NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1322
COMMONWEALTH
vs.
JOHN MICHELIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, John Michelin, was indicted for murder in
the first degree, G. L. c. 265, § 1, and assault and battery by
means of a dangerous weapon, G. L. c. 265, § 15A (b). After a
jury trial in Superior Court, he was found guilty of the lesser
included offense of involuntary manslaughter, G. L. c. 265,
§ 13.1 On appeal, the defendant claims that the motion judge
should have suppressed evidence obtained as a result of the
police's entry into the apartment and protective sweep, as well
as statements made by the defendant at a police interview
following his arrest. The defendant also claims that the trial
1A nolle prosequi entered on the charge of assault and battery by means of a dangerous weapon. judge erred by failing to give a specific unanimity instruction
and that the prosecutor made improper statements during closing
arguments. We affirm.
Background. We summarize the facts as found by the motion
judge. Just before midnight on Saturday, April 8, 2017, two
Lynn police officers were dispatched to a multiunit apartment
building in response to a 911 call. The caller, Richard
Hilliard, was standing outside, and his finger was bleeding
"from a significant cut." Hilliard, whom one of the officers
knew was a resident of apartment two in the building's basement,
told them that there had been a fight inside the apartment, that
there were three or four people inside, and that they were
involved in a gang. Hilliard said that one of the individuals
in the apartment was armed with a baseball bat and that another
had been "laid out." As one of the officers began to enter
through an exterior door leading to a foyer in the building, he
could hear at least two people grunt, one of them say, "Just
leave him here, c'mon," and then a door close. After they
entered the building's foyer, the officers saw a man lying next
to the apartment door at the bottom of the stairs. The man was
unconscious, a bloody T-shirt was pulled over his face, his
pants were around his ankles, he had apparent anal trauma, and a
2 broom was lying next to him. It appeared that his body had been
dragged from apartment two.
After the officers knocked on the door of apartment two, a
man answered and was handcuffed and removed from the apartment.
The officers entered and conducted a protective sweep of the
apartment. They encountered a woman in the bathroom and the
defendant on a bed in a bedroom, and placed both in handcuffs.
They also saw several items in plain view, including a blood-
covered rag or sheet, blood stains on the kitchen floor and
counter, a large blood stain in the living room, a blood-stained
guitar, and a blood-stained baseball bat.
With the foyer and the apartment secured by the police,
medical personnel transported the victim to the hospital. After
reading the detained individuals their Miranda rights, the
police posted a sentry at the apartment and prepared an
application for a search warrant. The police transported the
defendant to the Lynn police station, where he provided a
deoxyribonucleic acid (DNA) saliva sample and a recorded
statement. The victim died days later.
Discussion. 1. Warrantless entry into the apartment. The
defendant contends that the motion judge erred in finding that
the warrantless entry was justified by exigent circumstances and
the emergency aid doctrine, and that all evidence discovered as
3 a result of the warrantless entry and protective sweep of the
apartment should have been suppressed. "In reviewing a ruling
on a motion to suppress evidence, we accept the judge's
subsidiary findings of fact absent clear error" (citation
omitted). Commonwealth v. Daveiga, 489 Mass. 342, 346 (2022).
"We review independently the application of constitutional
principles to the facts found" (citation omitted). Id.
"A warrantless government search of a home is presumptively
unreasonable under the Fourth Amendment to the United States
Constitution and art. 14 of the Massachusetts Declaration of
Rights" (quotation and citation omitted). Commonwealth v.
Arias, 481 Mass. 604, 609 (2019). "Warrantless searches may be
justifiable, however, if the circumstances of the search fall
within an established exception to the warrant requirement."
Commonwealth v. Tuschall, 476 Mass. 581, 584 (2017).
