Criminal – Murder

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Where a defendant was convicted of murder in the first degree, the conviction should be affirmed because it was harmless error for the trial judge to instruct counsel that attorney-conducted voir dire is properly limited to questions solely relating to apparent bias and does not include the opportunity to elicit information that may help counsel exercise a peremptory challenge.

Affirmed.

“The defendant was convicted of murder in the first degree, on a theory of deliberate premeditation. The conviction arose from the defendant’s admitted strangulation of his estranged wife, which the defendant contended occurred under mitigating circumstances of reasonable provocation or sudden combat during an argument. On appeal, the defendant argues that portions of a recorded interview with police should have been admitted under the doctrine of verbal completeness, instruction of the venire and attorney-conducted voir dire were improperly limited, certain communications with a former romantic partner should have been excluded from evidence, and the prosecutor’s cross-examination of the defendant was improper. We affirm the convictions and decline to exercise our power under G.L.c. 278, section33E, to reduce the verdict to manslaughter or to order a new trial. …

“The defendant argues that the trial judge erred in not admitting portions of the recorded interview under the doctrine of verbal completeness, abused his discretion by limiting the instruction of the venire and improperly limited attorney-conducted voir dire during jury selection, abused his discretion in admitting the defendant’s cellular text messages and a letter to former romantic partner [Jean] Chakoutis, and allowed improper cross-examination of the defendant by the prosecutor. The defendant also asks this court to exercise its power under G.L.c. 278, section33E, to order a new trial or a reduction in the verdict. …

“The defendant argues that the failure to admit in evidence ‘exculpatory portions’ of his recorded interview with police forced him to testify to potentially mitigating circumstances under which the killing occurred, thereby violating his right not to testify, his right to a fair trial, and his right to a meaningful opportunity to present a complete defense under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. Where the exclusion of evidence involves constitutional dimensions, we examine the judge’s decision independently, under ‘a standard higher than that of abuse of discretion.’ … Upon examination under this higher standard, we are satisfied that the exclusion of the recorded interview was not error and did not infringe on the defendant’s constitutional rights. …

“… In this context, it is reasonable to require that evidence of the defendant’s version of events be subjected to cross-examination and the legitimate demands of the adversarial system. … Accordingly, we find that, in the circumstances of this case, the exclusion of the defendant’s recorded interview statements as inadmissible hearsay did not violate the defendant’s right not to testify, his right to a fair trial, or his right to a meaningful opportunity to present a complete defense under the Fifth, Sixth, and Fourteenth Amendments and art. 12. …

“The defendant contends that two aspects of the jury empanelment violated his right to trial by an impartial jury. First, he argues that the judge erroneously refused to instruct the venire that murder is subject to mitigating circumstances, such as heat of passion on reasonable provocation. Second, the defendant asserts that his trial counsel was improperly restrained in the type of questions he was permitted to ask during individual voir dire. We conclude that no prejudicial error occurred during empanelment. …

“We agree that the judge erred in instructing counsel that attorney-conducted voir dire is properly limited to questions solely relating to apparent bias, and does not include the opportunity to elicit information that may help counsel exercise a peremptory challenge. … However, we conclude that the error was harmless and did not result in a substantial likelihood of a miscarriage of justice where the record demonstrates that the judge’s misstatement did not produce actual restraint upon trial counsel’s subsequent inquiry regarding background information, such as educational degrees, or the exercise of the defendant’s peremptory challenges. …

“Next, the defendant argues that the trial judge abused his discretion in admitting prior bad act evidence in the form of text messages between the defendant and his former romantic partner, Chakoutis, as well as a letter the defendant sent to Chakoutis three years after the homicide. …

“We conclude that the admission of the relationship-related text messages between the defendant and Chakoutis was not an abuse of discretion, where there was little risk of unfair prejudice outweighing the probative value of these text messages in establishing the defendant’s state of mind and relationship with the victim shortly before the killing. …

“Similarly, we find no abuse of discretion in the admission over the defendant’s objection of a letter he wrote to Chakoutis in June 2019, approximately three years after the killing. …

“After a thorough review of the record, we conclude that there is no other reason to exercise our authority under section33E to grant a new trial or reduce or set aside the verdict of murder in the first degree.”

Commonwealth v. Steeves (Lawyers Weekly No. 10-087-22) (41 pages) (Cypher, J.) The cases were tried before James F. Lang, J., in Superior Court. Stephen Paul Maidman on appeal for the defendant; Emily R. Mello for the commonwealth (Docket No. SJC-12981) (July 18, 2022).

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