Commonwealth v. McMahon

822 N.E.2d 699, 443 Mass. 409, 2005 Mass. LEXIS 15
CourtMassachusetts Supreme Judicial Court
DecidedFebruary 11, 2005
StatusPublished
Cited by16 cases

This text of 822 N.E.2d 699 (Commonwealth v. McMahon) 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. McMahon, 822 N.E.2d 699, 443 Mass. 409, 2005 Mass. LEXIS 15 (Mass. 2005).

Opinion

Sosman, J.

The defendant was convicted of murder in the first degree for the shooting death of James Pierce. His motion for a new trial, alleging that he had been incompetent to stand trial and had been denied the effective assistance of counsel, was denied after an evidentiary hearing. His appeal from the denial of that motion was consolidated with his direct appeal. On appeal, the defendant contends that (1) the evidence was insufficient to establish deliberate premeditation (the only theory of murder in the first degree submitted to the jury); (2) the judge’s instructions erroneously defined malice; (3) the prosecutor’s closing argument misstated the evidence and improperly commented on the defendant’s decision not to testify; (4) his motion for a new trial should have been allowed, as he had become incompetent to stand trial by the time he had to decide whether to testify; and (5) his attorney rendered ineffective assistance with respect to the defendant’s claimed lack of competency and his decision not to testify, and with respect to his opening statement (during which counsel told the jury that the defendant would testify to a version of the killing that inculpated the Commonwealth’s immunized witness). He also asks that we exercise our authority under G. L. c. 278, § 33E, to grant a new trial. For the following reasons, we affirm the conviction, affirm the order denying the defendant’s motion for a new trial, and decline to grant relief under G. L. c. 278, § 33E.

1. Facts, a. Evidence at trial. We summarize the trial evidence in the light most favorable to the Commonwealth. The victim, James Pierce, was a regular customer at a bar in Malden known as the R & R Lounge (R & R), owned by the family of Dennis Trodden. Pierce and Trodden had been friends for many years, and Trodden was godfather to Pierce’s daughter. The defendant also frequented the R & R, and spent time there with both Pierce and Trodden. On September 14, 1993, Pierce engaged in a brief “beer brawl” with another customer, Dennis Alera, resulting in Pierce being cut on the face and Alera being ejected from the bar. Such altercations were not uncommon at the R & R, but had never resulted in any legal trouble for the bar or [411]*411the Trodden family. Concerned about medical bills and possible scarring on his face, Pierce filed a criminal complaint against Alera in the wake of the September 14 incident. Alera, who worked as a fire fighter, wanted the charges dropped. Members of the Trodden family, who worked at the bar and knew both men, were encouraging Pierce to settle his dispute with Alera, and Pierce ultimately told Dennis Trodden that he would do so.

On October 4, 1993, the defendant and Dennis Trodden spent the evening drinking at the R & R, then went across the street to the Kohala Restaurant. Pierce was also at the R & R that night. At around midnight, Pierce went over to the Kohala Restaurant, where he spoke briefly with the defendant outside of Trodden’s hearing, and then returned to the R & R. At closing time, around 1:30 a.m., Pierce left the bar and drove off in his own vehicle heading in the direction of his home in Everett. The Kohala Restaurant was also closing, and the defendant and Trodden came out, got into the defendant’s vehicle, and began driving in the opposite direction, headed toward the defendant’s home to continue drinking. They encountered Pierce’s vehicle, and the defendant honked his horn, stopped, and invited Pierce to join them. Pierce turned his vehicle around and followed them to the defendant’s house a short distance away.

When the three were inside the defendant’s home, the defendant provided them with beer and requested that they go out on the porch, as they were being too noisy in the house (where the defendant’s wife was trying to sleep). Trodden and Pierce went out, while the defendant went into his bedroom and then joined them outside.1 The defendant, again protesting that they were being too loud, recommended that they cut through a fence in back and walk along the railroad tracks to an all-night gasoline station where they could buy cigarettes. They followed his suggestion, and the three went along the tracks, with Trodden walking slightly ahead of Pierce (who, due to a limp, walked more slowly). The defendant stopped and bent over, as if to tie his shoes, while the other two proceeded on ahead.

[412]*412Trodden suddenly heard a loud bang, covered his ears, and turned around. He saw Pierce lying face down beside the tracks. The defendant stood over Pierce, gun in hand. He leaned over, put the gun to the back of Pierce’s head, and shot him again. The defendant ordered Trodden to come over and to help him drag Pierce’s body into the bushes along the tracks. Trodden asked the defendant why he had killed Pierce. The defendant replied, “Fuck him. I never liked him anyways.” After hiding the body, the two returned to the defendant’s house, where the defendant retrieved a pair of gloves. He explained to Trodden that he did not want to leave the body by the tracks. The defendant and Trodden retrieved Pierce’s car and drove it down the tracks to the point where the body was hidden. They dragged the body out from the bushes, whereupon the defendant ordered Trodden to help him load the body into the back of the car and cover it with blankets. The defendant then drove the car, ordering Trodden (whose hands were bare) to avoid touching the door handle on the passenger side. The defendant drove to a parking lot, dropped the keys on the floor of the car, and abandoned the vehicle. He and Trodden ran back to the defendant’s house. As they entered, the defendant’s wife came out of the bedroom and, seeing their bloodstained and muddy clothes, asked them what was happening. The defendant replied, “I got rid of him. He’s gone.” The defendant fetched clean clothes for both himself and Trodden, whereupon they showered and changed. The defendant placed the bloody clothes in a trash bag. The two spent the rest of the night drinking, and then telephoned a friend for a ride to another bar the next morning. The defendant told Trodden that, if the police questioned him, he was to say that he had last seen Pierce at the restaurant the night before, and that he (Trodden) had gone home with the defendant where the two had spent an uneventful night.

The police discovered Pierce’s body the next day, and inquiries as to where he had last been seen led them to the R & R. They questioned Trodden, who answered as the defendant had instructed him. Periodically thereafter, the defendant would check with Trodden to confirm that he (Trodden) was not giving any information to the police. Trodden assured the defendant that he was sticking to the version that the defendant had outlined.

[413]*413The police also questioned the defendant, who gave them the same version as Trodden. The defendant, however, elaborated on his answers, telling the police that the victim had had “a problem” some months earlier with a man named Edward Williams, who was known to carry a gun. Professing a desire to help the police, the defendant asked for a pager number for one of the officers so he could notify him immediately if he picked up any further information at the bar. The next day, the defendant contacted the officer, and told him that he suspected that Dennis Alera might have been involved. He also told them that he was bothered by the attitude of members of the Trodden family, who seemed unconcerned about the murder but were instead concerned that the attention drawn by the investigation was hurting their “bookmaking business” at the R & R.

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Cite This Page — Counsel Stack

Bluebook (online)
822 N.E.2d 699, 443 Mass. 409, 2005 Mass. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-mcmahon-mass-2005.