Commonwealth v. Lao

Summary

The Massachusetts Supreme Judicial Court affirmed the defendant’s conviction for deliberately premeditated murder. The court rejected challenges concerning hearsay evidence, a late-disclosed witness and references to a prior trial, the prosecutor’s closing argument and timeline chart, the requested Bowden instruction, and the deliberate-premeditation instruction. The court also declined to reduce the degree of guilt or order a new trial under G. L. c. 278, § 33E.

Holdings

1. Although the prosecutor's question improperly called for speculation about the defendant's state of mind, the victim's answer was admissible as an excited utterance when viewed as describing the event causing her crying and screaming. The admission did not create a substantial likelihood of a miscarriage of justice.
2. The trial judge did not abuse his discretion in denying the defendant's motion for a mistrial or motion to strike. The defendant failed to show bad faith, a discovery violation, or prejudice resulting from the late disclosure and the witness's testimony.
3. The prosecutor's closing argument was grounded in the evidence, did not misrepresent testimony, and did not improperly diminish the reasonable-doubt standard. The timeline chart was a permissible aid to the argument and was not shown to be inaccurate.
4. The defendant was not entitled to a specific Bowden instruction. Bowden permits a defendant to present evidence and argument concerning inadequacies in the police investigation but does not create a defense, an element, or a requirement that the judge give a particular instruction.
5. The deliberate-premeditation instruction was not erroneous because the judge gave the approved instruction from the Model Jury Instructions on Homicide.

Questions Presented

1. Whether the victim's statements to her daughter concerning the defendant's attempt to run her over and the events causing her distress were improperly admitted.
2. Whether the trial judge abused his discretion by denying a mistrial or motion to strike based on a witness's late-disclosed and changed testimony and references to the defendant's prior trial.
3. Whether the prosecutor's closing argument and timeline chart misstated the evidence or improperly urged conviction on a burden less than proof beyond a reasonable doubt.
4. Whether the defendant was entitled to a so-called Bowden instruction concerning alleged inadequacies in the police investigation.
5. Whether the jury instruction on deliberate premeditation was legally adequate.
6. Whether the record warranted relief under the Supreme Judicial Court's power under G. L. c. 278, § 33E.

Disposition

affirmed