Commonwealth v. Martin D. McDonald.

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

23-P-19

COMMONWEALTH

vs.

MARTIN D. MCDONALD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court on an

indictment charging him with murder in the first degree, the

defendant was found guilty of the lesser included offense of

voluntary manslaughter. At trial, there was no dispute that on

the evening of January 27, 2016, the defendant fatally beat and

stabbed his wife at their home in front of their two children,

his stepdaughter, and niece. The defendant also assaulted his

stepdaughter, who had intervened and attempted to help her

mother. The defendant then drove away in his truck and was

speeding on Route 495 when he crossed over the median and

collided with a car driven by Kathryn Degnan. In addition to

the conviction of manslaughter, the defendant was convicted of

assault and battery and intimidation of a witness against his

stepdaughter, assault and battery by means of a dangerous weapon
(motor vehicle) causing serious bodily injury to Degnan, and

operating a motor vehicle to endanger.

On appeal, the defendant challenges the sufficiency of the

evidence of serious bodily injury to Degnan. He further argues

that the judge improperly denied his request to represent

himself at trial and impermissibly considered the murder of

which he was acquitted in imposing sentences on the charges of

which he was convicted. We affirm.

Background. Given the issues raised on appeal, we need not

recite the facts pertaining to the wife's death in detail. It

suffices to note that the defendant testified at trial that he

had an argument with his wife during which she acknowledged that

she was in love with another man. The defendant then packed

some clothes and was leaving the home when his wife punched him

and he "felt like his brain explode[d]." Although the defendant

admitted that he killed his wife, he contended that he was not

guilty of murder because he was in an altered mental state due

to, among other things, his consumption of alcohol and Percocet

earlier that day and his overuse of prescribed testosterone

medication.

Because the defendant challenges the sufficiency of the

evidence with respect to the conviction involving Degnan, we

review the evidence supporting that conviction in more detail.

The defendant testified that he was depressed and upset when he

2
left the house after killing his wife and wanted to end his

life. There was evidence that the defendant was driving over

one hundred miles per hour on Route 495 before he made an abrupt

turn, crossed over the median, and hit Degnan's car head on

causing it to roll over multiple times before it stopped upside

down. One witness described Degnan's car as "completely

obliterated." Degnan managed to call the police and crawl out

of her car. She was bleeding, bruised, and her mouth was full

of broken glass. An ambulance transported Degnan to the

hospital where she was treated for her injuries. Several of

Degnan's teeth were chipped, and she had whiplash which caused

severe pain in her back, neck and shoulders, and jaw. In

addition, within a few days of the accident, Degnan was

diagnosed with a concussion. At the time of trial, Degnan had

lingering pain and recurring headaches. She had three surgeries

to repair the damage to her jaw but continued to experience

discomfort.

Discussion. 1. Sufficiency of the evidence. The

defendant contends that the evidence was insufficient to prove

beyond a reasonable doubt that Degnan suffered a "serious bodily

injury," as defined in G. L. c. 265, § 15A (d). "In reviewing a

denial of a motion for a required finding of not guilty, our

inquiry is whether the evidence, viewed in the light most

favorable to the Commonwealth, was sufficient to satisfy a

3
rational trier of fact that the essential elements of the crime

have been proven beyond a reasonable doubt." Commonwealth v.

Vazquez, 69 Mass. App. Ct. 622, 626 (2007). "In satisfying that

test, the Commonwealth may rely on reasonable inferences drawn

from circumstantial evidence." Id., quoting Commonwealth v.

Degro, 432 Mass. 319, 325 (2000).

General Laws c. 265, § 15A (d), defines the element of

serious bodily injury in three ways: bodily injury resulting in

1) "a permanent disfigurement," 2) "loss or impairment of a

bodily function, limb or organ," or 3) "a substantial risk of

death." The three alternative definitions do not establish

distinct "theories of guilt," or different ways of committing

the crime, but rather set forth "related ways of proving" the

element of serious bodily injury. Commonwealth v. Inoa, 97

Mass. App. Ct. 262, 264-265 (2020). Accordingly, "a reviewing

court need not examine the evidence separately as to each

definition of serious bodily injury in G. L. c. 265, § 15A (d),

to uphold a conviction against a sufficiency challenge. What is

required is that there be sufficient evidence of serious bodily

injury under at least one of the definitions."1 Inoa, supra at

265-266. Here, the evidence of injuries to Degnan's teeth and

1 Because the Commonwealth did not proceed on alternative
theories, the defendant's reliance on Commonwealth v. Plunkett,
422 Mass. 634 (1996), is misplaced.

4
jaw was sufficient to establish serious bodily injury under

either of the first two definitions.

A permanent disfigurement is defined as "a significant and

enduring injury that affects the appearance or the character of

a person's bodily integrity." Commonwealth v. Heywood, 484

Mass. 43, 50 (2020). Additionally, "[a]lthough the trier of

fact certainly may consider visible evidence, the fact that an

injury can be or was concealed or repaired does not preclude a

finding of permanent disfigurement." Id.

