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SJC-12100
COMMONWEALTH vs. JULIE A. COREY.
Worcester. December 8, 2023. – March 18, 2024.
Present: Budd, C.J., Gaziano, Kafker, & Georges, JJ.
Homicide. Practice, Criminal, Assistance of counsel, Motion for a required finding, Appeal by Commonwealth, Psychiatric examination, Capital case. Cellular Telephone. Felony-Murder Rule. Kidnapping. Evidence, Expert opinion, Inference.
Indictment found and returned in the Superior Court Department on December 17, 2009.
The case was tried before Janet Kenton-Walker, J., and a motion for a new trial, filed on February 8, 2019, was heard by her.
Janet Hetherwick Pumphrey for the defendant. Ellyn H. Lazar, Assistant District Attorney, for the Commonwealth.
KAFKER, J. The defendant, Julie A. Corey, was convicted of
murder in the first degree on theories of deliberate
premeditation, extreme atrocity or cruelty, and felony-murder
with a predicate felony of aggravated kidnapping in violation of 2
G. L. c. 265, § 26. Following her conviction, the defendant
filed a motion for a new trial, arguing that she received
ineffective assistance of counsel because trial counsel failed
to call a cell phone expert to testify about her location on the
night of the murder.1 Her motion also included a request that
the motion judge enter a required finding of not guilty. The
motion judge, who was also the trial judge, denied the
defendant's motion for a new trial. The judge, however, vacated
the defendant's conviction of murder in the first degree on a
theory of felony-murder after finding that the evidence was
insufficient to prove the defendant committed the predicate
felony of aggravated kidnapping.
The defendant now appeals from the denial of her motion for
a new trial, again raising the argument that she received
ineffective assistance of counsel because trial counsel failed
to call a cell phone expert. The defendant also requests that
we exercise our powers pursuant to G. L. c. 278, § 33E (§ 33E),
to reduce her conviction. The Commonwealth, in turn, appeals
from the judge's order vacating the defendant's felony-murder
conviction. We disagree with the defendant that she received
1 The defendant also argued that she received ineffective assistance of counsel because trial counsel failed to call a psychiatric expert to testify about her alleged postpartum depression at the time of the murder. She does not raise this specific claim of ineffective assistance on appeal. 3
ineffective assistance of counsel. Trial counsel's decision not
to call a cell phone expert was not ineffective, nor would it
have likely influenced the jury's conclusions. Additionally, we
agree with the Commonwealth that there was sufficient evidence
to find the defendant guilty of felony-murder with a predicate
felony of aggravated kidnapping, and so we reinstate that
conviction. Finally, after reviewing the entire record, we find
no basis upon which to reduce the defendant's conviction and
therefore decline to exercise our § 33E powers.
1. Background. We recite the facts as the jury could have
found them, reserving some details for later discussion.
a. The Commonwealth's case. On July 27, 2009, the
landlord of an apartment building on Southgate Street in
Worcester (Southgate) entered the apartment of Darlene Haynes
(victim), in response to concerns about the victim's pets. Upon
entering, he perceived a "[v]ery foul" smell. He went into the
victim's bedroom, walked over to the closet, and pulled on a
blanket. A leg fell out. The body was later identified as the
victim's. An autopsy of the victim revealed blunt force trauma
to her head, an electrical cord wrapped twice around her neck
causing strangulation, a nine-inch incision of her abdomen, and
missing reproductive organs. The victim was pregnant at the
time she was killed, due anytime. 4
The victim and the defendant had briefly been neighbors at
Southgate, where the defendant resided with her boyfriend, Alex
Dion. The defendant and Dion dated on and off for about two
years. In the spring of 2008, the defendant and Dion broke up.
They got back together when the defendant became pregnant.
During their relationship, the defendant was jealous and
frequently accused Dion of cheating on her. Sometime in 2008,
while they were living at Southgate, the defendant had a
miscarriage. Soon afterwards, the defendant and Dion again
broke up and then moved out of Southgate.
In February of 2009, the defendant and Dion resumed
communications. The defendant told him that she was once again
pregnant with his baby -- a girl -- and was due on June 20.
After getting back together, Dion and the defendant were
frequently fighting about whether she was or was not pregnant,
with the defendant trying to convince Dion by showing him
pregnancy tests and having him listen to a baby monitor. The
defendant, however, would not let Dion attend doctor's
appointments with her. On April 13, 2009, the defendant was
taken to the hospital complaining of pain. Dion was asked to
leave the defendant's hospital room. Medical records from the
visit indicated that the defendant was thirty weeks pregnant and
that there was good fetal activity. The defendant told the
doctor that she was in a fight with her boyfriend and that she 5
was afraid he would return to his wife. She eventually left the
hospital against medical advice.
The defendant's due date came and went. When June 20
passed, she told Dion that her due date was instead July 2.
When July 2 passed, the defendant told Dion she was due on July
4. When that date also passed, she told Dion she was scheduled
for a cesarean section but was then "bumped off the list."
Eventually, she told Dion her cesarean section was scheduled for
July 24. The defendant similarly gave friends and family
changing due dates.
On July 23, the defendant and Dion were together at home,
which was then the house of Dion's uncle, Kevin Dion. The two
had prepared for the defendant's cesarean section the next day,
packing Dion's car with an overnight bag. In the afternoon, the
defendant left, telling Dion that she was going to a friend's
house. She later called Dion and told him she planned to give
the victim a ride to the store. Dion found this odd because, as
he and another witness testified, the defendant and the victim
were not friends. The victim's landlord saw the victim getting
into a car with the defendant in the afternoon, around 3:30 P.M.
