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
20-P-1055
COMMONWEALTH
vs.
RICHARD DAVIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury convicted the defendant of second-degree murder on
an indictment charging him with murder in the first degree. The
victim, Kevin Crowley, and the defendant were friends and lived
next door to each other in a rooming house located in Lynn.
There was no dispute that Crowley died from a single stab wound
to his chest inflicted by the defendant. The defendant admitted
that he stabbed Crowley, and most of the tragic episode was
recorded by a video surveillance camera located in the hallway
outside Crowley's door. The central issue at trial was the
degree of the defendant's criminal responsibility. The judge
instructed the jury on the elements of murder in the first and
second degrees, and voluntary manslaughter based on reasonable provocation, but he declined to give an instruction on self-
defense or voluntary manslaughter based on use of excessive
force in self-defense as the defendant had requested. On
appeal, the defendant argues that the judge erred by not giving
the requested instructions, failing to give a humane practice
instruction, limiting the scope of defense counsel's redirect
examination of him, and making comments that allegedly
disparaged defense counsel in front of the jury. We affirm.
Background. The defendant and Crowley lived in adjacent
rooms on the second floor of a three-story, single occupancy
rooming house. Crowley lived in room fifteen, the defendant in
room sixteen. They sometimes watched television in the
defendant's room with other neighbors and were often joined by
Roberto Alfonso, who lived on the first floor and was the
building's manager. Crowley's room was located between the
defendant's room and the main stairway that led downstairs to
the front entrance. Both rooms had dead bolt locks that locked
from the inside and could only be opened with a key. Crowley's
door also had a peephole. The defendant had done some
renovation work in the building and was familiar with its layout
and construction. He testified that the doors were flimsy, and
the walls were thin, such that any banging or yelling would
travel from one room to the next. The defendant was also
acquainted with the building's video surveillance system that
2 included motion-activated cameras that recorded activity, but
not sound, in the common areas and outside. As noted above, one
camera was located just outside of Crowley's door and video
footage from that camera and others was admitted in evidence.
The day of the murder, August 6, 2017, was a Sunday. The
defendant's daughter, Lisa Hagan, 1 lived close by and regularly
hosted her father and friends for an early dinner on Sunday
afternoons. That Sunday was no exception. Shortly after 12
P.M., Alfonso drove Crowley and the defendant to Hagan's house.
They stopped to purchase alcohol on the way and there is no
dispute that Crowley became inebriated as the afternoon
progressed. Crowley also became belligerent and was
particularly bothered by a comment the defendant made about his
reaction when Hagan's dog vomited. Alfonso and Crowley saw the
dog get sick and almost became sick themselves. The defendant,
Alfonso, and Crowley were all military veterans. Alfonso and
Crowley's queasiness prompted the defendant to say: "You big
war heroes can't even take a little dog barf." Crowley was
offended by the comment and became angry. Alfonso testified
that Crowley "never" calmed down. As Crowley's attitude toward
the defendant worsened, the defendant became scared. At dinner,
Crowley approached the defendant from behind and muttered
1 Or Hagen; the name appears both ways in the record.
3 threats under his breath in the defendant's ear. At some point,
the defendant told Crowley that he did not want him coming back
to his room when they returned home. Later, during the car ride
back to the rooming house, Crowley continued to yell at and
threaten the defendant.
When the group arrived home, the defendant told Alfonso
that he did not want Crowley in his room because he was being
"aggressive." Alfonso replied that he would come upstairs after
he used the bathroom. Crowley and the defendant continued
upstairs to their respective rooms with the defendant walking
behind Crowley. The defendant testified that Crowley kept
screaming at him and said he would "fuck [him] up."
The defendant entered his room and locked his door but
remained worried and fearful that Crowley would come through the
door forcibly. The defendant testified that he could hear
Crowley continuing to yell and threaten him from his room and
bang on the wall. According to the defendant, Crowley said:
"I'm going to stay home from work, you know, just so we can talk
about this." Approximately thirty seconds later, Crowley left
his room, stood in front of the defendant's door, and tried to
turn the door handle. The camera recorded Crowley's actions.
