Commonwealth v. Richard Davis.

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

20-P-1055

COMMONWEALTH

vs.

RICHARD DAVIS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A jury convicted the defendant of second-degree murder on

an indictment charging him with murder in the first degree. The

victim, Kevin Crowley, and the defendant were friends and lived

next door to each other in a rooming house located in Lynn.

There was no dispute that Crowley died from a single stab wound

to his chest inflicted by the defendant. The defendant admitted

that he stabbed Crowley, and most of the tragic episode was

recorded by a video surveillance camera located in the hallway

outside Crowley's door. The central issue at trial was the

degree of the defendant's criminal responsibility. The judge

instructed the jury on the elements of murder in the first and

second degrees, and voluntary manslaughter based on reasonable
provocation, but he declined to give an instruction on self-

defense or voluntary manslaughter based on use of excessive

force in self-defense as the defendant had requested. On

appeal, the defendant argues that the judge erred by not giving

the requested instructions, failing to give a humane practice

instruction, limiting the scope of defense counsel's redirect

examination of him, and making comments that allegedly

disparaged defense counsel in front of the jury. We affirm.

Background. The defendant and Crowley lived in adjacent

rooms on the second floor of a three-story, single occupancy

rooming house. Crowley lived in room fifteen, the defendant in

room sixteen. They sometimes watched television in the

defendant's room with other neighbors and were often joined by

Roberto Alfonso, who lived on the first floor and was the

building's manager. Crowley's room was located between the

defendant's room and the main stairway that led downstairs to

the front entrance. Both rooms had dead bolt locks that locked

from the inside and could only be opened with a key. Crowley's

door also had a peephole. The defendant had done some

renovation work in the building and was familiar with its layout

and construction. He testified that the doors were flimsy, and

the walls were thin, such that any banging or yelling would

travel from one room to the next. The defendant was also

acquainted with the building's video surveillance system that

2
included motion-activated cameras that recorded activity, but

not sound, in the common areas and outside. As noted above, one

camera was located just outside of Crowley's door and video

footage from that camera and others was admitted in evidence.

The day of the murder, August 6, 2017, was a Sunday. The

defendant's daughter, Lisa Hagan, 1 lived close by and regularly

hosted her father and friends for an early dinner on Sunday

afternoons. That Sunday was no exception. Shortly after 12

P.M., Alfonso drove Crowley and the defendant to Hagan's house.

They stopped to purchase alcohol on the way and there is no

dispute that Crowley became inebriated as the afternoon

progressed. Crowley also became belligerent and was

particularly bothered by a comment the defendant made about his

reaction when Hagan's dog vomited. Alfonso and Crowley saw the

dog get sick and almost became sick themselves. The defendant,

Alfonso, and Crowley were all military veterans. Alfonso and

Crowley's queasiness prompted the defendant to say: "You big

war heroes can't even take a little dog barf." Crowley was

offended by the comment and became angry. Alfonso testified

that Crowley "never" calmed down. As Crowley's attitude toward

the defendant worsened, the defendant became scared. At dinner,

Crowley approached the defendant from behind and muttered

1 Or Hagen; the name appears both ways in the record.

3
threats under his breath in the defendant's ear. At some point,

the defendant told Crowley that he did not want him coming back

to his room when they returned home. Later, during the car ride

back to the rooming house, Crowley continued to yell at and

threaten the defendant.

When the group arrived home, the defendant told Alfonso

that he did not want Crowley in his room because he was being

"aggressive." Alfonso replied that he would come upstairs after

he used the bathroom. Crowley and the defendant continued

upstairs to their respective rooms with the defendant walking

behind Crowley. The defendant testified that Crowley kept

screaming at him and said he would "fuck [him] up."

The defendant entered his room and locked his door but

remained worried and fearful that Crowley would come through the

door forcibly. The defendant testified that he could hear

Crowley continuing to yell and threaten him from his room and

bang on the wall. According to the defendant, Crowley said:

"I'm going to stay home from work, you know, just so we can talk

about this." Approximately thirty seconds later, Crowley left

his room, stood in front of the defendant's door, and tried to

turn the door handle. The camera recorded Crowley's actions.