That evening, the defendant returned home, but left again to
visit an unidentified friend. At around 8 P.M., the victim was
seen at a package store near Southgate, with Dion's car in the
parking lot. 6
Between 8:45 P.M. and 11:20 P.M., the victim sent text
messages to her friend, saying that another friend was coming
over to spend the night. In one text message, the victim said
that she was going to have a wine cooler. In the final text
message sent at 11:20 P.M., the victim said "[g]ood night."
Meanwhile, at around 10 P.M., the defendant began calling
Dion to tell him she was having stomach pains. Around 11:30
P.M., she called Dion to say that her water had broken and that
a friend was going to take her to a hospital in Framingham. One
or two hours later, she told him that she had a baby girl. The
defendant was calling Dion frequently throughout the night on
his uncle's telephone. During these telephone calls, the
defendant complained about the hospital, expressing frustration
with the way doctors were treating her and the baby, and telling
Dion she planned to leave against medical advice. Telephone
records for the uncle's telephone number suggested that the
defendant called twelve times. At one point, Dion received a
call on his uncle's telephone from the victim's cell phone
number. Dion testified that the victim had never before called
him.
On July 24 from 2 A.M. to 2:30 A.M., neighbors across the
hall from the victim's apartment heard banging noises coming
from the apartment. It sounded like someone was picking up
furniture and moving it around. From 3 A.M. to 4 A.M., they 7
heard water running on and off in the victim's apartment. They
did not go to the victim's apartment or contact anyone.
Between 7 A.M. and 8 A.M. on July 24, the defendant arrived
home with a baby. The defendant was wearing a new set of
clothes. Dion noticed that the baby had dried blood in the
creases of her arms and neck, and around her ears. He also
noticed that the umbilical cord did not have a plastic clip like
the hospital typically provided but was instead tied off with a
string. When Dion asked the defendant about the string, the
defendant said she had asked the doctor to take the plastic clip
off because it was too heavy.
The defendant began telling others she had a baby and
introducing the baby to them. She called her best friend and
told her. She invited a neighbor over to see the baby. The
neighbor also noted blood on the baby and the string tied around
her umbilical cord. The neighbor took the defendant and Dion to
the store to buy formula because the two had no money. Others
also saw the defendant with the baby on July 24, making note of
the baby's small size, of the string tied around the umbilical
cord, and that the baby was very cold.
On July 26, the defendant and Dion moved to New Hampshire,
where the defendant's father resided. They packed their
possessions and put them in Dion's car. When the two arrived at
the defendant's father's house, however, they were told they 8
could not stay. They were given money for a motel and the next
day sought assistance from a welfare office in New Hampshire.
The defendant had been receiving benefits due to her pregnancy.
She told a case technician with the welfare office that she had
little money but could not work. When the case technician asked
for a birth certificate or crib card for the baby, the defendant
said she did not have either. The defendant and Dion eventually
found a shelter where they could stay.
At various points during their time in New Hampshire, the
defendant became distressed about the baby. At a doctor's
visit, the defendant became aggravated when the doctor asked to
take a picture of the baby. She abruptly left with the baby
before the doctor could return with the camera. While
discussing the doctor's appointment at the shelter, the
defendant leaned against a wall and said, "Nobody's taking this
child away from me."
Later investigation revealed that the baby in the
defendant's care was not hers, but the biological child of the
victim and the victim's boyfriend, Roberto Rodriguez. A review
of hospitals in Framingham and Natick produced no records of the
defendant delivering a baby. In Dion's car, investigators found
a falsified birth certificate for the baby, listing Dion and the
defendant as her parents and a birthplace of Framingham. Police
also found a document from the defendant's health center, 9
stating that she would receive benefits during her pregnancy and
that she would need to reapply for benefits after her delivery.
Other documents from the Massachusetts Department of
Transitional Assistance were found in the car, including a
document requesting that the defendant attend a scheduled
appointment and bring the baby's birth certificate and stating
that, if she did not do so, she could lose her benefits.
Back in Massachusetts, law enforcement began investigating
and documenting the victim's apartment. In the bedroom where
the victim's body was found, red-brown stains saturated both
sides of the mattress on the bed. Red-brown stains were found
on other items in the bedroom and in the kitchen. Investigators
also found a "Smirnoff" bottle in the living room. When tested
for the presence of deoxyribonucleic acid (DNA), the defendant
matched the major profile. Another "Smirnoff" bottle was found
in the victim's bedroom. The defendant's fingerprint was
discovered on the bottle.
At trial, the Commonwealth alleged that by July 23 the
defendant had lost her own baby and was distraught. The
Commonwealth contended that the defendant was concerned Dion
would leave her if she did not have a baby and that she would
lose her benefits. The Commonwealth argued that the defendant,
seeking a solution for her problems, decided to kill the victim
and take the victim's baby as her own. 10
b. The defendant's case. At trial, the defendant
vigorously argued that, even if she took the baby, she did not
kill the victim. The defendant argued that it would not be
possible for her to commit the murder, clean up the victim's
apartment, dispose of the evidence, and take care of the baby,
all while repeatedly calling Dion.