He then walked down the hallway briefly, returned to the
defendant's door where he appears on the video to be yelling,
and then reentered his room.
4 About two minutes later, the camera recorded the defendant
exiting his room with a large knife in his hand. The defendant
knocked on Crowley's door and then took a step back into the
hallway. When Crowley opened the door, the defendant
immediately stepped forward quickly and stabbed Crowley in the
chest. Crowley fell backward, the defendant yelled "Leave me
the fuck alone," and then the defendant returned to his room. A
minute later, the defendant knocked on Crowley's door and
shouted at him again, but Crowley did not respond. 2 The
defendant returned to his room for another two minutes or so and
then went to get Alfonso. The defendant told Alfonso: "I
believe I killed Kevin." Alfonso immediately went upstairs to
check on Crowley. The door was unlocked. Alfonso entered the
room, saw Crowley on the floor bleeding and "gasping for air,"
and called the police. He then told the defendant to go to his
room and wait.
When the police and emergency medical technicians arrived,
Crowley was not breathing and had no pulse. He was pronounced
dead at the hospital. One of the responding officers,
Christopher Hagerty, interviewed the defendant in his room. The
defendant testified that he did not remember much about the
conversation other than asking about Crowley's condition because
2 The record does not reveal how the door to Crowley's room shut.
5 he was worried that he had "seriously hurt him." At trial,
Officer Hagerty testified that the defendant "was loud, but he
wasn't yelling." He also described the defendant as "in a
state." 3
The defendant provided additional details about his
relationship with Crowley and the events that led to the
stabbing during his testimony. According to the defendant, he
became afraid of Crowley within one month after Crowley moved
into the room next door. At one point, the defendant testified,
Crowley had grabbed him by the neck and slammed him into a door.
Crowley generally became aggressive when he drank alcohol and,
on that particular day, the defendant felt uncomfortable and
scared of Crowley. On their return to the rooming house, the
defendant kept his distance from Crowley, and when he went to
his room he was nervous, but he believed he was sufficiently
safe. He explained that even if he thought otherwise and had
decided to leave, Crowley would have seen him through the
peephole of his door. The defendant also testified that calling
the police would not have been helpful; rather it would have
just made Crowley mad. The defendant asserted that he had no
3 Based on a prior ruling on the parties' motions in limine, which is not challenged on appeal, Hagerty's testimony was limited to his observations, including seeing the knife used in the murder on the table inside of the defendant's room. He did not testify about any statements made by the defendant.
6 intention of killing Crowley. He was just in such a state of
shock and fear that he needed to do something.
Discussion. 1. Self-defense instructions. The defendant
argues that the judge abused his discretion by refusing to
submit the case to the jury on theories of self-defense and the
use of excessive force in self-defense. It is well settled that
a judge must instruct on self-defense if the evidence, taken in
the light most favorable to the defendant, was sufficient to
raise a reasonable doubt on the issue. See Commonwealth v.
Pike, 428 Mass. 393, 395 (1998). "Whether the evidence is
sufficient to reach this threshold is often a complex
determination[,] and . . . a trial judge should err on the side
of caution in determining that self-defense has been raised
sufficiently to warrant an instruction" (quotations and citation
omitted). Commonwealth v. Ramos, 66 Mass. App. Ct. 548, 554
(2006). Where, as here, the defendant has testified, "no matter
how incredible his testimony, that testimony must be treated as
true." Pike, supra.
Viewing the evidence in the light most favorable to the
defendant, and accepting his testimony as true, there was no
basis on which the defendant was entitled to an instruction on
self-defense or use of excessive force in the exercise of self-
defense. Our case law instructs that in order to properly
invoke the right to use self-defense "[t]here must be evidence
7 warranting at least a reasonable doubt that the defendant: (1)
had reasonable ground to believe and actually did believe that
he was in imminent danger of death or serious bodily harm, from
which he could save himself only by using deadly force, (2) had
availed himself of all proper means to avoid physical combat
before resorting to the use of deadly force, and (3) used no
more force than was reasonably necessary in all the
circumstances of the case." Commonwealth v. Harrington, 379
Mass. 446, 450 (1980).
