatively, a possibility of sudden combat, necessary for voluntary manslaughter. Commonwealth v. Bockman, 442 Mass. 757, 768 (2004).
Judgment affirmed.
By the Court (Kafker, Green & Grainger, JJ.),