Commonwealth v. Richard Mulcahy, Third.

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

22-P-506

COMMONWEALTH

vs.

RICHARD MULCAHY, THIRD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

During an unsuccessful attempt to purchase Adderall, the

defendant, Richard Mulcahy, III, stabbed the victim in the

thigh, resulting in the victim's death. After a nine-day jury

trial, the defendant was found guilty of armed robbery and

involuntary manslaughter. He appeals, challenging the

sufficiency of the evidence and claiming that the prosecutor's

statements during venire, trial, and closing arguments require

reversal. We affirm.

Background. We summarize the background of this case in

the light most favorable to the Commonwealth. See Commonwealth

v. Martin, 447 Mass. 274, 287 (2006).

Several days before the victim's death on February 13,

2019, the defendant and his girlfriend, while at the Department

of Transitional Assistance (DTA), encountered the victim and his
girlfriend. The victim and his girlfriend said that they had

thirty-milligram pills of Adderall, which they would sell for

ten dollars each. Negotiations about the purchase of the

Adderall took place over text messages and telephone calls for

the next several days, but the parties never finalized a price

or quantity for the Adderall, in part because the defendant and

his girlfriend did not have enough money to complete the sale.

On February 13, 2019, the defendant and his girlfriend

arrived at the victim's girlfriend's apartment to buy the drugs.

The defendant came to the apartment with only twenty-five

dollars in cash and a one-quarter ounce of marijuana to bargain

with. The victim handed the defendant a baggie containing pills

for the defendant to inspect, but before a quantity or price had

been agreed on, the defendant threw his money and marijuana on

the bed and told his girlfriend, "Come on, let's go," as he

began to leave the apartment with the pills.

The victim grabbed the defendant from behind and tried to

pull him back inside the apartment. The two men stumbled and

fell onto a small landing outside the apartment, where the

victim put the defendant into a headlock from behind. During

this struggle or shortly thereafter, the victim gained control

of the pills. While being held in the chokehold, the defendant

stabbed the victim twice in the thigh which resulted in his

death.

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The defendant was indicted on one count of murder in the

first degree, in violation of G. L. c. 265, § 1, and one count

of armed robbery, in violation of G. L. c. 265, § 17. At the

close of the Commonwealth's evidence at trial, the defendant

moved for a required finding of not guilty. That motion was

denied and the defendant's renewed motion at the close of all

the evidence was also denied. The jury returned guilty verdicts

for lesser included offense of involuntary manslaughter and

armed robbery. 1

Discussion. 1. Sufficiency of the evidence. The

defendant first argues that the denial of his motion for a

required finding of not guilty was error because the

Commonwealth failed to establish the elements of armed robbery.

In analyzing whether there is sufficient evidence to support a

conviction, the "question is whether, after viewing the evidence

in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt." Commonwealth v. Latimore, 378

Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S.

307, 319 (1979).

1 The defendant was later sentenced to from ten to twelve years
in State prison for involuntary manslaughter and two years of
probation with special conditions for armed robbery, which was
to be served from and after the State prison sentence.

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"The required mental state for armed robbery is intent to

steal." Commonwealth v. Pimental, 454 Mass. 475, 480 (2009).

"Armed robbery is defined as (1) larceny from a person

(2) committed while armed with a dangerous weapon and

(3) facilitated by actual or constructive force against the

person." Commonwealth v. Joyner, 467 Mass. 176, 187 n.13

(2014). The defendant contends the Commonwealth failed to

establish that he had the requisite mental state or used force

to accomplish the robbery. We address each of these in turn.

a. Evidence of intent. The specific intent to steal is a

necessary element of the crime of armed robbery. See

Commonwealth v. Griffith, 404 Mass. 256, 260 (1989). The intent

to steal must be formed before or during the assault. See

Commonwealth v. Moran, 387 Mass. 644, 646 (1982). Since "intent

is in someone else's mind . . . it can usually be ascertained

only by the external, visible circumstances." Commonwealth v.

Blake, 409 Mass. 146, 150 (1991).

Here, the Commonwealth offered sufficient evidence of

intent to steal. The defendant's intent was evidenced by, inter

alia, arriving at the apartment with less money and marijuana

than he knew the Adderall would likely cost, throwing his money

and marijuana on the victim's bed without negotiating a price

for the sale, and attempting to leave with the pills. That he

attempted to give the victim some compensation, namely the

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twenty-five dollars and a one-quarter ounce of marijuana, does

not detract from the fact that he attempted to leave the

apartment with the pills without the victim first agreeing to a

set amount of money from the defendant for and specific number

of Adderall pills. See Commonwealth v. St. Hilaire, 470 Mass.

338, 345 (2015) ("although lack of consent [from the victim] is

not an element of the offense, it is [an essential condition] of

the crime of larceny"). Taking the pills without a firm offer

of sale from the defendant, regardless of attempted

compensation, is evidence that the jury could consider when

deciding intent. Accordingly, there was sufficient evidence

that the defendant intended to steal from the victim and, thus,

sufficient evidence to satisfy the intent element of armed

robbery.

b. Evidence of force. The defendant argues that the

Commonwealth provided insufficient evidence of force because the

stabbing was not to effect his escape, but rather was an act of

self-defense that occurred after the robbery had ended. 2 To

establish the force element of armed robbery, the Commonwealth

must show that the defendant applied actual or constructive

2 The defendant also argues that the Commonwealth provided
insufficient evidence of force because the stabbing was not
applied with an intent to steal from the victim. Given our
previous discussion of intent, we are not persuaded by this
argument.