Here, the defendant's testimony established only that he
was scared, and not that he had a reasonable ground to believe
or did believe he was in imminent danger of death or serious
bodily harm. To be sure, the defendant testified that he feared
Crowley could come through his door and harm him, but the
defendant's subjective fear of harm must be objectively
reasonable and here it was not. Despite his fear, the defendant
was not in imminent danger of death or serious bodily harm when
he was behind his locked door. The defendant himself
acknowledged that he could have called for help at that point,
but he decided not to do so. As he explained, in his view,
calling the police would have made things worse. The defendant
believed that the police "would have told [Crowley] to go to his
room, [the police] would have told me to go in my room and that
would have made the situation worse." Even assuming that the
8 defendant's failure to seek assistance was somehow legitimate,
we cannot ignore the facts that while Crowley was verbally
aggressive -– and threatened to physically harm the defendant –-
Crowley was unarmed, and the defendant was the first aggressor.
The video footage was, in essence, a silent movie that
unequivocally demonstrated this to be so.
Given our conclusion that there was insufficient evidence
to support a reasonable doubt that the defendant had a
reasonable ground to believe that he was in imminent danger of
death or serious bodily harm, we need not address the remaining
two factors. That said, it is evident that should we do so, the
defendant fares no better. Armed with a knife, the defendant
opened his door, knocked on Crowley's door, and then attacked
him. Even if the defendant believed that he was not safe in his
room, a staircase to safety was to the right of Crowley's door.
Furthermore, the defendant's testimony that he feared Crowley
would see him pass by the door through the peephole, even viewed
in the light most favorable to him, does not change the fact
that the defendant failed to avail himself of all proper means
to avoid physical combat before resorting to the use of deadly
force. With regard to the amount of force, we do not question
the defendant's testimony that he only "intended" to scare
Crowley, but the fact remains -– he did not simply brandish the
knife, he plunged it into Crowley's chest.
9 Lastly, because the defendant was not entitled to a self-
defense instruction at all, he was not entitled to an
instruction on the use of excessive force in self-defense.
Commonwealth v. Toon, 55 Mass. App. Ct. 642, 643 (2002).
2. Humane practice instruction. The defendant argues that
voluntariness was a live issue at trial, and therefore, the
judge was required sua sponte to give a humane practice
instruction. We do not agree.
Prior to trial, the defendant filed a motion to suppress
the statements he made to the police at the scene in part based
on the ground that the statements were involuntary due to his
agitated state. That motion was denied. At trial, defense
counsel did not argue that the defendant's admissions to police
were not voluntarily made. Nor did the defendant ever request a
humane practice instruction. 4
As we recently explained in Commonwealth v. Tillson, 104
Mass. App. Ct. 180, 194 (2024), quoting Commonwealth v.
Bohigian, 486 Mass. 209, 219-220 (2020), "If the defendant does
not raise the issue of voluntariness, the judge has a sua sponte
obligation to conduct a voir dire only if the voluntariness of
the statements is a live issue such that there is evidence of a
4 The instruction was included in an initial submission of requests for jury instructions but was not requested at the charge conference, nor was there an objection to the absence of an instruction.
10 substantial claim of involuntariness." There is no bright-line
test to determine whether voluntariness was a live issue at
trial. However, for voluntariness to be considered a "live
issue," "substantial evidence of involuntariness [must be]
produced." Commonwealth v. Gallett, 481 Mass. 662, 686 (2019),
quoting Commonwealth v. Kirwan, 448 Mass. 304, 318 (2007).
Here, the defendant argues that the filing of his motion to
suppress and his motion in limine to preclude hearsay statements
made to the officers were sufficient to make voluntariness a
"live issue." He also points to testimony provided by Officer
Hagerty that confirmed he was agitated and upset to support his
position.
