Commonwealth v. John Michelin.

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-1322

COMMONWEALTH

vs.

JOHN MICHELIN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, John Michelin, was indicted for murder in

the first degree, G. L. c. 265, § 1, and assault and battery by

means of a dangerous weapon, G. L. c. 265, § 15A (b). After a

jury trial in Superior Court, he was found guilty of the lesser

included offense of involuntary manslaughter, G. L. c. 265,

§ 13.1 On appeal, the defendant claims that the motion judge

should have suppressed evidence obtained as a result of the

police's entry into the apartment and protective sweep, as well

as statements made by the defendant at a police interview

following his arrest. The defendant also claims that the trial

1A nolle prosequi entered on the charge of assault and
battery by means of a dangerous weapon.
judge erred by failing to give a specific unanimity instruction

and that the prosecutor made improper statements during closing

arguments. We affirm.

Background. We summarize the facts as found by the motion

judge. Just before midnight on Saturday, April 8, 2017, two

Lynn police officers were dispatched to a multiunit apartment

building in response to a 911 call. The caller, Richard

Hilliard, was standing outside, and his finger was bleeding

"from a significant cut." Hilliard, whom one of the officers

knew was a resident of apartment two in the building's basement,

told them that there had been a fight inside the apartment, that

there were three or four people inside, and that they were

involved in a gang. Hilliard said that one of the individuals

in the apartment was armed with a baseball bat and that another

had been "laid out." As one of the officers began to enter

through an exterior door leading to a foyer in the building, he

could hear at least two people grunt, one of them say, "Just

leave him here, c'mon," and then a door close. After they

entered the building's foyer, the officers saw a man lying next

to the apartment door at the bottom of the stairs. The man was

unconscious, a bloody T-shirt was pulled over his face, his

pants were around his ankles, he had apparent anal trauma, and a

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broom was lying next to him. It appeared that his body had been

dragged from apartment two.

After the officers knocked on the door of apartment two, a

man answered and was handcuffed and removed from the apartment.

The officers entered and conducted a protective sweep of the

apartment. They encountered a woman in the bathroom and the

defendant on a bed in a bedroom, and placed both in handcuffs.

They also saw several items in plain view, including a blood-

covered rag or sheet, blood stains on the kitchen floor and

counter, a large blood stain in the living room, a blood-stained

guitar, and a blood-stained baseball bat.

With the foyer and the apartment secured by the police,

medical personnel transported the victim to the hospital. After

reading the detained individuals their Miranda rights, the

police posted a sentry at the apartment and prepared an

application for a search warrant. The police transported the

defendant to the Lynn police station, where he provided a

deoxyribonucleic acid (DNA) saliva sample and a recorded

statement. The victim died days later.

Discussion. 1. Warrantless entry into the apartment. The

defendant contends that the motion judge erred in finding that

the warrantless entry was justified by exigent circumstances and

the emergency aid doctrine, and that all evidence discovered as

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a result of the warrantless entry and protective sweep of the

apartment should have been suppressed. "In reviewing a ruling

on a motion to suppress evidence, we accept the judge's

subsidiary findings of fact absent clear error" (citation

omitted). Commonwealth v. Daveiga, 489 Mass. 342, 346 (2022).

"We review independently the application of constitutional

principles to the facts found" (citation omitted). Id.

"A warrantless government search of a home is presumptively

unreasonable under the Fourth Amendment to the United States

Constitution and art. 14 of the Massachusetts Declaration of

Rights" (quotation and citation omitted). Commonwealth v.

Arias, 481 Mass. 604, 609 (2019). "Warrantless searches may be

justifiable, however, if the circumstances of the search fall

within an established exception to the warrant requirement."

Commonwealth v. Tuschall, 476 Mass. 581, 584 (2017).

Assuming without deciding that the defendant had an

expectation of privacy as a guest in the apartment, we agree

with the motion judge that exigent circumstances justified the

officers' warrantless entry. "[T]wo conditions must be met in

order for a nonconsensual entry to be valid under the exigent

circumstances doctrine: (1) there must be probable cause and

(2) there must be exigent circumstances" (quotations omitted).

Arias, 481 Mass. at 615, quoting Commonwealth v. DeJesus, 439

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Mass. 616, 619 (2003). To satisfy the exigent circumstances

prong, the police must have "reasonable grounds to believe that

obtaining a warrant would be impracticable under the

circumstances because the delay in doing so would pose a

significant risk that the suspect may flee, evidence may be

destroyed, or the safety of the police or others may be

endangered." Commonwealth v. Figueroa, 468 Mass. 204, 213

(2014). "Whether exigent circumstances are found depends upon a

consideration of the totality of the circumstances as they

appeared to the officers at the time of entry." Commonwealth v.