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force. See Commonwealth v. Joyner, 467 Mass. 176, 187-188

(2014). This element may be met either through evidence that

the defendant used force to accomplish the taking of the

property or through evidence that the defendant used force to

effect his or her escape. See Commonwealth v. Rogers, 459 Mass.

249, 253, cert. denied, 565 U.S. 1080 (2011). "Generally, in

Massachusetts, one who commits an armed robbery cannot assert a

claim of self-defense." Id. at 260. See Commonwealth v.

Maguire, 375 Mass. 768, 773 (1978) ("it has been held that the

right to claim self-defense may be forfeited by one who commits

an armed robbery, even if excessive force is used by the

intended victim or by any person intervening to prevent the

crime or apprehend the robber").

Here, a review of the trial testimony supports the

conclusion that the Commonwealth established sufficient evidence

of force. The undisputed facts at trial established that the

defendant stabbed the victim twice which ultimately caused his

death. While the defendant testified to the contrary, a

rational trier of fact could have found the defendant utilized

this amount of force to effect his escape. Accordingly, there

was sufficient evidence to satisfy the force element of armed

robbery. See, e.g., Rogers, 459 Mass. at 253.

The defendant asks us to view the stabbing not as part of

an attempt to escape with the pills, but instead as an act of

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self-defense that occurred after the armed robbery had ended.

But, as described above, the stabbing was designed to help

effect the defendant's escape and thus meets the force

requirement. To parse each step of the defendant's committing

armed robbery and escaping to determine that the escape was not

part of the robbery -- even if, for example, the defendant

argued that the robbery ended when, in an attempt to escape the

chokehold he or his girlfriend returned the pills to the victim

-- would require us to segment the crime of armed robbery in a

way our appellate courts have refused to do. See Rogers, 459

Mass. at 254. Furthermore, the defendant's proffered view does

not comport with the Latimore standard. Therefore, the claim is

unavailing.

2. Prosecutor's statements. Next, the defendant argues

that the prosecutor asked an unduly prejudicial question during

cross-examination of the defendant, inappropriately asked the

defendant to comment on the veracity of another witness, made

prejudicial arguments comparing an autopsy photograph of the

victim to the defendant's booking photograph during closing

arguments, and inappropriately referenced his status as working

for an elected district attorney. The defendant argues that

these errors amount to a "pattern of errors" which collectively

require reversal. We address each of these arguments in turn.

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a. Cross-examination. During cross-examination of the

defendant, the prosecutor, after receiving some nonresponsive

answers to questions regarding the defendant's actions after the

stabbing, asked him the following question: "You killed Mr.

Hickey, correct?" The question was objected to and the

objection was sustained. The defendant argues that the question

was merely designed to harass, annoy, or humiliate him. Later

during cross-examination, when the prosecutor was inquiring

about the defendant's precise location during the stabbing, the

prosecutor asked the defendant as follows: "So when [the

witness] testified, as you saw in this case, that you gentlemen

were over here in the chair area, where he saw you jabbing [the

victim], he was incorrect?" The defendant answered, "Yes." The

defendant argues that both of these questions require reversal.

The first question was objected to, so we review for

prejudicial error. See Commonwealth v. McCoy, 59 Mass. App. Ct.

284, 290 (2003). "As a general matter, trial attorneys are

allowed to pursue vigorous cross-examination. However, there

are limits." Commonwealth v. Fahey, 99 Mass. App. Ct. 304, 309

(2021). Questions which are merely designed to harass, annoy,

or humiliate go beyond the bounds of proper cross-examination.

See Commonwealth v. Johnson, 431 Mass. 535, 540 (2000). "[T]he

fact that a question may be degrading is not, by itself, a

barrier to its utterance," but such questions can only be asked

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if the prosecutor reasonably believes a helpful answer is

forthcoming and should not be asked when the question's likely

impact is simply to inflame or degrade. Commonwealth v. Murphy,

57 Mass. App. Ct. 586, 590 (2003).

Although we do not have a recording of the cross-

examination, but only a cold transcript, the question came after

a series of responses to the prosecutor's questions that might

be read to ridicule the prosecutor. The question was a non

sequitur, and counsel for the defendant contemporaneously

described it as "laced with acid." But, even assuming there was

error in asking the question, the judge sustained the objection

to the question. The defendant asked for nothing more, neither

a curative instruction nor a mistrial. We review the

unpreserved claim that striking the question was not adequate,

for a substantial risk of a miscarriage of justice. See

Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Given that the

judge struck it, we see no substantial risk of a miscarriage of

justice.

The prosecutor's question regarding the testimony of

another witness was not objected to, so we review to determine

whether there was error and, if so, whether it created a

substantial risk of a miscarriage of justice. See Alphas, 430

Mass. at 13. We hold that this question was not inappropriate.