He then walked down the hallway briefly, returned to the

defendant's door where he appears on the video to be yelling,

and then reentered his room.

4
About two minutes later, the camera recorded the defendant

exiting his room with a large knife in his hand. The defendant

knocked on Crowley's door and then took a step back into the

hallway. When Crowley opened the door, the defendant

immediately stepped forward quickly and stabbed Crowley in the

chest. Crowley fell backward, the defendant yelled "Leave me

the fuck alone," and then the defendant returned to his room. A

minute later, the defendant knocked on Crowley's door and

shouted at him again, but Crowley did not respond. 2 The

defendant returned to his room for another two minutes or so and

then went to get Alfonso. The defendant told Alfonso: "I

believe I killed Kevin." Alfonso immediately went upstairs to

check on Crowley. The door was unlocked. Alfonso entered the

room, saw Crowley on the floor bleeding and "gasping for air,"

and called the police. He then told the defendant to go to his

room and wait.

When the police and emergency medical technicians arrived,

Crowley was not breathing and had no pulse. He was pronounced

dead at the hospital. One of the responding officers,

Christopher Hagerty, interviewed the defendant in his room. The

defendant testified that he did not remember much about the

conversation other than asking about Crowley's condition because

2 The record does not reveal how the door to Crowley's room
shut.

5
he was worried that he had "seriously hurt him." At trial,

Officer Hagerty testified that the defendant "was loud, but he

wasn't yelling." He also described the defendant as "in a

state." 3

The defendant provided additional details about his

relationship with Crowley and the events that led to the

stabbing during his testimony. According to the defendant, he

became afraid of Crowley within one month after Crowley moved

into the room next door. At one point, the defendant testified,

Crowley had grabbed him by the neck and slammed him into a door.

Crowley generally became aggressive when he drank alcohol and,

on that particular day, the defendant felt uncomfortable and

scared of Crowley. On their return to the rooming house, the

defendant kept his distance from Crowley, and when he went to

his room he was nervous, but he believed he was sufficiently

safe. He explained that even if he thought otherwise and had

decided to leave, Crowley would have seen him through the

peephole of his door. The defendant also testified that calling

the police would not have been helpful; rather it would have

just made Crowley mad. The defendant asserted that he had no

3 Based on a prior ruling on the parties' motions in limine,
which is not challenged on appeal, Hagerty's testimony was
limited to his observations, including seeing the knife used in
the murder on the table inside of the defendant's room. He did
not testify about any statements made by the defendant.

6
intention of killing Crowley. He was just in such a state of

shock and fear that he needed to do something.

Discussion. 1. Self-defense instructions. The defendant

argues that the judge abused his discretion by refusing to

submit the case to the jury on theories of self-defense and the

use of excessive force in self-defense. It is well settled that

a judge must instruct on self-defense if the evidence, taken in

the light most favorable to the defendant, was sufficient to

raise a reasonable doubt on the issue. See Commonwealth v.

Pike, 428 Mass. 393, 395 (1998). "Whether the evidence is

sufficient to reach this threshold is often a complex

determination[,] and . . . a trial judge should err on the side

of caution in determining that self-defense has been raised

sufficiently to warrant an instruction" (quotations and citation

omitted). Commonwealth v. Ramos, 66 Mass. App. Ct. 548, 554

(2006). Where, as here, the defendant has testified, "no matter

how incredible his testimony, that testimony must be treated as

true." Pike, supra.

Viewing the evidence in the light most favorable to the

defendant, and accepting his testimony as true, there was no

basis on which the defendant was entitled to an instruction on

self-defense or use of excessive force in the exercise of self-

defense. Our case law instructs that in order to properly

invoke the right to use self-defense "[t]here must be evidence

7
warranting at least a reasonable doubt that the defendant: (1)

had reasonable ground to believe and actually did believe that

he was in imminent danger of death or serious bodily harm, from

which he could save himself only by using deadly force, (2) had

availed himself of all proper means to avoid physical combat

before resorting to the use of deadly force, and (3) used no

more force than was reasonably necessary in all the

circumstances of the case." Commonwealth v. Harrington, 379

Mass. 446, 450 (1980).