Assuming without deciding that the defendant had an
expectation of privacy as a guest in the apartment, we agree
with the motion judge that exigent circumstances justified the
officers' warrantless entry. "[T]wo conditions must be met in
order for a nonconsensual entry to be valid under the exigent
circumstances doctrine: (1) there must be probable cause and
(2) there must be exigent circumstances" (quotations omitted).
Arias, 481 Mass. at 615, quoting Commonwealth v. DeJesus, 439
4 Mass. 616, 619 (2003). To satisfy the exigent circumstances
prong, the police must have "reasonable grounds to believe that
obtaining a warrant would be impracticable under the
circumstances because the delay in doing so would pose a
significant risk that the suspect may flee, evidence may be
destroyed, or the safety of the police or others may be
endangered." Commonwealth v. Figueroa, 468 Mass. 204, 213
(2014). "Whether exigent circumstances are found depends upon a
consideration of the totality of the circumstances as they
appeared to the officers at the time of entry." Commonwealth v.
Cataldo, 69 Mass. App. Ct. 465, 473 (2007). In this case, the
police had probable cause to believe that a serious crime of
violence had occurred in the apartment. Hilliard, himself
bleeding, told the officers that there had been a fight inside
the apartment and that one person had been "laid out" and
another had a baseball bat. After the officers gained entry to
the building foyer, they found an unconscious man who had been
brutalized and apparently dragged from the apartment. These
facts established not only probable cause to believe a crime had
occurred, but also an objectively reasonable belief that others
might still be in danger and those responsible for the violence
might flee. Moreover, the police had to secure the area to
enable medical personnel to render aid to the victim. Delaying
5 entry into the apartment in order to apply for a search warrant
could have endangered others in the apartment, delayed aid to
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1322
COMMONWEALTH
vs.
JOHN MICHELIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, John Michelin, was indicted for murder in
the first degree, G. L. c. 265, § 1, and assault and battery by
means of a dangerous weapon, G. L. c. 265, § 15A (b). After a
jury trial in Superior Court, he was found guilty of the lesser
included offense of involuntary manslaughter, G. L. c. 265,
§ 13.1 On appeal, the defendant claims that the motion judge
should have suppressed evidence obtained as a result of the
police's entry into the apartment and protective sweep, as well
as statements made by the defendant at a police interview
following his arrest. The defendant also claims that the trial
1A nolle prosequi entered on the charge of assault and battery by means of a dangerous weapon. judge erred by failing to give a specific unanimity instruction
and that the prosecutor made improper statements during closing
arguments. We affirm.
Background. We summarize the facts as found by the motion
judge. Just before midnight on Saturday, April 8, 2017, two
Lynn police officers were dispatched to a multiunit apartment
building in response to a 911 call. The caller, Richard
Hilliard, was standing outside, and his finger was bleeding
"from a significant cut." Hilliard, whom one of the officers
knew was a resident of apartment two in the building's basement,
told them that there had been a fight inside the apartment, that
there were three or four people inside, and that they were
involved in a gang. Hilliard said that one of the individuals
in the apartment was armed with a baseball bat and that another
had been "laid out." As one of the officers began to enter
through an exterior door leading to a foyer in the building, he
could hear at least two people grunt, one of them say, "Just
leave him here, c'mon," and then a door close. After they
entered the building's foyer, the officers saw a man lying next
to the apartment door at the bottom of the stairs. The man was
unconscious, a bloody T-shirt was pulled over his face, his
pants were around his ankles, he had apparent anal trauma, and a
2 broom was lying next to him. It appeared that his body had been
dragged from apartment two.
After the officers knocked on the door of apartment two, a
man answered and was handcuffed and removed from the apartment.
The officers entered and conducted a protective sweep of the
apartment. They encountered a woman in the bathroom and the
defendant on a bed in a bedroom, and placed both in handcuffs.
They also saw several items in plain view, including a blood-
covered rag or sheet, blood stains on the kitchen floor and
counter, a large blood stain in the living room, a blood-stained
guitar, and a blood-stained baseball bat.
