Criminal – Felony – murder

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Where a defendant was convicted of first-degree murder, the conviction should be upheld despite the prosecutor’s improper closing argument regarding the defendant’s medical expert.

“On July 29, 2008, John Marshall (victim) was stabbed to death in a parking lot in the Roxbury section of Boston. A grand jury returned indictments charging the defendant, David Copeland, with murder in the first degree and armed robbery. At trial, the defendant conceded that he stabbed the victim, but argued that he suffered from posttraumatic stress disorder (PTSD) at the time of the killing, that the killing was a spontaneous event, and that he did not rob the victim. A Superior Court jury convicted the defendant of felony-murder in the first degree and armed robbery. On appeal from his convictions, the defendant challenges (1) the Commonwealth’s opening statement; (2) the sufficiency of the evidence on the offenses of felony-murder and deliberately premeditated murder; (3) the judge’s refusal to instruct the jury on felony-murder in the second degree; (4) the Commonwealth’s closing argument; and (5) defense counsel’s ineffective performance. …

“From the evidence presented during the Commonwealth’s case-in-chief, a rational jury could infer that the defendant intended to and did steal from the victim on July 29, and that he did so using a knife to stab the victim. …

“The defendant contends that the Commonwealth made several improper comments during its closing argument. Because the defendant did not object to the closing argument at trial, we review to determine whether any errors created a substantial likelihood of a miscarriage of justice. …

“Only one of the defendant’s contentions requires significant discussion. According to the defendant, the Commonwealth improperly referred to the defendant’s medical expert as ‘a paid expert with a job to do …, and that job was to come up with the excuse and then come in and sell that excuse to you.’ ‘[I]t is improper for a prosecutor to suggest that an expert witness’s testimony was “bought” by a defendant or to characterize the witness as a “hired gun” where … there was no evidence that he was paid more than his customary fee’ (citation omitted). Commonwealth v. Bishop, 461 Mass. 586, 598 (2012). …

“Nevertheless, it is unlikely that this error influenced the jury’s decision. It was an isolated error, made in the context of a larger, proper discussion of evidence showing weaknesses in the expert’s assessment of the defendant, and the judge instructed the jury that closing arguments are not evidence. … Therefore, the error did not create a substantial likelihood of a miscarriage of justice. …

“According to the defendant, trial counsel improperly failed to (1) move for a required finding of not guilty on deliberately premeditated murder and felony-murder at the close of the Commonwealth’s case, and (2) object to the Commonwealth’s closing argument. The defendant’s claims cannot succeed here, where we have already concluded that even if there was insufficient evidence to convict on deliberately premeditated murder, the error does not require reversal (see note 3, supra); that there was sufficient evidence to convict the defendant of felony-murder at the close of the Commonwealth’s case; and that any error in the Commonwealth’s closing argument did not create a substantial likelihood of a miscarriage of justice.”

Commonwealth v. Copeland (Lawyers Weekly No. 10-008-19) (21 pages) (Lowy, J.) Cases tried before Gaziano, J., in Superior Court. Stephen Paul Maidman on appeal for the defendant; Julianne Campbell for the commonwealth (Docket No. SJC-10992) (Jan. 18, 2019).

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