Although the issue was not raised by defense counsel, the
judge was aware of it and addressed it. Before cross-
examination of the defendant commenced, the judge inquired of
the prosecutor whether she intended to introduce the defendant's
statements to police immediately after the stabbing. The
prosecutor responded: "Well, I wanted to hear what the
defendant . . . had to say during direct examination, but it's
something that I would get into on my cross examination." The
judge then correctly noted that under the case law if there was
evidence that the defendant's statements were not voluntary, he
was required to give a humane practice instruction and submit
the question of voluntariness to the jury. Although, after
11 reviewing the transcript and the ruling by a different judge on
the defendant's pretrial motion to suppress the statements the
judge made a preliminary decision that there was no substantial
evidence of involuntariness, the judge made clear that he would
give a humane practice instruction if those statements were
admitted in evidence.
As it turned out, the prosecutor solicited only one
statement during her cross-examination. She asked:
Q.: "Do you recall telling him that Kevin threw a punch at you and he grazed your face?"
A.: "That was I was talking about two weeks before."
Q.: "So, you remember some of what you told Officer Hagerty?"
A.: "I don't remember everything at -- at that point. You know, I was sitting there and I was nervous. I was scared. I don't recall everything that was said between me and the officer."
Q.: "Do you remember saying that after Kevin threw the punch at you and grazed your face that's when you went into the hallway when Kevin came at you?"
A.: "No."
The exchange transcribed above does not provide a
sufficient basis for concluding that the judge should have given
a humane practice instruction. First, the defendant neither
objected nor requested that a humane practice instruction be
given in response to this testimony. Second, "emotional upset
alone does not render" a statement involuntary in the absence of
12 evidence that the defendant was acting irrationally.
Commonwealth v. Auclair, 444 Mass. 348, 355 (2005). In any
event, if there was error, there was no substantial risk of a
miscarriage of justice. See Commonwealth v. Richards, 485 Mass.
896, 914 (2020) (applying substantial likelihood standard).
To begin with, the evidence of involuntariness was not of
the type or magnitude that our cases have found results in a
substantial risk of a miscarriage of justice from the absence of
a humane practice instruction. See Bohigian, 486 Mass. at 220
(2020) (defendant arguably "wasn't fine" during questioning
where he had a visible head injury and showed signs of head
trauma). Nor is this a case involving coercive questioning or
force. Instead, the claim of involuntariness rests on the
notion that the defendant was upset on learning that he had
killed Crowley. Given these circumstances, we conclude that
there is no serious risk that the jury, had it received a humane
practice instruction, "would have concluded that the
Commonwealth failed to meet its burden of proving that the
defendant's statements to police were voluntary and therefore
disregarded them." Richards, 485 Mass. at 914. 5
5 Given our conclusion, there is no basis for the defendant's claim that counsel was ineffective for not requesting an instruction. See Commonwealth v. LaCava, 438 Mass. 708, 719-720 (2003).
13 3. Redirect examination of the defendant. "The scope of
redirect examination is within the sound discretion of the trial
judge. 'A defendant who claims, on appeal, an abuse of
discretion, assumes a heavy burden'" (citation omitted).
Commonwealth v. Arriaga, 438 Mass. 556, 577 (2003). The
defendant has not met his burden here.
During his direct testimony, the defendant testified at
length about his reaction to Crowley's aggressive and
threatening behavior and explained that he was nervous and
scared when he approached Crowley's door with the knife. He
also believed that calling for assistance would not have been
helpful. Thereafter, during cross-examination, the prosecutor
posed a series of questions about the options available to the
defendant when he left his room and approached Crowley's door.
Specifically, she asked whether the defendant was a runner and
whether he could have made it past Crowley's door "quite
quickly." The defendant responded: "Yes."