With the foyer and the apartment secured by the police,
medical personnel transported the victim to the hospital. After
reading the detained individuals their Miranda rights, the
police posted a sentry at the apartment and prepared an
application for a search warrant. The police transported the
defendant to the Lynn police station, where he provided a
deoxyribonucleic acid (DNA) saliva sample and a recorded
statement. The victim died days later.
Discussion. 1. Warrantless entry into the apartment. The
defendant contends that the motion judge erred in finding that
the warrantless entry was justified by exigent circumstances and
the emergency aid doctrine, and that all evidence discovered as
3 a result of the warrantless entry and protective sweep of the
apartment should have been suppressed. "In reviewing a ruling
on a motion to suppress evidence, we accept the judge's
subsidiary findings of fact absent clear error" (citation
omitted). Commonwealth v. Daveiga, 489 Mass. 342, 346 (2022).
"We review independently the application of constitutional
principles to the facts found" (citation omitted). Id.
"A warrantless government search of a home is presumptively
unreasonable under the Fourth Amendment to the United States
Constitution and art. 14 of the Massachusetts Declaration of
Rights" (quotation and citation omitted). Commonwealth v.
Arias, 481 Mass. 604, 609 (2019). "Warrantless searches may be
justifiable, however, if the circumstances of the search fall
within an established exception to the warrant requirement."
Commonwealth v. Tuschall, 476 Mass. 581, 584 (2017).
Assuming without deciding that the defendant had an
expectation of privacy as a guest in the apartment, we agree
with the motion judge that exigent circumstances justified the
officers' warrantless entry. "[T]wo conditions must be met in
order for a nonconsensual entry to be valid under the exigent
circumstances doctrine: (1) there must be probable cause and
(2) there must be exigent circumstances" (quotations omitted).
Arias, 481 Mass. at 615, quoting Commonwealth v. DeJesus, 439
4 Mass. 616, 619 (2003). To satisfy the exigent circumstances
prong, the police must have "reasonable grounds to believe that
obtaining a warrant would be impracticable under the
circumstances because the delay in doing so would pose a
significant risk that the suspect may flee, evidence may be
destroyed, or the safety of the police or others may be
endangered." Commonwealth v. Figueroa, 468 Mass. 204, 213
(2014). "Whether exigent circumstances are found depends upon a
consideration of the totality of the circumstances as they
appeared to the officers at the time of entry." Commonwealth v.
Cataldo, 69 Mass. App. Ct. 465, 473 (2007). In this case, the
police had probable cause to believe that a serious crime of
violence had occurred in the apartment. Hilliard, himself
bleeding, told the officers that there had been a fight inside
the apartment and that one person had been "laid out" and
another had a baseball bat. After the officers gained entry to
the building foyer, they found an unconscious man who had been
brutalized and apparently dragged from the apartment. These
facts established not only probable cause to believe a crime had
occurred, but also an objectively reasonable belief that others
might still be in danger and those responsible for the violence
might flee. Moreover, the police had to secure the area to
enable medical personnel to render aid to the victim. Delaying
5 entry into the apartment in order to apply for a search warrant
could have endangered others in the apartment, delayed aid to
the victim, and allowed any perpetrators the time to destroy
evidence, hide, or further arm themselves against a police
entry.
For similar reasons, we agree that the warrantless entry
was also justified under the emergency aid doctrine. "Under the
emergency aid doctrine, the police 'may enter a home without a
warrant to render emergency assistance to an injured occupant or
to protect an occupant from imminent injury.'" Commonwealth v.
Regan, 104 Mass. App. Ct. 623, 627 (2024), cert. denied, U.S.
Supreme Ct., No. 24-6339 (Mar. 3, 2025), quoting Commonwealth v.
Townsend, 453 Mass. 413, 425 (2009). "In determining whether
entry is justified under the emergency aid exception, we look
solely to the objective circumstances known to the police at the
time of entry and determine whether those circumstances provide
a reasonable basis for entry." Commonwealth v. Entwistle, 463
Mass. 205, 214 (2012), cert. denied, 568 U.S. 1129 (2013).
