Commonwealth v. Fernandes

766 N.E.2d 1288, 436 Mass. 671, 2002 Mass. LEXIS 282
CourtMassachusetts Supreme Judicial Court
DecidedMay 3, 2002
StatusPublished
Cited by7 cases

This text of 766 N.E.2d 1288 (Commonwealth v. Fernandes) 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. Fernandes, 766 N.E.2d 1288, 436 Mass. 671, 2002 Mass. LEXIS 282 (Mass. 2002).

Opinion

Marshall, C.J.

Following nine days of trial, a jury rejected the defendant’s claim that she lacked criminal responsibility and convicted her of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. The jury also convicted the defendant of kidnapping, arson of a dwelling,1 and five counts of assault and battery by means of a dangerous weapon.2 On appeal, the defendant contends that the prosecutor [672]*672made improper remarks during his closing argument about defense counsel and about the defendant’s expert witness. The defendant also requests that we direct the entry of a verdict of not guilty by reason of insanity, reduce the verdict to manslaughter, or order a new trial pursuant to our power under G. L. c. 278, § 33E. We affirm the convictions and decline to grant relief under G. L. c. 278, § 33E.

1. Facts. The victim was a nineteen year old woman. The jury could have found that, on the night of March 25-26, 1997, the defendant, after several days of looking for the victim and announcing that she would kill her if she found her, lured the victim from a homeless shelter in Boston to an abandoned trailer near the railroad yard on the Cambridge-Boston line. There, the defendant and two accomplices tied up the victim and, after setting the victim’s hair on fire, repeatedly and brutally tortured and assaulted her using their fists, a metal pole, the thomed stem of a rosebush, scissors, and a sledgehammer. Evidence indicated that the assailants had stomped on the victim’s face while she was still alive and that the victim begged her assailants not to kill her, to no avail. Medical experts testified concerning the smashing of the victim’s skull and face in three separate areas, fracturing all the bones of the victim’s forehead, eye orbits, and cheek bones. After ensuring that the victim was dead, the defendant set fire to the trailer and fled.

The defendant and her accomplices then stole several automobiles to create an alibi in case the police should question them concerning their whereabouts that evening. There was other evidence that the defendant systematically and coherently took steps to conceal her actions that evening and during the ensuing days.

On March 28, 1997, the police located the defendant, for whom they had been looking, believing initially that she might be the victim,3 and spoke with her at a Boston coffee shop. The defendant told the police that she had not been to the trailer [673]*673recently. She also volunteered that, on the night of the murder, she had been up all night stealing automobiles.

After further investigation, the police took the defendant into custody at 11:40 p.m., on April 6, 1997. The defendant was given Miranda warnings; at the time she spoke with police she appeared sober, rational, and lucid. The defendant confessed that she had killed the victim, describing in detail the manner and circumstances of the killing and her actions both before and after the killing. With the defendant’s consent, and after the police had repeated the Miranda warnings, a tape recording was made of her confession. It was consistent with the voluminous physical and forensic evidence introduced by the Commonwealth, and with statements the defendant made to others in the wake of the murder before her arrest.

At trial the defense was a lack of criminal responsibility based on the defendant’s drug abuse, mental illness, and history of childhood abuse by her parents. Defense counsel vigorously cross-examined the prosecution witnesses in support of the theory that the defendant was given to fantasy, had problems with reality, and frequently told lies. The jury also heard extensive evidence of the defendant’s drug and alcohol use during the month prior to the killing.

Dr. Keith Ablow, a psychiatrist, testified for the defense and opined that the defendant lacked the substantial capacity to conform her conduct to the requirements of law, and that she lacked the capacity to waive her Miranda rights. Dr. Ablow based his opinion on his diagnosis that the defendant suffers from chronic dissociative disorder, a fractured view of reality, substance abuse, and antisocial personality disorder. He also testified that the defendant suffered from auditory and visual hallucinations and that the defendant often made up stories and took blame for things for which she was not responsible as a form of escapism and empowerment — i.e., the defendant proved she existed through the reaction of others.

The prosecutor called as a rebuttal witness Dr. Malcolm P. Rogers, a psychiatrist and an expert in forensic psychiatry. Dr. Rogers opined that the defendant was criminally responsible [674]*674and that she had the ability to premeditate deliberately and form the specific intent to kill. Dr. Rogers testified that, in his opinion, the defendant suffered from an antisocial personality disorder and substance abuse disorder, but that there was no evidence that she suffered from delusions, hallucinations, or any psychotic mental disorder.

2. The prosecutor’s closing argument. The defendant contends that in his closing argument the prosecutor misstated the evidence and improperly disparaged both defense counsel and the defendant’s expert witness, Dr. Ablow. There was no objection at trial to any of the statements the defendant now challenges. We consider whether there was any error and, if so, whether a substantial likelihood of a miscarriage of justice has occurred. Commonwealth v. Cyr, 433 Mass. 617, 626 (2001).

Our review of the closing arguments of both the prosecutor and defense counsel persuades us that the prosecutor’s comments on the manner in which defense counsel marshaled the evidence during her closing argument were not improper. “Within reason, prosecutors' may be critical of the tactics utilized by trial counsel in defending a case.” Commonwealth v. Awad, 47 Mass. App. Ct. 139, 141 (1999). See Commonwealth v. Borodine, 371 Mass. 1, 11 (1976), cert. denied, 429 U.S. 1049 (1977). The prosecutor twice responded to the characterization of the evidence in defense counsel’s closing argument. He also commented on defense counsel’s offering her personal opinion to the jury, for which the judge sua sponte had admonished defense counsel during her closing argument. This is not a case in which an attorney disparaged defense counsel personally, or characterized defense counsel as obscuring the truth or intentionally misleading the jury. Cf. Clark v. Clark, 47 Mass. App. Ct. 737, 744 n.7 (1999) (characterizing opposing counsel as “shyster” and “bald-faced liar”).

The defendant also claims that the prosecutor disparaged the defendant’s expert by referring to him as “Keith Ablow,” “Mr. Ablow,” or “that fiction novelist,” rather than as “Dr. Ablow.” These were not improper remarks on Dr. Ablow’s credibility. The evidence indicated that Dr. Ablow was, in fact, a novelist, and both defense counsel and the prosecutor cross-examined the expert witnesses on their extracurricular writings. The prosecu[675]*675tor did not express his personal belief in the credibility- of the witness or intimate that he had any knowledge outside the evidence. Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989).

Nor did the prosecutor improperly argue to the jury about Dr. Ablów’s testimony concerning the circumstances of his retention as an expert witness.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Jacob A. Scott.
Massachusetts Appeals Court, 2023
Commonwealth v. Rutherford
71 N.E.3d 481 (Massachusetts Supreme Judicial Court, 2017)
Commonwealth v. Scesny
34 N.E.3d 17 (Massachusetts Supreme Judicial Court, 2015)
Commonwealth v. Berry
2 N.E.3d 177 (Massachusetts Supreme Judicial Court, 2014)
Commonwealth v. Lewis
987 N.E.2d 1218 (Massachusetts Supreme Judicial Court, 2013)
Commonwealth v. Rasmusen
830 N.E.2d 1040 (Massachusetts Supreme Judicial Court, 2005)
Commonwealth v. Zagrodny
819 N.E.2d 565 (Massachusetts Supreme Judicial Court, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
766 N.E.2d 1288, 436 Mass. 671, 2002 Mass. LEXIS 282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-fernandes-mass-2002.