Rather, the defendant argued that Rodriguez, the victim's
boyfriend and the father of the baby, committed the murder
because he was angry with the victim and no longer wished to be
in a relationship with her. The defense suggested that
Rodriguez, after murdering the victim, saved his baby and then
gave her to the defendant. The defendant further argued that
law enforcement's investigation of the murder, including
Rodriguez's involvement, was inadequate (a so-called Bowden2
defense).
As part of these defenses, the defendant introduced
evidence that Rodriguez had previously been violent toward the
victim, allegedly kicking her in the stomach and pushing her
into a glass coffee table. This altercation resulted in the
victim obtaining a restraining order against Rodriguez. The
defense also called a former girlfriend of Rodriguez, who
testified about an incident where Rodriguez became jealous and
2 Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). 11
angry, grabbing her by the neck and pulling her into another
room. She testified that Rodriguez then grabbed a belt, wrapped
it around her neck, and proceeded to choke her. He allegedly
told her that he was going to hang her and that it would only
hurt for "a second." The altercation only ended when the
telephone rang and Rodriguez left the room to answer it. In
closing argument, the defendant argued that Rodriguez's actions
toward both the ex-girlfriend and the victim demonstrated a
pattern of violence consistent with the murder.
The defendant presented additional evidence allegedly
connecting Rodriguez to the murder. The jury heard testimony
that a first-aid kit taken from the victim's apartment contained
DNA from both Rodriguez and the baby. The jury also heard the
testimony of an individual who saw Rodriguez on July 24 walking
"from the direction of the [nearby] cemetery." The witness
attempted to say hello to Rodriguez, but Rodriguez rushed away.
Rodriguez appeared disgruntled, dirty, and sweaty. The
defendant, in closing argument, suggested that Rodriguez could
have buried missing evidence, including the victim's
reproductive organs, at the cemetery. Finally, the jury heard
evidence that, during his first interview with the police
following the discovery of the victim's body, Rodriguez did not
inquire whether the baby had survived. 12
Arguing that law enforcement failed to adequately
investigate the murder, the defendant introduced evidence that
the police learned people were present in the victim's apartment
between July 23 and the day her body was discovered.3 The
defendant called a detective to discuss a statement from the
victim's neighbor. The neighbor told police that on the evening
of July 23, she saw the victim and the defendant smoking on the
back porch with an unknown male. The male was described as
white, roughly six feet tall, having tattoos, and wearing a
white "wife beater" T-shirt. When shown a photographic array,
the neighbor picked out a photograph of William Daviau, a friend
and former roommate of the victim and Rodriguez. The neighbor
also told the detective that around 4:45 A.M. on July 24, she
saw someone crawling through the window of the victim's
apartment who she believed was Daviau. The detective
subsequently interviewed Daviau about his whereabouts on July 23
and 24. Daviau stated that he was in a "drug rehab facility,"
where he was obligated to stay at night. Neither the detective
nor -- to his knowledge -- any other officer checked Daviau's
alibi.
3 The evidence was introduced not for the truth of the matter, but to demonstrate what was known by law enforcement, pursuant to Bowden. See Commonwealth v. Silva-Santiago, 453 Mass. 782, 802 (2009). 13
Another neighbor of the victim testified that on the night
of July 24, she saw an individual in the victim's apartment.
She recognized him as the friend of people who lived downstairs
and thought his name was "Tim." When Tim noticed the neighbor
looking, he pulled down the blinds. Later, on July 26, the same
neighbor saw a person climbing into the victim's window from the
front porch. She heard water being dumped over the porch. When
she went to investigate, she saw Tim standing in front of
another person who was trying to hide his or her face. The two
were returning from the porch, with Tim carrying a fish tank.
The neighbor mentioned that the victim had promised her a table.
When the neighbor and her friend tried to enter the victim's
apartment to get the table, Tim would not let them enter. The
jury later learned that Tim was Timothy Tripp, a friend of
Rodriguez. Tripp testified that on the night of July 26, he
went to the victim's apartment to obtain a fish tank that
Rodriguez had promised him. He stated that he only remained in
the apartment long enough to retrieve the fish tank. Tripp did
not remember if the police ever inspected the fish tank.
The defendant also argued that law enforcement failed to
adequately search for evidence. Law enforcement did not search
the cemetery from which Rodriguez was seen walking. After
finding a debit card belonging to Rodriguez in the victim's
apartment, an officer testified that he was not aware of anyone 14
in law enforcement analyzing the card's transactions to
determine whether it was recently left there. Neither
Rodriguez's apartment nor his car was searched. The defense
also elicited testimony that law enforcement did not test a
number of items found in the victim's apartment for
fingerprints. Although the victim was found with an electrical
cord wrapped around her neck, the police did not test a lamp
with a missing electrical cord for fingerprints.
In closing argument, trial counsel suggested that law
enforcement "left a lot of stones unturned." Based on this
argument, trial counsel successfully sought jury instructions as
to both third-party culprit and Bowden defenses. The jury were
instructed that they could consider law enforcement's failure to
investigate leads or perform tests in evaluating the defendant's
guilt or innocence. The jury were also told that they may
substantively consider evidence about Rodriguez in evaluating
whether another person committed the murder.
c. Verdict. After hearing all the evidence, the jury
convicted the defendant of murder in the first degree on
theories of deliberate premeditation, extreme atrocity or
cruelty, and felony-murder.