"It is not improper for the prosecutor to point out . . . that

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there were inconsistencies between the defendant's testimony and

that of [a witness], so long as the defendant was not asked to

assess the credibility of the [witness's] testimony" (quotation

and citation omitted). Id. at 18-19. In Commonwealth v.

Richenburg, 401 Mass. 663, 673-674 (1988), the court drew a

distinction between isolated questions clarifying that the

defendant and previous witnesses' answers conflict, which do not

create a substantial risk of a miscarriage of justice, and

questions which "create an issue of credibility between the

defendant and other witnesses." Alphas, supra at 18, quoting

Richenburg, supra at 674. The question in this case falls into

the first category. The prosecutor's isolated question simply

confirmed that the defendant was stating something different

than the previous witness. Accordingly, there was no error.

b. Closing arguments. During closing arguments, the

prosecutor presented the jury with a booking photograph of the

defendant and compared it to an autopsy photograph of the

victim, both of which had already been entered into evidence.

Specifically, the prosecutor said, "Mr. Mulcahy was armed with

this knife. And he left the porch that afternoon looking like

this. Minor scrapes, uninjured. [The victim] was unarmed. And

he left the porch that afternoon looking like this. Fatal

wounds to his right thigh, blood-soaked clothing." The

defendant argues that the purpose of this presentation was to

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appeal to the sympathy of the jury and that reversal is

required. Because the admission of the photographs as evidence

is not being argued on appeal and the defendant did not object

to the prosecutor's closing argument, we review, "in the context

of the arguments and the case as a whole," whether the improper

statement and presentation of the photographs created a

substantial risk of a miscarriage of justice. Commonwealth v.

Kolenovic, 478 Mass. 189, 201 (2017). See Commonwealth v. Brum,

492 Mass. 581, 601 (2023).

A prosecutor should not play on the jury's sympathy or

emotions in order to obtain a conviction. See Commonwealth v.

Teixeira, 486 Mass. 617, 630 (2021). To that end, we do not

allow prosecutors to tell the jury "to put themselves 'in the

shoes' of the victim, or otherwise be asked to identify with the

victim." Commonwealth v. Bizanowicz, 459 Mass. 400, 420 (2011).

Where the defendant's defense at trial was that he was

acting in self-defense, highlighting the lack of injury to the

defendant while emphasizing the victim's wounds was appropriate.

Even if we were inclined to consider this statement and

presentation improper, where the photographs were already

entered into evidence and the jury were free to consider them

during deliberations, the prosecutor's efforts to draw the

jury's attention to them did not create a substantial risk of a

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miscarriage of justice. 3 Similarly, the prosecutor's statements

framing the context in which the jury should carefully consider

the photographs also did not create a substantial risk of a

miscarriage of justice.

c. Statements during venire. During jury empanelment, the

prosecutor introduced himself to the prospective jurors as

working for the "elected [d]istrict [a]ttorney." The defendant

argues that, by mentioning that he was employed by the elected

district attorney, this was an inappropriate representation to

the jurors that the prosecutor represents the citizens of the

Commonwealth against the defendant. The defendant is correct

that prosecutors are not allowed to insinuate that they work for

or represent the jury as citizens of the Commonwealth. See

Commonwealth v Scesny, 472 Mass. 185, 200 (2015) ("the

prosecutor's characterization of his role as representing the

'citizens' ran the risk of suggesting that the prosecutor was

representing the jurors-as-citizens against the defendant").

Because there was no objection at trial, we review to determine

if any misconduct created a substantial risk of a miscarriage of

justice. See Alphas, 430 Mass. at 13. See also Commonwealth v.

Silva, 455 Mass. 503, 514 (2009).

3 We note that defense counsel requested that one booking
photograph be admitted into evidence.

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Neither the rationale for nor the purpose of the

prosecutor's statement that he worked for the elected district

attorney is obvious, though presumably the prosecutor thought

there was something useful about the formulation as he used it

twice. Given the risk presented by stating that the prosecutor

is elected by the people, it would have been better left unsaid.

Nonetheless, even assuming there was error, something we need

not and do not decide, we are not persuaded that it created a

substantial risk of a miscarriage of justice.

d. Constellation of factors. Lastly, the defendant argues

that the prosecutor's conduct we have described amounted to a

"pattern of errors," which he argues created a substantial risk

of a miscarriage of justice. To be sure, we do not look at the

prosecutor's conduct in a vacuum and instead view each claimed

error by looking at their combined effect. See Commonwealth v.

West, 44 Mass. App. Ct. 150, 151 (1998). Simply put, the

prosecutor's conduct does not amount to a "pattern of errors,"

and they do not collectively create a substantial risk of a

miscarriage of justice. Accordingly, we are unpersuaded by this

argument.

Conclusion. As there was sufficient evidence to convict

the defendant of armed robbery and no trial conduct which

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requires reversal, we affirm the defendant's convictions.

Judgments affirmed.

By the Court (Rubin, Neyman &
Walsh, JJ. 4),

Assistant Clerk

Entered: January 19, 2024.

4 The panelists are listed in order of seniority.

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