"Because the purpose of police entry is not to investigate
criminal activity, a showing of probable cause is not necessary
to invoke the exception." Regan, supra at 628. Here, an
injured witness told the officers that there had been a fight
and someone was "laid out" in the apartment, and the officers
6 found another victim severely injured and unconscious outside
the apartment. Given these facts, the police had objectively
reasonable grounds to believe that one or more persons inside
the apartment were at risk of imminent harm or "in need of
immediate assistance." Commonwealth v. Gordon, 87 Mass. App.
Ct. 322, 329 (2015).2
2. Invocation of right to counsel. The defendant also
maintains that the motion judge erred in finding that the
defendant did not invoke his right to counsel and that the
defendant knowingly, voluntarily, and intelligently waived his
Miranda rights. We disagree. During a custodial interrogation,
"[i]f the accused indicates that he wishes to remain silent,
'the interrogation must cease.' If he requests counsel, 'the
interrogation must cease until an attorney is present.'"
Commonwealth v. Santos, 463 Mass. 273, 285 (2012), quoting
Edwards v. Arizona, 451 U.S. 477, 481 (1981). "The invocation
of the right to counsel, however, must be unambiguous."
Commonwealth v. Miller, 486 Mass. 78, 88 (2020). "'[I]f a
2 Because we conclude that the officers' warrantless entry into the apartment and protective sweep were justified under the exigent circumstances and emergency aid exceptions to the warrant requirement, we need not address the defendant's arguments that the seizure of his clothing and DNA saliva sample were fruits of the unlawful entry and search, or that the subsequently-obtained search warrant was invalid because it was based on observations made during the entry.
7 suspect makes a reference to an attorney that is ambiguous or
equivocal in that a reasonable officer in light of the
circumstances would have understood only that the suspect might
be invoking the right to counsel,' the police need not cease
their questioning." Id., quoting Davis v. United States, 512
U.S. 452, 459 (1994).
The police advised the defendant of his Miranda rights
before transporting him to the police station. See Miranda v.
Arizona, 384 U.S. 436, 444-445 (1966). At the station, a State
police trooper and a Lynn police lieutenant interviewed the
defendant for thirty-nine minutes. At the outset, the trooper
again advised the defendant of his Miranda rights and also
advised him of the right to a prompt arraignment. Regarding the
prompt arraignment, the trooper read an advisory that stated,
"At court a judge can appoint a lawyer for me if I cannot afford
one. At court a judge can decide to release me." After the
defendant expressed concerns about being late for work, the
trooper responded that even if he posted bail overnight the
defendant would have to appear in court on Monday morning. The
defendant asked, "So who's my lawyer?" The trooper answered,
"If you can't, we'll get to that, but right now, unless you have
a lawyer already set up, you don't have one. When you go to
court, they'll appoint one." The defendant responded, "Okay,"
8 and, after a further exchange about other matters, signed the
Miranda waiver and waiver of prompt arraignment. We agree with
the motion judge that, given the context in which the statement
was made, the defendant did not unequivocally invoke his right
to counsel when he asked, "So who's my lawyer?" Rather, the
defendant was referring to the right to prompt arraignment and
asking who would represent him in court on Monday morning. Nor
are we persuaded by the defendant's argument that the trooper's
statement that "you don't have" a lawyer precluded the defendant
from knowingly, intelligently, and voluntarily waiving his
Miranda rights. The trooper clearly explained to the defendant
his rights to remain silent, speak to a lawyer before answering
any questions, and stop the questioning at any time, and the
defendant acknowledged his understanding of those rights at the
interview and signed the Miranda waiver.