2. Discussion. a. Ineffective assistance of counsel.
The defendant contends that the judge erred in denying her
motion for a new trial because she received ineffective 15
assistance of counsel when trial counsel failed to call a cell
phone expert to testify at trial. Specifically, the defendant
alleges that an expert would have testified that the defendant
was traveling throughout Worcester on the night of the killing
and was rarely connected to cell towers near Southgate. She
argues this evidence would have demonstrated to the jury that
she could not have committed the murder and then cleaned up
afterwards.
In support of her motion for a new trial, the defendant
submitted an affidavit by a cell phone expert retained
postconviction. In the affidavit, the defendant's expert
described his review of the defendant's cell site location
information (CSLI) records from July 23, 2009, at 7 A.M. to July
24, 2009, at 6 A.M. The expert stated that there were two cell
towers near Southgate to which the defendant's cell phone
connected during this period: one near Holy Cross College (Holy
Cross tower) and one near Main Street (Main Street tower).
According to the expert, the defendant's cell phone connected to
the Holy Cross tower on July 23 at 1:30 P.M. and then 8:59 P.M.
The defendant's cell phone connected to the Main Street tower at
7:49 P.M. that same day. The defense expert also noted that the
defendant's cell phone connected to a tower on the other side of
Interstate Route 290 (Oak Hill tower) from Southgate on July 23
at 10:42 P.M. and on July 24 at 4:06 A.M. Finally, the expert 16
explained that there were no records in the early morning of
July 24, meaning that it was "impossible" to know where the cell
phone was located at the time.
In opposition to the defendant's motion for a new trial,
the Commonwealth filed an affidavit by its own expert about the
CSLI data and the analysis of the defendant's expert. The
Commonwealth's expert agreed that there was no location data on
July 24 from approximately 12 A.M. to 2 A.M. or from
approximately 4 A.M. to 6 A.M., and that it was therefore
impossible to know where the defendant's cell phone was located
during these hours. The Commonwealth's expert, however,
disagreed about connections to the Holy Cross tower, finding
additional connection times on July 23 at 8:24 P.M., 8:58 P.M.,
and 8:50 P.M. The Commonwealth's expert also disagreed with the
defendant's expert's description of the distance between
Southgate and the Oak Hill tower on the other side of Interstate
Route 290. According to the Commonwealth's expert, a cell phone
does not always connect to the closest cell tower, meaning that
the distance of a cell tower is not always determinative of the
cell phone's location. He opined that it was possible that the
defendant's cell phone was connected to the Oak Hill tower while
she was located at Southgate. Finally, the Commonwealth's
expert stated that, during a review of the victim's cell phone
records, three calls were made on July 24 (at 5:16 A.M., 7:25 17
A.M., and 7:32 A.M.) using the "*67" prefix, which prevents the
recipient of the call from viewing the outgoing telephone
number. The first call was made to Kevin Dion's telephone and
the last two calls were made to the defendant's cell phone.
The defendant also submitted an affidavit from trial
counsel. Trial counsel stated that he considered calling a cell
phone expert to testify, but decided not to because he believed
the third-party culprit and Bowden defenses were so strong.
Trial counsel further noted that the defendant, in her
affidavit, did not dispute that she was at the victim's
apartment on the night of the killing. The judge held an
evidentiary hearing limited to the defendant's other claim of
ineffective assistance of counsel.4 See note 1, supra. Although
4 To the extent that the defendant suggests that the judge was required to hold an evidentiary hearing on the issue of trial counsel's failure to call a cell phone expert, we disagree. A judge may rule on a motion for a new trial without a further evidentiary hearing "if no substantial issue is raised by the motion or affidavits." Commonwealth v. Upton, 484 Mass. 155, 161 (2020), quoting Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004). For an issue to be substantial, "the defendant's submissions need not prove the [motion's] factual premise . . . but they must contain sufficient credible information to cast doubt on the issue" (quotation and citation omitted). Upton, supra at 162. Where the motion judge was also the trial judge, the judge may use his or her "knowledge and evaluation of the evidence at trial" to "consider whether holding a hearing will add anything to the credibility or materiality of the affidavits submitted" (quotation and citations omitted). Id. We discern no abuse of discretion in the judge's decision not to hold an evidentiary hearing on the issue of trial counsel's failure to call a cell phone expert. As discussed supra, the defendant's and the Commonwealth's 18
trial counsel testified at that hearing, he did not testify
about his decision not to call a cell phone expert. Following
the hearing, the judge denied the defendant's motion for a new
trial, finding that trial counsel's failure to call a cell phone
expert was not ineffective assistance.
Absent a constitutional error, we review the denial of a
motion for a new trial for an abuse of discretion. Commonwealth
v. Kolenovic, 471 Mass. 664, 672 (2015), S.C., 478 Mass. 189
(2017). See Commonwealth v. Upton, 484 Mass. 155, 162 (2020)
(abuse of discretion standard applied where judge denied motion
for new trial without holding evidentiary hearing). Where the
motion judge was also the trial judge, "we give 'special
deference' to the judge's findings of fact and the ultimate
decision on the motion." Kolenovic, supra at 672-673, quoting
Commonwealth v. Lane, 462 Mass. 591, 597 (2012). The judge has
the discretion to weigh the credibility and import of affidavits
submitted in support of a motion for a new trial. Commonwealth
v. Grace, 370 Mass. 746, 751-752 (1976). The judge's findings,
experts were largely in agreement. Additionally, the judge oversaw the trial and was thus intimately familiar with the Commonwealth's case and any potential defenses. An evidentiary hearing on this point would add nothing to aid the judge in assessing the strength of the defendant's claim. See Goodreau, supra at 348-349 ("If the theory of the motion, as presented by the papers, is not credible or not persuasive, holding an evidentiary hearing to have the witnesses repeat the same evidence . . . will accomplish nothing"). 19
therefore, will be accepted if supported by the record.
