Commonwealth v. Erdely

713 N.E.2d 965, 430 Mass. 149, 1999 Mass. LEXIS 551
CourtMassachusetts Supreme Judicial Court
DecidedAugust 3, 1999
StatusPublished
Cited by14 cases

This text of 713 N.E.2d 965 (Commonwealth v. Erdely) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Erdely, 713 N.E.2d 965, 430 Mass. 149, 1999 Mass. LEXIS 551 (Mass. 1999).

Opinion

Wilkins, C.J.

The defendant was convicted of murder in the first degree of an eighty-six year old woman in her Chicopee home on December 15, 1994. The jury found that the defendant had acted with deliberate premeditation and that he was guilty [150]*150of felony-murder. He was also convicted of armed robbery and armed home invasion. We affirm the convictions.

The jury could have found the following. The defendant knew that the victim, a great-aunt of the defendant’s then girl friend, kept cash in her pocketbook beside her day bed upon which she slept. The defendant, carrying a knife, broke into the victim’s home through a bathroom window, seeking money to pay his rent. When he bumped into chimes, he woke up the victim. She saw the defendant and started screaming. The defendant put his hand over her mouth and fatally stabbed her in the chest. He took the victim’s wallet and other items.

The defendant’s convictions are here on direct review. He also has appealed from the denial of his motion for a new trial and additionally challenges the denial of his request for funds for experts to assist him in presenting his motion for a new trial. All the defendant’s appellate arguments, except his concern over the denial of funds for experts, involve alleged errors apparent on the record of his direct appeal. None of those alleged errors was the subject of an objection. The trial judge could appropriately have declined to deal with those issues, leaving them for review by this court in the defendant’s direct appeal. The judge chose, however, to consider each alleged error,' as was his right, and he did so fully and correctly, denying the new trial motion. Because the judge considered those issues on the merits, this court must treat them as if fully preserved for appellate review. Commonwealth v. Hallet, 427 Mass. 552, 554 (1998).1 We conclude that there was no reversible error in the defendant’s trial, that he was not entitled to funds for an expert, and that there is no basis for granting him relief pursuant to G. L. c. 278, § 33E.

1. The defendant challenges the admission of an incriminating statement attributed to Myia Ortell, a grandniece of the victim and the defendant’s former girl friend. Richard Kopeski, a Chicopee police officer, participated with State Trooper Christopher Wilcox in an interview of the defendant at the Chi-copee police station shortly after the killing. The defendant first made a largely exculpatory statement. Later, confronted with claims that his statement was inconsistent with facts known to [151]*151the police, the defendant made a second and highly incriminating statement.

The defendant claimed at trial that the second statement to the police was the result of coercion. According to the defendant, the police threatened to implicate Ortell if he did not confess. Defense counsel brought out on cross-examination of Officer Kopeski that, during the interview that led to the defendant’s second statement, the defendant had asked to talk with Ortell. Lieutenant Higgins, who was in charge of the investigation, denied the request and told the defendant that Or-tell did not want to talk to him.

On redirect examination of Kopeski, in order to dispel any impression that the police coerced the defendant’s inculpatory statement, the prosecutor returned to the defendant’s request to see Myia Ortell. The following occurred: The prosecutor: “And at some point he also wanted to see ... his girlfriend?” The witness: “Yes, he did.” The prosecutor: “Now, when he wanted to do that, what did you do?” The witness: “When he requested to see [his girl friend], Trooper Wilcox left the room, told me he was going to ask Lieutenant Higgins. I remained in the room. Trooper Wilcox came back in the room with Lieutenant Higgins.” The prosecutor: “And what did Lieutenant Higgins say at that point?” The witness: “Lieutenant Higgins told [the defendant] he could not see [his girl friend]. That she did not want to see him. She believed he was responsible” (emphasis supplied). Defense counsel did not move to strike the statement that Ortell believed that the defendant was responsible.

Ortell’s statement concerning the defendant’s responsibility for the crime was inadmissible opinion evidence and was also hearsay inadmissible to prove its truth. See Commonwealth v. Lennon, 399 Mass. 443, 445 (1987). The fact that Ortell did not want to see the defendant sufficiently explained why the police did not permit the defendant to talk with her and tended to dispel any claim of police coercion. That statement was admissible for that limited purpose. See Commonwealth v. Miller, 361 Mass. 644, 659 (1972). A limiting instruction, if requested, would have been appropriate. See Commonwealth v. Roberts, 378 Mass. 116, 126 (1979).

The statement that Ortell had said that she did not want to see the defendant because she believed the defendant was responsible was prejudicial and not necessary to any aspect of the Commonwealth’s case. Once that statement was out, defense [152]*152counsel may well have concluded that a motion to strike the statement would only focus the jury’s attention on it.

It was apparent from Ortell’s testimony that her opinion was not the product of personal knowledge. The prosecutor did not thereafter rely on Ortell’s statement to Lieutenant Higgins. Cf. Commonwealth v. Martin, 417 Mass. 187, 189-191 (1994) (testimony of defendant’s girl friend that she suspected defendant committed crime constituted prejudicial error particularly because prosecutor stressed the testimony during his closing argument). These circumstances and the powerful evidence of the defendant’s guilt assure us that the admission of this brief statement and counsel’s failure to seek remedial action concerning it did not significantly prejudice the defendant or affect the jury’s verdicts.

2. The judge’s instruction on reasonable doubt was adequate. It would have been better if he had not referred to the civil preponderance of the evidence standard. See Commonwealth v. Payne, 426 Mass. 692, 699 n.7 (1998). Considering the charge as a whole, as we must, the judge’s instructions fully conveyed the principles of reasonable doubt. See Commonwealth v. Watkins, 425 Mass. 830, 838-839 (1997); Commonwealth v. Crawford, 417 Mass. 358, 367-368 (1994).

3. The defendant was not entitled to a voluntary intoxication instruction. The evidence did not warrant one. “Voluntary intoxication instructions are not required where the evidence does not suggest a condition of ‘debilitating intoxication’ that could support a reasonable doubt as to whether a defendant was capable of forming the requisite criminal intent.” Commonwealth v. James, 424 Mass. 770, 789 (1997), and cases cited. The defendant testified that, on the night of the killing, he had drunk two and one-half glasses of beer before he went to a local bar, that he was not under the influence of alcohol, and that he was “absolutely clear headed.” According to the defendant, he took only two sips of beer at the bar and then took a taxicab home. On cross-examination, the defendant stated again that he was sober on the night in question. William Chil-son testified that the defendant did not appear intoxicated at 12:15 or 12:20 a.m. when he dropped the defendant off near the victim’s residence.

The defendant contended that he did not commit the crimes.

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Bluebook (online)
713 N.E.2d 965, 430 Mass. 149, 1999 Mass. LEXIS 551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-erdely-mass-1999.