Here, the defendant's testimony established only that he

was scared, and not that he had a reasonable ground to believe

or did believe he was in imminent danger of death or serious

bodily harm. To be sure, the defendant testified that he feared

Crowley could come through his door and harm him, but the

defendant's subjective fear of harm must be objectively

reasonable and here it was not. Despite his fear, the defendant

was not in imminent danger of death or serious bodily harm when

he was behind his locked door. The defendant himself

acknowledged that he could have called for help at that point,

but he decided not to do so. As he explained, in his view,

calling the police would have made things worse. The defendant

believed that the police "would have told [Crowley] to go to his

room, [the police] would have told me to go in my room and that

would have made the situation worse." Even assuming that the

8
defendant's failure to seek assistance was somehow legitimate,

we cannot ignore the facts that while Crowley was verbally

aggressive -– and threatened to physically harm the defendant –-

Crowley was unarmed, and the defendant was the first aggressor.

The video footage was, in essence, a silent movie that

unequivocally demonstrated this to be so.

Given our conclusion that there was insufficient evidence

to support a reasonable doubt that the defendant had a

reasonable ground to believe that he was in imminent danger of

death or serious bodily harm, we need not address the remaining

two factors. That said, it is evident that should we do so, the

defendant fares no better. Armed with a knife, the defendant

opened his door, knocked on Crowley's door, and then attacked

him. Even if the defendant believed that he was not safe in his

room, a staircase to safety was to the right of Crowley's door.

Furthermore, the defendant's testimony that he feared Crowley

would see him pass by the door through the peephole, even viewed

in the light most favorable to him, does not change the fact

that the defendant failed to avail himself of all proper means

to avoid physical combat before resorting to the use of deadly

force. With regard to the amount of force, we do not question

the defendant's testimony that he only "intended" to scare

Crowley, but the fact remains -– he did not simply brandish the

knife, he plunged it into Crowley's chest.

9
Lastly, because the defendant was not entitled to a self-

defense instruction at all, he was not entitled to an

instruction on the use of excessive force in self-defense.

Commonwealth v. Toon, 55 Mass. App. Ct. 642, 643 (2002).

2. Humane practice instruction. The defendant argues that

voluntariness was a live issue at trial, and therefore, the

judge was required sua sponte to give a humane practice

instruction. We do not agree.

Prior to trial, the defendant filed a motion to suppress

the statements he made to the police at the scene in part based

on the ground that the statements were involuntary due to his

agitated state. That motion was denied. At trial, defense

counsel did not argue that the defendant's admissions to police

were not voluntarily made. Nor did the defendant ever request a

humane practice instruction. 4

As we recently explained in Commonwealth v. Tillson, 104

Mass. App. Ct. 180, 194 (2024), quoting Commonwealth v.

Bohigian, 486 Mass. 209, 219-220 (2020), "If the defendant does

not raise the issue of voluntariness, the judge has a sua sponte

obligation to conduct a voir dire only if the voluntariness of

the statements is a live issue such that there is evidence of a

4 The instruction was included in an initial submission of
requests for jury instructions but was not requested at the
charge conference, nor was there an objection to the absence of
an instruction.

10
substantial claim of involuntariness." There is no bright-line

test to determine whether voluntariness was a live issue at

trial. However, for voluntariness to be considered a "live

issue," "substantial evidence of involuntariness [must be]

produced." Commonwealth v. Gallett, 481 Mass. 662, 686 (2019),

quoting Commonwealth v. Kirwan, 448 Mass. 304, 318 (2007).

Here, the defendant argues that the filing of his motion to

suppress and his motion in limine to preclude hearsay statements

made to the officers were sufficient to make voluntariness a

"live issue." He also points to testimony provided by Officer

Hagerty that confirmed he was agitated and upset to support his

position.