Commonwealth v. Walker, 443 Mass. 213, 224 (2005).
When a claim of ineffective assistance of counsel is
brought on an appeal from a conviction of murder in the first
degree, we first examine whether there has been a "serious
failure by trial counsel." Commonwealth v. Tolan, 453 Mass.
634, 645 (2009), quoting Commonwealth v. Harbin, 435 Mass. 654,
656 (2002). We then consider whether that failure resulted in a
substantial likelihood of a miscarriage of justice. Tolan,
supra. Under this standard, we must ask whether the error "was
likely to have influenced the jury's conclusion." Walker, 443
Mass. at 225, quoting Commonwealth v. Wright, 411 Mass. 678, 682
(1992), S.C., 469 Mass. 447 (2014).
Strategic or tactical decisions by trial counsel will only
be considered ineffective if they were manifestly unreasonable
at the time made. Commonwealth v. Ayala, 481 Mass. 46, 62
(2018). "The decision to call, or not to call, an expert
witness fits squarely within the realm of strategic or tactical
decisions." Id. at 63. Such a decision is only manifestly
unreasonable if it is one that "lawyers of ordinary training and
skill in criminal law would not consider competent" (citation
omitted). Id. at 62. When assessing trial counsel's decisions,
"reasonableness does not demand perfection. . . . Nor is 20
reasonableness informed by what hindsight may reveal as a
superior or better strategy." Kolenovic, 471 Mass. at 674.
Trial counsel's decision not to call a cell phone expert
was not ineffective assistance because the decision was not
manifestly unreasonable at the time it was made. At the time
trial counsel decided not to call a cell phone expert, the
defendant had viable defenses based on evidence of third-party
culprits and law enforcement's failure to investigate. This
evidence was used to show that others were at the victim's
apartment at the time of the killing, and that the defendant
could not have both committed the murder and cleaned up
afterwards. Trial counsel forcefully argued as much during his
closing argument. An expert may have been able to provide some
limited evidence that would help corroborate the defendant's
case, but we do not assess trial counsel's decision from the
benefit of hindsight. See Kolenovic, 471 Mass. at 674 (our
review "limits the effect of hindsight by requiring a focus on
the point in time when counsel made the challenged strategic
decision"). Additionally, trial counsel was aware that CSLI
records could also corroborate the Commonwealth's case that the
defendant was at the victim's apartment. We cannot say it was
manifestly unreasonable for trial counsel to choose not to get
into the weeds of the defendant's comings and goings, especially
where he believed that the other defenses were more persuasive. 21
See Ayala, 481 Mass. at 63-65 (not manifestly unreasonable for
trial counsel to fail to call eyewitness identification expert
where trial counsel "vigorously challenged" identification
through other means). There was no error by trial counsel.
We also conclude that the expert testimony, had it been
presented, would not likely have influenced the jury's result.
Contrary to the defendant's contentions, her cell phone expert's
affidavit does not prove that she was somewhere else at the time
of the murder. Rather, the expert noted that the defendant's
only connections to a cell tower between July 23 at 10:42 P.M.
and July 24 at 4:06 A.M. were to the Oak Hill tower, which he
suggested was far from Southgate. But as the Commonwealth's
cell phone expert noted, a cell phone does not always connect to
the closest tower. The defendant's expert thus could not have
conclusively placed her far from Southgate on the night of the
killing. Additionally, the defendant's expert noted several
significant gaps in cell phone activity during those critical
hours of the night. In contrast, the Commonwealth's expert
found records of calls placed through the victim's cell phone
during these gaps, including a telephone call at 5:16 A.M. on
July 24, which Dion claimed was a call from the defendant, not
the victim, as the victim had never called him before. The CSLI
records, therefore, weakly supported the defendant's case, while
also corroborating parts of the Commonwealth's case. We cannot 22
say that in these circumstances the expert's testimony about the
defendant's cell phone location would have influenced the jury's
conclusion. See Commonwealth v. Kirkland, 491 Mass. 339, 350-
351 (2023) (any error in failing to call barber experts to
contradict identifications of defendant based on hairstyle was
unlikely to influence jury's conclusion where experts could not
conclusively rule out that defendant possessed such hairstyle).
See also Commonwealth v. Moore, 489 Mass. 735, 747-748 (2022)
(trial counsel not ineffective for failing to use defendant's
CSLI data to cast doubt on testimony placing defendant at
killings where data did not conclusively show defendant was
elsewhere and was "arguably inculpatory"); Commonwealth v.
Gonzalez, 443 Mass. 799, 811 (2005) (trial counsel's failure to
call expert to testify that victim's wounds were caused by
right-handed assailant was not ineffective where "claim is
entirely speculative" and "no evidence or affidavit indicat[es]
that an expert could make such a determination").