Degnan testified that, after the accident, she had "one

bigger chip, but then, in the back [of her mouth] . . . a few

smaller ones" and that her teeth were not chipped prior to the

crash. The defendant asserts that because the Commonwealth did

not introduce expert testimony or dental records to corroborate

Degnan's testimony, the Commonwealth failed to meet its burden.

However, "medical testimony may not be required in every

instance to establish that a victim has suffered serious

injury." Commonwealth v. Scott, 464 Mass. 355, 364 (2013).

Here, the absence of such evidence did not entitle the defendant

to a required finding of not guilty. Rather, the jury could

have assessed the evidence based on their ordinary and common

experience and concluded that Degnan's chipped teeth resulted in

a permanent disfigurement. Commonwealth v. Beal, 474 Mass. 341,

346 (2016).

5
Similarly, Degnan's testimony regarding the injury to her

jaw satisfied the Commonwealth's burden of proving the loss or

impairment of a bodily function. Such loss occurs "when a part

or system of the body (other than an organ or limb) is

significantly impeded in its ability to fulfil its role."

Scott, 464 Mass. at 359. An impairment of a bodily function

need not be permanent or life threatening to qualify as a

serious bodily injury. See, e.g., Commonwealth v. Marinho, 464

Mass. 115, 118-119 (2013).

Degnan testified, "I remember my back hurt, my hip hurt, my

neck. The whiplash was, like, into my shoulders, into my neck,

and was also causing a lot of jaw pain." She further explained

that her "jaw never stopped hurting" and, eventually, she

underwent three surgeries in an effort to re-set her jaw and

alleviate the pain. The Commonwealth also introduced Degnan's

medical records relating to the surgeries and treatment of her

jaw.2 Based on Degnan's testimony, as corroborated by the

medical records, the jury could reasonably have concluded that

the continued pain in Degnan's jaw significantly interfered with

Although some parts of the medical records may have been
2

beyond the understanding of lay jurors, the records also
included narrative descriptions that were readily accessible.
While "[m]edical records containing technical terminology that
require jurors to speculate on the meaning of key terms will be
insufficient, without more," to prove serious bodily injury,
Scott, 464 Mass. at 364, here the records were sufficient to
corroborate Degnan's testimony.

6
her ability to properly use it. While it is true, as the

defendant notes, that Degnan testified that she previously had

problems with her jaw alignment,3 she also testified that those

problems were exacerbated by the injuries she sustained from the

collision. Accordingly, evidence of any preexisting conditions

did not preclude the jury from finding beyond a reasonable doubt

that Degnan suffered an impairment of a bodily function.

2. Denial of right to proceed pro se and request to

appoint standby counsel. Two weeks before the scheduled trial

date, the defendant filed an emergency motion to continue the

trial and appoint new counsel. The motion stated that the

defendant was "dissatisfied with the representation he has been

receiving" and that "there [were] irreconcilable differences

between client and counsel." The trial judge held a hearing on

the motion at which the defendant and counsel addressed the

court. At the conclusion of the hearing, the judge denied the

motion.4 Just before the court adjourned, the defendant inquired

about his right to represent himself and about the possibility

of having the assistance of standby counsel.

3 Degnan explained that she has had problems with her jaw
because of "the way [her] jaw was formed" at birth and that her
"jaw used to always click."

4 The judge issued written findings within a few days of the
hearing.

7
Although the defendant never again raised the question of

proceeding pro se or being assisted by standby counsel, he now

claims that his constitutional rights were violated because the

judge failed to fully apprise him of his right to represent

himself or have standby counsel appointed.

"It is not disputed that a defendant has a right, one

protected by both the Federal and State Constitutions, to

proceed pro se with respect to his defense against criminal

charges." Commonwealth v. Myers, 51 Mass. App. Ct. 627, 628

(2001). However, "[a] request that present counsel be

discharged does not by itself constitute a demand to be

permitted to proceed pro se. '[T]he criminal defendant must

make an unequivocal request to act as his own lawyer in order to

invoke the right'" (citation omitted). Id. at 628-629.

Here, the judge explicitly found that the defendant did not

make an unequivocal request to proceed pro se. As the judge

noted in his written findings, the defendant did not move to

represent himself, but rather inquired about his right to do so.

The judge further explained: "it [was] clear from [the

defendant's] motion to appoint new counsel and from his remarks

at the motion hearing, that he desire[d] to be represented by

counsel. He [did] not voluntarily and intelligently waive[] the

right to counsel." Ultimately, the judge concluded that the

8
defendant's inquiry was "a ploy intended to prevent the trial

from proceeding against [the defendant's] wishes."