Although the issue was not raised by defense counsel, the

judge was aware of it and addressed it. Before cross-

examination of the defendant commenced, the judge inquired of

the prosecutor whether she intended to introduce the defendant's

statements to police immediately after the stabbing. The

prosecutor responded: "Well, I wanted to hear what the

defendant . . . had to say during direct examination, but it's

something that I would get into on my cross examination." The

judge then correctly noted that under the case law if there was

evidence that the defendant's statements were not voluntary, he

was required to give a humane practice instruction and submit

the question of voluntariness to the jury. Although, after

11
reviewing the transcript and the ruling by a different judge on

the defendant's pretrial motion to suppress the statements the

judge made a preliminary decision that there was no substantial

evidence of involuntariness, the judge made clear that he would

give a humane practice instruction if those statements were

admitted in evidence.

As it turned out, the prosecutor solicited only one

statement during her cross-examination. She asked:

Q.: "Do you recall telling him that Kevin threw a punch at
you and he grazed your face?"

A.: "That was I was talking about two weeks before."

Q.: "So, you remember some of what you told Officer
Hagerty?"

A.: "I don't remember everything at -- at that point. You
know, I was sitting there and I was nervous. I was scared.
I don't recall everything that was said between me and the
officer."

Q.: "Do you remember saying that after Kevin threw the
punch at you and grazed your face that's when you went into
the hallway when Kevin came at you?"

A.: "No."

The exchange transcribed above does not provide a

sufficient basis for concluding that the judge should have given

a humane practice instruction. First, the defendant neither

objected nor requested that a humane practice instruction be

given in response to this testimony. Second, "emotional upset

alone does not render" a statement involuntary in the absence of

12
evidence that the defendant was acting irrationally.

Commonwealth v. Auclair, 444 Mass. 348, 355 (2005). In any

event, if there was error, there was no substantial risk of a

miscarriage of justice. See Commonwealth v. Richards, 485 Mass.

896, 914 (2020) (applying substantial likelihood standard).

To begin with, the evidence of involuntariness was not of

the type or magnitude that our cases have found results in a

substantial risk of a miscarriage of justice from the absence of

a humane practice instruction. See Bohigian, 486 Mass. at 220

(2020) (defendant arguably "wasn't fine" during questioning

where he had a visible head injury and showed signs of head

trauma). Nor is this a case involving coercive questioning or

force. Instead, the claim of involuntariness rests on the

notion that the defendant was upset on learning that he had

killed Crowley. Given these circumstances, we conclude that

there is no serious risk that the jury, had it received a humane

practice instruction, "would have concluded that the

Commonwealth failed to meet its burden of proving that the

defendant's statements to police were voluntary and therefore

disregarded them." Richards, 485 Mass. at 914. 5

5 Given our conclusion, there is no basis for the
defendant's claim that counsel was ineffective for not
requesting an instruction. See Commonwealth v. LaCava, 438
Mass. 708, 719-720 (2003).

13
3. Redirect examination of the defendant. "The scope of

redirect examination is within the sound discretion of the trial

judge. 'A defendant who claims, on appeal, an abuse of

discretion, assumes a heavy burden'" (citation omitted).

Commonwealth v. Arriaga, 438 Mass. 556, 577 (2003). The

defendant has not met his burden here.

During his direct testimony, the defendant testified at

length about his reaction to Crowley's aggressive and

threatening behavior and explained that he was nervous and

scared when he approached Crowley's door with the knife. He

also believed that calling for assistance would not have been

helpful. Thereafter, during cross-examination, the prosecutor

posed a series of questions about the options available to the

defendant when he left his room and approached Crowley's door.

Specifically, she asked whether the defendant was a runner and

whether he could have made it past Crowley's door "quite

quickly." The defendant responded: "Yes."