We therefore hold that trial counsel was not ineffective in
failing to call a cell phone expert. Accordingly, it was not an
abuse of discretion for the judge to deny the defendant's motion
for a new trial.
b. Felony-murder conviction. At trial, the Commonwealth
sought to convict the defendant of murder in the first degree
under several theories, including felony-murder with a predicate 23
felony of aggravated kidnapping, in violation of G. L. c. 265,
§ 26 (§ 26). After significant debate between the parties, the
judge instructed the jury on felony-murder and the jury returned
a verdict of guilty on this theory.
Following her conviction, the defendant filed a motion for
a new trial that included a request for entry of a finding of
not guilty pursuant to Mass. R. Crim. P. 25 (b) (2), as amended,
420 Mass. 1502 (1995), without specifying the grounds on which
such relief was warranted. The judge allowed the defendant's
motion as to the conviction of murder in the first degree on a
theory of felony-murder. The judge concluded that the evidence
at trial failed to prove that the defendant inflicted serious
bodily injury on the baby, as required by § 26. The
Commonwealth now appeals.
Our review of the judge's ruling on the motion for a
required finding of not guilty is a question of law. See
Commonwealth v. Doucette, 408 Mass. 454, 456 (1990). The
question before us, as it was for the judge, is "whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt"
(emphasis in original). Id., quoting Commonwealth v. Latimore,
378 Mass. 671, 677 (1979). A conviction may be sufficient where
it is based on "circumstantial evidence and inferences drawn 24
therefrom," so long as the inferences are "reasonable and
possible" (citation omitted). Commonwealth v. Trotto, 487 Mass.
708, 716 (2021). Although inferences "need not be necessary or
inescapable," a conviction "may not rest on the piling of
inference upon inference or on conjecture and speculation"
(quotation and citations omitted). Id.
To convict the defendant on the theory of felony-murder,
the Commonwealth was required to prove beyond a reasonable doubt
that the defendant committed the homicide while engaged in the
commission of aggravated kidnapping. See Commonwealth v.
Matchett, 386 Mass. 492, 502 (1982). See also Commonwealth v.
Fredette, 480 Mass. 75, 86 (2018) (aggravated kidnapping may
serve as predicate felony for felony-murder conviction without
violating merger doctrine). Aggravated kidnapping, in turn,
required that the Commonwealth prove that the defendant
kidnapped the baby "while armed with a dangerous weapon and
inflict[ed] serious bodily injury thereby upon [the baby]."
G. L. c. 265, § 26, third par. Section 26 defines "serious
bodily injury" as "bodily injury which results in a permanent
disfigurement, protracted loss or impairment of a bodily
function, limb or organ or substantial risk of death." Id.
The judge found, and the defendant urges on appeal, that
there was insufficient evidence to prove serious bodily injury
to the baby. The judge reasoned that there were no visible 25
signs of injury or trauma to the baby. Although a medical
expert testified about the effects of the injuries to the victim
on the baby and the effects of removal of the baby from the
victim, the judge found that the alleged injury to the baby
rested on knowledge outside the jury's expertise. Additional
expert testimony, according to the judge and the defendant, was
required for the Commonwealth to prove aggravated kidnapping
beyond a reasonable doubt.
The judge and the defendant correctly note that a
conviction may not rest on conjecture or speculation. See
Trotto, 487 Mass. at 716. Accordingly, expert testimony is
needed where an issue is outside the general knowledge and
experience of the jury. Commonwealth v. Scott, 464 Mass. 355,
364 & n.9 (2013). In Scott, we concluded that the Commonwealth
would not be able to meet its burden of proof as to the severity
of an injury merely through medical records containing technical
terminology, because such terminology was not in the jury's
common knowledge or experience. Id. at 363-364.
This case, however, is unlike Scott. Viewing the evidence
in the light most favorable to the Commonwealth, the
Commonwealth did not need additional testimony to establish that
there was both a bodily injury to the baby and that this injury
created a substantial risk of death. The victim, who was the
mother of the baby, was killed, and the baby was removed from 26
the victim's womb, along with all of the victim's reproductive
organs, by someone without medical training.5 This was done at
the crime scene itself, and obviously not in a sterile
environment.
The jury received evidence of the significant injuries to
the victim, including fatal blunt force trauma to her head,
asphyxia by ligature strangulation, and incision of her abdomen.
The Commonwealth's expert in obstetrics testified that the death
of a mother would create a loss of blood flow and oxygen to the
fetus. The jury were also told that the longer this loss
continues, the more harm and danger there would be to the baby.
We conclude that the loss of blood and oxygen, caused by the
killing of the mother, presents a bodily injury to the fetus.
Indeed, we have previously recognized, in other contexts, the
effects to a fetus of injuries to the mother. See, e.g.,
Commonwealth v. Ronchi, 491 Mass. 284, 296 (2023) (holding that
injuries need not be inflicted directly on viable fetus for
defendant to be criminally liable for death of fetus);
Commonwealth v. Cass, 392 Mass. 799, 806-807 (1984) (for
5 As part of her third-party culprit defense, the defendant suggests that Rodriguez had the medical knowledge to remove the baby because he was a personal care assistant for an elderly person. Nothing about being a personal care assistant for an elderly person suggests Rodriguez had the necessary medical training. 27
purposes of vehicular homicide statute, recognizing that
infliction of injuries upon mother that results in death of
viable fetus is homicide). With the obstetrician's expert
testimony, the jury could reasonably infer that the injuries to
the victim also inflicted bodily injury on the baby. See
Trotto, 487 Mass. at 716 (jury permitted to draw "reasonable and
possible" inferences from circumstantial evidence [citation
omitted]). This inference did not require knowledge or
experience outside that of the jury's or beyond that established
through testimony.