The defendant asserts that once he raised the issue of

proceeding pro se, the judge was required to conduct a

"meaningful" colloquy before "summarily denying [his]

constitutional right to proceed pro se." Contrary to the

defendant's assertion, the judge was not required to conduct a

colloquy. The defendant did not press the issue and never

indicated that he wished to represent himself. Furthermore,

given the age of the case and the fact that the defendant had

already changed counsel once, the judge was warranted in finding

that the defendant was not genuinely requesting to represent

himself, but rather was attempting to delay the trial. In sum,

these circumstances did not obligate the judge to question the

defendant further. See Myers, 51 Mass. App. Ct. at 628-629.

The defendant's alternative argument, that the judge should

have considered appointing standby counsel, is equally

unavailing. Apart from the fact that a defendant does not have

a constitutional right to standby counsel, see Commonwealth v.

Molino, 411 Mass. 149, 152-154 (1991), the defendant did not

request the appointment of standby counsel. Additionally, the

defendant's comment, that he would need "a new co-counsel or

standby attorney that's not [current appointed counsel]" cannot

9
be reasonably interpreted as making a request to proceed pro se

with the assistance of standby counsel.

Lastly, to the extent that the defendant argues that his

motion to appoint new counsel should have been allowed, he fares

no better. The defendant has the burden of showing good cause

to remove appointed counsel, see Commonwealth v. Chavis, 415

Mass. 703, 712 (1993), and the decision "to honor a defendant's

request for change of appointed counsel is a matter left to the

sound discretion of the trial judge." Commonwealth v. Moran,

388 Mass. 655, 659 (1983). We note that the defendant was given

an opportunity to explain the reasons for his dissatisfaction

with counsel. Notwithstanding the defendant's concerns, the

judge concluded that because counsel was prepared to try the

case, counsel was a highly regarded defense attorney (described

by the judge as "an excellent attorney") who had actively

engaged in motion practice on behalf of the defendant for the

prior four and one-half years, and the defendant had never

before made any complaint about counsel's representation, none

of the proffered reasons was sufficient to meet the defendant's

burden. Moreover, as previously noted, the judge believed, with

good reason, that the defendant was engaging in dilatory

tactics. Given these circumstances, the judge did not abuse his

discretion.

10
3. Sentencing. The defendant claims that the sentence

imposed was excessive and, as such, demonstrates that the judge

did not sentence him for the crimes of which he was convicted

but improperly punished him for the crime of murder. He also

argues that the judge was unduly influenced by the victim impact

statements presented before sentence was imposed. Because the

defendant appealed his sentence to the Appellate Division of the

Superior Court, which dismissed his appeal, our review is for

"errors of law or constitutional violations." Commonwealth v.

Grimshaw, 412 Mass. 505, 513 (1992). Neither an error of law

nor a constitutional violation occurred here.

"A sentencing judge has great discretion within the

statutorily prescribed range to fashion an appropriate[,]

individualized sentence" (quotations and citation omitted).

Commonwealth v. Holness, 93 Mass. App. Ct. 368, 375 (2018). At

the same time, "[a] sentencing judge may not undertake to punish

the defendant for any conduct other than that for which the

defendant stands convicted in the particular case." Id.,

quoting Commonwealth v. LeBlanc, 370 Mass. 217, 221 (1976). In

this case, the judge imposed an aggregate prison term of from

thirty-five to forty-five years, which exceeded the

Commonwealth's recommendation of an aggregate term of from

11
twenty-nine to thirty-five years.5 The judge explained his

reasons for the sentence he imposed as follows:

"I think the only word for this case is heartbreaking. The
pain that's been inflicted is enormous and almost
incomprehensible. It's something no one should have to go
through. There have been many, many victims of this
offense. There are three that are named in the
indictments, and there's going to be a separate sentence on
each of those three."

These comments do not suggest that the judge considered

improper factors as the defendant claims. Rather, the comments

show that the judge properly considered "the nature of the

offense[s] and the circumstances surrounding the commission of

the crime[s]" by imposing separate sentences on each charge that

involved a different victim. See Holness, 93 Mass. App. Ct. at

375, quoting Commonwealth v. Jones, 71 Mass. App. Ct. 568, 572

(2008). Furthermore, despite exceeding the Commonwealth's

recommendation, the sentences fell within the ranges permitted

by statute. Nor are we persuaded that the judge punished the

defendant for committing murder, a charge for which he was

acquitted. To the contrary, the judge relied on legally

5 Specifically, the judge sentenced the defendant to a term
of from eighteen to twenty years on the conviction of
manslaughter, a consecutive term of from seven to ten years on
the conviction of witness intimidation, and a third consecutive
term of from ten to fifteen years on the conviction of assault
and battery by means of a dangerous weapon causing serious
bodily injury. The judge imposed concurrent house of correction
sentences on the assault and battery and operating a motor
vehicle to endanger convictions.

12
acceptable criteria in imposing consecutive sentences. Lastly,

although it was clear from the victim impact statements that the

defendant's conduct exacted a significant emotional toll, we are

confident that the judge was not swayed by emotion or other

improper considerations.

Judgments affirmed.

By the Court (Vuono,
Massing & Toone, JJ.6),

Clerk

Entered: September 4, 2024.

6 The panelists are listed in order of seniority.

13