On redirect examination, defense counsel asked additional
questions regarding the defendant's ability to pass by Crowley's
door and run down the stairs safely. Specifically, she asked:
(1) "Are you a runner?" and (2) "how old are you, sir?" These
questions were answered. However, the Commonwealth objected
when defense counsel asked: (1) "What were you scared that
Kevin was going to do?" and (2) "When Kevin knocked and tried
14 the handle and walked away, . . . what was your feeling, at that
point, about whether he would or would not go away and stay
away." The objections were sustained. At sidebar, the judge
explained his rulings as follows:
"you've gone over all of that in your direct, how he felt when all those things happened. . . . I didn't catch anything that was clearly inquired in cross examination that you were asking about. You asked a bunch of questions that were clearly not a part of cross examination, if I missed on one of them I mean I'd like to know, but I was trying to enforce a scope objection. That's what I was trying to do."
There was no abuse of discretion. Contrary to the
defendant's assertion, the questions to which objections were
sustained were beyond the scope of the topics covered during
cross-examination. Those topics focused on what the defendant
could have done instead and were not aimed at soliciting
testimony about the defendant's reasons for his actions.
Moreover, as the judge observed, the defendant had already
addressed these issues during his direct examination. As a
result, we are not persuaded by the defendant's argument that
the questions he was not allowed to ask fell within the scope of
cross-examination.
Nor are we persuaded, as the defendant asserts, that
defense counsel was foreclosed from rehabilitating the
defendant's credibility on "the decisive issues in the case."
We acknowledge that one essential purpose of redirect
15 examination is to give a witness an opportunity to explain or
correct testimony solicited during cross-examination. Here,
however, the defendant had little, if anything, to correct. As
the judge noted, the defendant had already testified about the
reasons for his actions during his direct examination.
Furthermore, as described above, defense counsel was permitted,
over the Commonwealth's objection, to ask the defendant about
his perceptions regarding any avenues of escape and
opportunities to seek intervention from others.
4. Judge's comment to the jury. After sustaining the
prosecutor's objections to defense counsel's questions as
described above, the judge explained his ruling to the jury as
follows:
"Let me explain to the jury. We generally, as you've seen, have two rounds of questioning, direct examination, cross examination and then if there's a desire to do so the calling attorney, whoever called the witness, gets redirect examination. But redirect examination is limited to the subjects and to clarify or questioning about [sic] what was brought out in cross examination. In redirect you can't go back and do what you've done on direct examination. The same is true for recross examination, you don't go back to get –– a lawyer doesn't get to go back and kind of fix things or deal with things or address things a second or maybe a first time that weren't addressed, but could have been addressed there in the earlier inquiry. So, the last round, redirect and recross, is very limited and it's limited by what was brought out in either cross examination or in the other way around in the redirects then the attorney could bring –– could talk about those things."
The defendant did not lodge an objection to any portion of
the judge's explanation. He now challenges the statement: "a
16 lawyer doesn't get to go back and kind of fix things or deal
with things or address things . . . that weren't addressed, but
could have been addressed . . . in the earlier inquiry" and
claims that it disparaged defense counsel. According to the
defendant, the jury could only have understood the comment to
mean that, in the judge's view, there was something wrong or
missing from the defendant's case. We disagree.
The comment, read in context, was not as pointed as the
defendant claims. Nor was it similar to the comments made by
the trial judge in Commonwealth v. Sneed, 376 Mass. 867, 869
(1978), on which the defendant relies. In that case, the trial
judge was admonished for his inappropriate intervention during
the questioning of a critical defense witness. The judge asked
the witness why she had not come forward earlier and threatened
her with perjury. The judge also belittled the defendant's
right to remain silent. Nothing of the sort occurred here.
We also reject the defendant's argument that the additional
comments to defense counsel regarding the improper use of
leading questions and the proper manner in which a witness could
be impeached, when taken together with the judge's explanation
about objections quoted above, undermined his right to a fair
trial. We have reviewed the entire transcript carefully and
conclude that the judge acted fairly and without partisanship
throughout the proceedings. In sum, we discern no error, let
17 alone one that created a substantial risk of a miscarriage of
justice, in the manner in which the judge conducted the trial.
Judgment affirmed.
By the Court (Vuono, Rubin & Smyth, JJ. 6),
Clerk
Entered: August 21, 2024.
6 The panelists are listed in order of seniority.