Cataldo, 69 Mass. App. Ct. 465, 473 (2007). In this case, the

police had probable cause to believe that a serious crime of

violence had occurred in the apartment. Hilliard, himself

bleeding, told the officers that there had been a fight inside

the apartment and that one person had been "laid out" and

another had a baseball bat. After the officers gained entry to

the building foyer, they found an unconscious man who had been

brutalized and apparently dragged from the apartment. These

facts established not only probable cause to believe a crime had

occurred, but also an objectively reasonable belief that others

might still be in danger and those responsible for the violence

might flee. Moreover, the police had to secure the area to

enable medical personnel to render aid to the victim. Delaying

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entry into the apartment in order to apply for a search warrant

could have endangered others in the apartment, delayed aid to

the victim, and allowed any perpetrators the time to destroy

evidence, hide, or further arm themselves against a police

entry.

For similar reasons, we agree that the warrantless entry

was also justified under the emergency aid doctrine. "Under the

emergency aid doctrine, the police 'may enter a home without a

warrant to render emergency assistance to an injured occupant or

to protect an occupant from imminent injury.'" Commonwealth v.

Regan, 104 Mass. App. Ct. 623, 627 (2024), cert. denied, U.S.

Supreme Ct., No. 24-6339 (Mar. 3, 2025), quoting Commonwealth v.

Townsend, 453 Mass. 413, 425 (2009). "In determining whether

entry is justified under the emergency aid exception, we look

solely to the objective circumstances known to the police at the

time of entry and determine whether those circumstances provide

a reasonable basis for entry." Commonwealth v. Entwistle, 463

Mass. 205, 214 (2012), cert. denied, 568 U.S. 1129 (2013).

"Because the purpose of police entry is not to investigate

criminal activity, a showing of probable cause is not necessary

to invoke the exception." Regan, supra at 628. Here, an

injured witness told the officers that there had been a fight

and someone was "laid out" in the apartment, and the officers

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found another victim severely injured and unconscious outside

the apartment. Given these facts, the police had objectively

reasonable grounds to believe that one or more persons inside

the apartment were at risk of imminent harm or "in need of

immediate assistance." Commonwealth v. Gordon, 87 Mass. App.

Ct. 322, 329 (2015).2

2. Invocation of right to counsel. The defendant also

maintains that the motion judge erred in finding that the

defendant did not invoke his right to counsel and that the

defendant knowingly, voluntarily, and intelligently waived his

Miranda rights. We disagree. During a custodial interrogation,

"[i]f the accused indicates that he wishes to remain silent,

'the interrogation must cease.' If he requests counsel, 'the

interrogation must cease until an attorney is present.'"

Commonwealth v. Santos, 463 Mass. 273, 285 (2012), quoting

Edwards v. Arizona, 451 U.S. 477, 481 (1981). "The invocation

of the right to counsel, however, must be unambiguous."

Commonwealth v. Miller, 486 Mass. 78, 88 (2020). "'[I]f a

2 Because we conclude that the officers' warrantless entry
into the apartment and protective sweep were justified under the
exigent circumstances and emergency aid exceptions to the
warrant requirement, we need not address the defendant's
arguments that the seizure of his clothing and DNA saliva sample
were fruits of the unlawful entry and search, or that the
subsequently-obtained search warrant was invalid because it was
based on observations made during the entry.

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suspect makes a reference to an attorney that is ambiguous or

equivocal in that a reasonable officer in light of the

circumstances would have understood only that the suspect might

be invoking the right to counsel,' the police need not cease

their questioning." Id., quoting Davis v. United States, 512

U.S. 452, 459 (1994).

The police advised the defendant of his Miranda rights

before transporting him to the police station. See Miranda v.

Arizona, 384 U.S. 436, 444-445 (1966). At the station, a State

police trooper and a Lynn police lieutenant interviewed the

defendant for thirty-nine minutes. At the outset, the trooper

again advised the defendant of his Miranda rights and also

advised him of the right to a prompt arraignment. Regarding the

prompt arraignment, the trooper read an advisory that stated,

"At court a judge can appoint a lawyer for me if I cannot afford

one. At court a judge can decide to release me." After the

defendant expressed concerns about being late for work, the

trooper responded that even if he posted bail overnight the

defendant would have to appear in court on Monday morning. The

defendant asked, "So who's my lawyer?" The trooper answered,

"If you can't, we'll get to that, but right now, unless you have

a lawyer already set up, you don't have one. When you go to

court, they'll appoint one." The defendant responded, "Okay,"

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and, after a further exchange about other matters, signed the

Miranda waiver and waiver of prompt arraignment. We agree with

the motion judge that, given the context in which the statement

was made, the defendant did not unequivocally invoke his right

to counsel when he asked, "So who's my lawyer?" Rather, the

defendant was referring to the right to prompt arraignment and

asking who would represent him in court on Monday morning. Nor

are we persuaded by the defendant's argument that the trooper's

statement that "you don't have" a lawyer precluded the defendant

from knowingly, intelligently, and voluntarily waiving his

Miranda rights. The trooper clearly explained to the defendant

his rights to remain silent, speak to a lawyer before answering

any questions, and stop the questioning at any time, and the

defendant acknowledged his understanding of those rights at the

interview and signed the Miranda waiver.