Likewise, the jury could reasonably conclude that the
inflicted bodily injury created a substantial risk of death. As
explained above, the Commonwealth's expert obstetrician
testified that the loss of a mother's heartbeat creates
significant dangers to a fetus. He explained that the fetus
then loses blood, and therefore oxygen, needed to survive. He
further explained that there is a narrow window of time during
which the fetus can be removed from the mother's body before the
fetus will also die. Additionally, the forcible removal of the
baby from the mother was not performed according to recognized
medical procedures, such as a cesarean section. Nor was it
performed by a trained professional in a sterile environment.
Rather, it was performed by the victim's murderer at a crime
scene. The jury did not need additional expert testimony to 28
conclude that such actions would create significant risks to the
baby, including a risk of death. The jury could use their
common sense to draw such a conclusion.
The Commonwealth thus presented sufficient evidence at
trial that the defendant inflicted serious bodily injury upon
the baby during the commission of the kidnapping. A "rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Doucette, 408 Mass. at 456,
quoting Latimore, 378 Mass. at 677. We therefore reverse the
order allowing the defendant's motion for a required finding of
not guilty and reinstate her conviction of murder in the first
degree on a theory of felony-murder.
c. Relief pursuant to G. L. c. 278, § 33E. Finally, the
defendant asks that we exercise our powers under § 33E to reduce
the verdict to a lesser degree of guilt. The defendant proposes
several bases upon which we may choose to exercise this
extraordinary relief: (1) that the defendant was suffering from
postpartum depression and psychosis at the time of the murder,
which contributed to her decision to take the baby; (2) that
Rodriguez had a stronger motive for killing the victim than the
defendant; (3) that the victim's murder was more consistent with
Rodriguez's past actions than with the defendant's; (4) that
multiple men were present at the victim's apartment between the
night the victim was murdered and the day her body was 29
discovered; (5) that law enforcement's investigation was
inadequate and failed to uncover evidence inculpating Rodriguez;
(6) that Rodriguez's actions after the murder suggested he was
guilty; (7) that the defendant could not have been involved in
the extensive clean-up following the killing; (8) that the
defendant's cell phone records indicated that she was not near
the crime scene; (9) that Rodriguez, as a personal care
assistant, could have had the skills to remove the baby; and
(10) that the defendant and the victim were friends with no
animosity between them.
"This court has used its extraordinary authority pursuant
to § 33E sparingly and with restraint, reducing convictions only
in the most compelling circumstances" (quotations and citation
omitted). Commonwealth v. Yat Fung Ng, 491 Mass. 247, 272
(2023). Such relief is only warranted if, after review of the
entire case and considering "a broad range of factors," we
conclude that the defendant's "conviction of murder in the first
degree was a miscarriage of justice that warrants a reduction in
the degree of guilt." Id., quoting Commonwealth v. Concepcion,
487 Mass. 77, 94, cert. denied, 142 S. Ct. 408 (2021). "In
exercising our powers under . . . § 33E, we do not act as a
second jury." Commonwealth v. Sawyer, 389 Mass. 686, 704
(1983). 30
In her request for relief under § 33E, the defendant raises
many issues that were presented at trial and argued to the jury.
As discussed supra, the defendant successfully introduced
evidence suggesting that Rodriguez was a violent man with a
motive to kill the victim. The defendant argued at trial that
Rodriguez's failure to inquire about the status of the baby when
questioned by the police indicated that he already knew what
happened to her. The jury heard about Rodriguez's actions
around the date of the murder, including his walking from the
cemetery. The jury also heard evidence that several men were
seen at the victim's apartment, including one man seen climbing
through the victim's window. The victim's neighbor also
testified about her interactions with one of the men who
appeared nervous. Additionally, the jury heard extensive
testimony about law enforcement's failure to thoroughly inquire
into each of these leads, to investigate Rodriguez, or to test
evidence at the victim's apartment. Finally, the defendant
argued that she could not have possibly committed the murder and
then cleaned up the evidence. There was, however, also
overwhelming evidence of the defendant's own involvement in the
murder of the victim, which we have described supra.
The jury returned a verdict of guilty on all three theories
of murder, even after being presented with well-developed third-
party culprit and Bowden defenses. The jury were also properly 31
instructed to consider both defenses. "[Because] the issue of
the defendant's criminal responsibility was fully and fairly
before the jury, . . . justice does not require that their
verdict be disturbed." Commonwealth v. Lunde, 390 Mass. 42, 50
(1983).
On appeal, the defendant only raises three issues for our
consideration that were not considered by the jury: that cell
phone records indicated she was not present at the crime scene,
that she was suffering from mental illness, and that she had no
animosity toward the victim. We have already considered the
first of these issues supra and determined that the records do
not exculpate the defendant. We do not believe either of the
other two bases warrants a reduction in the jury's verdict.
At her motion for a new trial, the defendant alleged
counsel was ineffective for failing to call a psychiatric expert
to testify about her mental illness at the time of the killing.