On redirect examination, defense counsel asked additional

questions regarding the defendant's ability to pass by Crowley's

door and run down the stairs safely. Specifically, she asked:

(1) "Are you a runner?" and (2) "how old are you, sir?" These

questions were answered. However, the Commonwealth objected

when defense counsel asked: (1) "What were you scared that

Kevin was going to do?" and (2) "When Kevin knocked and tried

14
the handle and walked away, . . . what was your feeling, at that

point, about whether he would or would not go away and stay

away." The objections were sustained. At sidebar, the judge

explained his rulings as follows:

"you've gone over all of that in your direct, how he felt
when all those things happened. . . . I didn't catch
anything that was clearly inquired in cross examination
that you were asking about. You asked a bunch of questions
that were clearly not a part of cross examination, if I
missed on one of them I mean I'd like to know, but I was
trying to enforce a scope objection. That's what I was
trying to do."

There was no abuse of discretion. Contrary to the

defendant's assertion, the questions to which objections were

sustained were beyond the scope of the topics covered during

cross-examination. Those topics focused on what the defendant

could have done instead and were not aimed at soliciting

testimony about the defendant's reasons for his actions.

Moreover, as the judge observed, the defendant had already

addressed these issues during his direct examination. As a

result, we are not persuaded by the defendant's argument that

the questions he was not allowed to ask fell within the scope of

cross-examination.

Nor are we persuaded, as the defendant asserts, that

defense counsel was foreclosed from rehabilitating the

defendant's credibility on "the decisive issues in the case."

We acknowledge that one essential purpose of redirect

15
examination is to give a witness an opportunity to explain or

correct testimony solicited during cross-examination. Here,

however, the defendant had little, if anything, to correct. As

the judge noted, the defendant had already testified about the

reasons for his actions during his direct examination.

Furthermore, as described above, defense counsel was permitted,

over the Commonwealth's objection, to ask the defendant about

his perceptions regarding any avenues of escape and

opportunities to seek intervention from others.

4. Judge's comment to the jury. After sustaining the

prosecutor's objections to defense counsel's questions as

described above, the judge explained his ruling to the jury as

follows:

"Let me explain to the jury. We generally, as you've seen,
have two rounds of questioning, direct examination, cross
examination and then if there's a desire to do so the
calling attorney, whoever called the witness, gets redirect
examination. But redirect examination is limited to the
subjects and to clarify or questioning about [sic] what was
brought out in cross examination. In redirect you can't go
back and do what you've done on direct examination. The
same is true for recross examination, you don't go back to
get –– a lawyer doesn't get to go back and kind of fix
things or deal with things or address things a second or
maybe a first time that weren't addressed, but could have
been addressed there in the earlier inquiry. So, the last
round, redirect and recross, is very limited and it's
limited by what was brought out in either cross examination
or in the other way around in the redirects then the
attorney could bring –– could talk about those things."

The defendant did not lodge an objection to any portion of

the judge's explanation. He now challenges the statement: "a

16
lawyer doesn't get to go back and kind of fix things or deal

with things or address things . . . that weren't addressed, but

could have been addressed . . . in the earlier inquiry" and

claims that it disparaged defense counsel. According to the

defendant, the jury could only have understood the comment to

mean that, in the judge's view, there was something wrong or

missing from the defendant's case. We disagree.

The comment, read in context, was not as pointed as the

defendant claims. Nor was it similar to the comments made by

the trial judge in Commonwealth v. Sneed, 376 Mass. 867, 869

(1978), on which the defendant relies. In that case, the trial

judge was admonished for his inappropriate intervention during

the questioning of a critical defense witness. The judge asked

the witness why she had not come forward earlier and threatened

her with perjury. The judge also belittled the defendant's

right to remain silent. Nothing of the sort occurred here.

We also reject the defendant's argument that the additional

comments to defense counsel regarding the improper use of

leading questions and the proper manner in which a witness could

be impeached, when taken together with the judge's explanation

about objections quoted above, undermined his right to a fair

trial. We have reviewed the entire transcript carefully and

conclude that the judge acted fairly and without partisanship

throughout the proceedings. In sum, we discern no error, let

17
alone one that created a substantial risk of a miscarriage of

justice, in the manner in which the judge conducted the trial.

Judgment affirmed.

By the Court (Vuono, Rubin &
Smyth, JJ. 6),

Clerk

Entered: August 21, 2024.

6 The panelists are listed in order of seniority.

18