3. Specific unanimity instruction. The defendant contends

that the trial judge erred by failing to give a specific

unanimity instruction because the jury were presented with

evidence of two distinct and separate acts that could have

constituted the single count of murder: (1) the defendant

holding up the victim while another man struck him with a

baseball bat, and (2) the defendant's participation in the

assault of the victim with the broomstick. Because trial

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counsel did not request such an instruction or object to it not

being given, we review to consider whether the error, if any,

created a substantial risk of a miscarriage of justice. See

Commonwealth v. Gaughan, 99 Mass. App. Ct. 74, 81 (2021).

There was no error. "[A] specific unanimity instruction

indicates to the jury that they must be unanimous as to which

specific act constitutes the offense charged." Commonwealth v.

Conefrey, 420 Mass. 508, 512 (1995), quoting Commonwealth v.

Keevan, 400 Mass. 557, 566-567 (1987). Such instruction "is

required only if the jurors could otherwise disagree which act a

defendant committed and yet convict him of the crime charged"

(citation omitted). Commonwealth v. Ramos, 31 Mass. App. Ct.

362, 366-367 (1991). "Where the Commonwealth proceeds on a

theory that the criminal act was 'a continuing course of

conduct,' however, or 'a single criminal scheme or plan carried

out consistently overtime [sic],' a specific unanimity

instruction is not required" (citation omitted). Commonwealth

v. Fan, 490 Mass. 433, 450 (2022). The murder charge brought by

the Commonwealth was based on a series of acts committed in

succession and in the same general area. Because those acts

constituted a "continuing course of conduct," no specific

unanimity instruction was required. See id; Commonwealth v.

Cyr, 433 Mass. 617, 621-624 (2001).

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4. Closing argument. Lastly, the defendant claims that

the prosecutor made certain improper statements in his closing

argument. While the Commonwealth suggests that the defendant

did not properly object to all of these statements, we need not

decide which standard of review applies to each statement,

because none amounted to error when we consider them "in the

context of the whole argument, the evidence admitted at trial,

and the judge's instructions to the jury." Commonwealth v.

Andre, 484 Mass. 403, 417-418 (2020), quoting Commonwealth v.

Felder, 455 Mass. 359, 368 (2009). While the Commonwealth is

allowed "to argue 'forcefully for the defendant's conviction,'

closing arguments must be limited to facts in evidence and the

fair inferences that may be drawn from those facts."

Commonwealth v. Rutherford, 476 Mass. 639, 643 (2017), quoting

Commonwealth v. Wilson, 427 Mass. 336, 350 (1998).

The defendant claims that there was no basis for the

prosecutor's statement that the defendant used the guitar as a

weapon against the victim. However, both a State trooper and a

forensic scientist from the State police crime laboratory

testified that the guitar seized from the apartment had a red-

brown stain on it. The forensic scientist testified that the

stain tested positive for human blood and there was a crack on

the body of the guitar. Accordingly, it was fair to infer that

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the guitar had been used as a weapon. The defendant also argues

that there was no evidence supporting the prosecutor's

assertions that the "murder couldn't have happened with just one

person," or that the defendant took part in the assault

involving the use of the broomstick to injure the victim's

rectum. Again, we disagree. The forensic scientist testified

that there was a red-brown stain on the top of the broom handle

that extended twelve inches down the broom, that the victim's

DNA profile matched the DNA profile of the broom stain, and that

a swab of the defendant's hands tested positive for the presence

of blood. Hilliard also testified that he saw the defendant

hold the victim while another man hit him with a baseball bat,

and one of the responding officers testified that he heard two

people exerting themselves before the officers entered the

building and found the unconscious victim lying with his pants

around his ankles and apparent anal trauma. Based on this

evidence, it was reasonable for the prosecutor to draw the

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inference during closing argument that the defendant

participated in the assault involving the broomstick.

Judgment affirmed.

By the Court (Blake, C.J.,
Hodgens & Toone, JJ.3),

Clerk

Entered: May 12, 2025.

3 The panelists are listed in order of seniority.

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