3. Specific unanimity instruction. The defendant contends
that the trial judge erred by failing to give a specific
unanimity instruction because the jury were presented with
evidence of two distinct and separate acts that could have
constituted the single count of murder: (1) the defendant
holding up the victim while another man struck him with a
baseball bat, and (2) the defendant's participation in the
assault of the victim with the broomstick. Because trial
9 counsel did not request such an instruction or object to it not
being given, we review to consider whether the error, if any,
created a substantial risk of a miscarriage of justice. See
Commonwealth v. Gaughan, 99 Mass. App. Ct. 74, 81 (2021).
There was no error. "[A] specific unanimity instruction
indicates to the jury that they must be unanimous as to which
specific act constitutes the offense charged." Commonwealth v.
Conefrey, 420 Mass. 508, 512 (1995), quoting Commonwealth v.
Keevan, 400 Mass. 557, 566-567 (1987). Such instruction "is
required only if the jurors could otherwise disagree which act a
defendant committed and yet convict him of the crime charged"
(citation omitted). Commonwealth v. Ramos, 31 Mass. App. Ct.
362, 366-367 (1991). "Where the Commonwealth proceeds on a
theory that the criminal act was 'a continuing course of
conduct,' however, or 'a single criminal scheme or plan carried
out consistently overtime [sic],' a specific unanimity
instruction is not required" (citation omitted). Commonwealth
v. Fan, 490 Mass. 433, 450 (2022). The murder charge brought by
the Commonwealth was based on a series of acts committed in
succession and in the same general area. Because those acts
constituted a "continuing course of conduct," no specific
unanimity instruction was required. See id; Commonwealth v.
Cyr, 433 Mass. 617, 621-624 (2001).
10 4. Closing argument. Lastly, the defendant claims that
the prosecutor made certain improper statements in his closing
argument. While the Commonwealth suggests that the defendant
did not properly object to all of these statements, we need not
decide which standard of review applies to each statement,
because none amounted to error when we consider them "in the
context of the whole argument, the evidence admitted at trial,
and the judge's instructions to the jury." Commonwealth v.
Andre, 484 Mass. 403, 417-418 (2020), quoting Commonwealth v.
Felder, 455 Mass. 359, 368 (2009). While the Commonwealth is
allowed "to argue 'forcefully for the defendant's conviction,'
closing arguments must be limited to facts in evidence and the
fair inferences that may be drawn from those facts."
Commonwealth v. Rutherford, 476 Mass. 639, 643 (2017), quoting
Commonwealth v. Wilson, 427 Mass. 336, 350 (1998).
The defendant claims that there was no basis for the
prosecutor's statement that the defendant used the guitar as a
weapon against the victim. However, both a State trooper and a
forensic scientist from the State police crime laboratory
testified that the guitar seized from the apartment had a red-
brown stain on it. The forensic scientist testified that the
stain tested positive for human blood and there was a crack on
the body of the guitar. Accordingly, it was fair to infer that
11 the guitar had been used as a weapon. The defendant also argues
that there was no evidence supporting the prosecutor's
assertions that the "murder couldn't have happened with just one
person," or that the defendant took part in the assault
involving the use of the broomstick to injure the victim's
rectum. Again, we disagree. The forensic scientist testified
that there was a red-brown stain on the top of the broom handle
that extended twelve inches down the broom, that the victim's
DNA profile matched the DNA profile of the broom stain, and that
a swab of the defendant's hands tested positive for the presence
of blood. Hilliard also testified that he saw the defendant
hold the victim while another man hit him with a baseball bat,
and one of the responding officers testified that he heard two
people exerting themselves before the officers entered the
building and found the unconscious victim lying with his pants
around his ankles and apparent anal trauma. Based on this
evidence, it was reasonable for the prosecutor to draw the
12 inference during closing argument that the defendant
participated in the assault involving the broomstick.
Judgment affirmed.
By the Court (Blake, C.J., Hodgens & Toone, JJ.3),
Clerk
Entered: May 12, 2025.
3 The panelists are listed in order of seniority.