While the defendant does not renew this argument on appeal, she
urges us to consider evidence presented to the judge about her
mental state. Specifically, the defendant submitted with her
motion two affidavits from an expert in psychiatry who had
reviewed the defendant's medical and psychiatric records. The
expert opined that it was "probable" the defendant was suffering
from postpartum depression and anxiety at the time of the
murder. The expert also noted that the defendant was at risk 32
for postpartum psychosis, based upon a history of psychiatric
symptoms during pregnancy. It was the expert's opinion that
such mental illnesses "could have caused a delusional belief
that keeping the victim's baby was appropriate and ethical."
Importantly, the expert's opinion only focused on the
defendant's actions in taking the baby, not in committing
murder. More specifically, the expert referred to the defendant
as "taking the baby that was given to her and in believing that
she could and should keep the baby as her own." The expert did
not specifically address whether such postpartum psychosis could
cause the defendant to murder the victim, including in the cruel
and atrocious manner that it occurred here.
We have previously found a reduction in a jury's verdict to
be more consonant with justice in cases involving a defendant
with an impaired mental condition. See, e.g., Commonwealth v.
Dowds, 483 Mass. 498, 512-513 (2019); Commonwealth v. Colleran,
452 Mass. 417, 432-434 (2008). In Colleran, supra at 432, we
reasoned that a defendant's mental illness "bears on the
specific intent required for murder in the first degree based on
deliberate premeditation." We also reasoned that where a
defendant's conduct was "driven by her mental condition," the
killing was not committed in a manner "that judges and juries
generally consider extremely atrocious or cruel." Id. at 434.
In Colleran, the defendant had impulsively murdered her own 33
child while experiencing profound depression and psychosis. Id.
at 420-422. An expert in forensic psychiatry testified that the
defendant's mental illness would typically make a person
"commit[] acts profoundly contrary to the person's self-
interest," and that the illness impaired the defendant's ability
to conform her conduct to the requirements of the law. Id. at
422.
The defendant's mental condition in this case was not as
severe as that at issue in Colleran. Here, the defendant's
expert could only opine that she was probably suffering from
some form of postpartum depression and was at risk of postpartum
psychosis. As stated above, the expert did not address the
relationship of postpartum depression or the risk of psychosis
to the murder, as opposed to taking the baby. Furthermore,
nothing in the expert's affidavits suggest that the defendant
was incapable of forming the specific intent necessary for
deliberate premeditation, or that the defendant's actions were
so impulsive that they could not be considered extremely
atrocious or cruel. See Commonwealth v. Whitaker, 460 Mass.
409, 421 (2011) ("The defendant's psychological diagnosis, while
significant, does not reach this level of severity, and there is
no evidence that it was intertwined with the victim's killing").
The crime, as evidenced by the photographic exhibits, was
atrocious and cruel. Also absent in the expert's affidavits are 34
any indications that the defendant lacked the capacity to
conform her conduct to the requirements of the law or appreciate
the wrongfulness of murdering an innocent victim to take her
baby. See Colleran, 452 Mass. at 427, quoting Commonwealth v.
McHoul, 352 Mass. 544, 547 (1967) (articulating McHoul standard
for lack of criminal responsibility).
Moreover, the defendant could have raised a mental
impairment claim at trial. Trial counsel discussed the
possibility of doing so with the defendant, who was deeply
involved in the development of her case. The defendant,
however, adamantly protested raising a mental impairment defense
because she did not want to admit to any wrongdoing. Thus, not
only was there a dearth of evidence indicating that her alleged
mental impairment contributed to the commission of the murder,
but also the defendant rejected that claim herself. On these
facts, we cannot conclude that the defendant's conviction was a
miscarriage of justice.
Finally, the defendant asks that we take into consideration
that she and the victim were friends and that there was no
evidence of animosity between them. Indeed, in Colleran, 452
Mass. at 431, we noted that a lack of animosity may be a factor
to consider in our review. In Commonwealth v. Jones, 366 Mass.
805, 808-809 (1975), we reduced the defendant's conviction to
manslaughter where "there was no evidence that [the defendant 35
and the victim] had had prior trouble." That factor, however,
weighed in our analysis of whether the defendant possessed the
requisite malice for a conviction of murder in the second
degree. Id. at 809. The fact that the defendant and the victim
were acquaintances with no animosity supported a conclusion that
the killing was done "in the heat of sudden affray or combat"
(citation omitted). Id. The same cannot be said here. The
jury heard evidence that the victim and the defendant were not
friends. The jury also heard evidence suggesting that the
defendant thoughtfully planned the murder in order to possess
the victim's baby. This was not a case in which the lack of
animosity negated the essential elements of the defendant's
conviction.
For the foregoing reasons, and after reviewing the entire
record, we decline to exercise our powers under § 33E.
3. Conclusion. We hold that the defendant's trial counsel
was not ineffective for failing to call a cell phone expert to
testify about the location of the defendant's cell phone, where
the decision was reasonably made and the evidence would not have
affected the jury's conclusion. We therefore affirm the order
denying the defendant's motion for a new trial. We reverse,
however, the order entering a required finding of not guilty on
the defendant's conviction of murder in the first degree on the
theory of felony-murder. The evidence was sufficient for a fact 36
finder to conclude that the defendant committed aggravated
robbery beyond a reasonable doubt. We thus reinstate the
defendant's conviction of murder in the first degree on a theory
of felony-murder. Finally, finding no reason to exercise our
extraordinary powers pursuant to § 33E, we decline to disturb
the jury's verdict in this case.
So ordered.