Evidence, Closing Arguments, Jury Instructions, & Effectiveness of Council

(JAN. 2019)
 [Evidence, Closing Arguments, Jury Instructions, & Effectiveness of Council]


            On July 29, 2008, John Marshall was stabbed to death in a parking lot in the Roxbury section of Boston, Massachusetts. The defendant, David Copeland, was charged with murder in the first degree and armed robbery. At trial, the defendant admitted that he stabbed the victim, but made three counterarguments qualifying why he did so:

  • That he stabbed the victim because he suffered from posttraumatic stress disorder (PTSD) at the time of the killing
  • That he stabbed the victim spontaneously
  • That he stabbed the victim not because he was trying to rob him

A superior court jury convicted the defendant of felony-murder in the first degree and armed robbery. On appeal of his convictions to the Massachusetts Supreme Judicial Court, the defendant challenged:

  • The Commonwealth’s opening statement
  • The sufficiency of the evidence on the offenses of felony-murder and deliberately premeditated murder
  • The judge’s refusal to instruct the jury on felony-murder in the second degree
  • The Commonwealth’s closing argument
  • The defense counsel’s performance

The defendant also requested that the Court order a new trial or reduce the verdict to voluntary manslaughter. The Court would ultimately affirm the judgment of the superior court.


            On July 28 and 29, 2008, the defendant and two other women were smoking crack cocaine at an apartment on Regent Street in the Roxbury neighborhood of Boston, Massachusetts. They ran out of cocaine on multiple occasions, and on each occasion someone left the apartment and obtained more. By the second day, both the cocaine and money to purchase it ran out. The defendant left the apartment shortly after, wearing a white T-shirt.

            That same day a witness called the police after she saw two men fighting in a parking lot next to her apartment building on Dale Street in Roxbury. She saw the defendant appear to be “punching” the victim. Eventually the defendant, who happened to be wearing a white T-shirt, left the parking lot, leaving the victim lying on the ground injured.

            The defendant made his way back to the Regent Street apartment. On his way there, he was observed by a police officer to be sweating, bleeding, and shirtless. He was holding his white T-shirt in his hands. He informed the women from before, who were still in the apartment, that “he got someone” and that “he took care of business”. The women observed that police officers were gathering outside the home. The defendant handed one of the women cocaine, marijuana, and money, all of which were splattered with blood and made statements contemplating escape. At this point a police officer entered the apartment.

            The defendant was arrested. Police found blood containing the victim’s DNA on the defendant’s ear. Meanwhile, police and paramedics found the victim lying on his back between two parked vehicles in the Dale Street parking lot, covered in blood. The victim was identified as a crack cocaine dealer and had marijuana in his system when discovered. The victim soon after died at the hospital due to his cumulative wounds, but particularly due to an eight-inch stab wound to his heart.

            A search of the victim’s vehicle revealed crack cocaine and a hat with the defendant’s DNA on it. Police also discovered video surveillance footage of the defendant in the parking lot around the time of the killing.

            At trial, the defendant presented multiple witnesses, including a psychiatrist who had interviewed the defendant, to testify about an alleged sexual assault against the defendant that occurred in February 2008. The psychiatrist testified that the assault resulted in PTSD that affected the defendant’s mental state on the day of the killing. The defendant himself testified, admitting that he planned to give the victim marijuana in exchange for crack cocaine on July 29. However, he also testified that since he was unhappy with the terms of the deal, he attempted to back out of it the day in question. Anger over this resulted in a fight in which the defendant stabbed the victim.

            After the defense rested, the defendant moved for a required finding of not guilty on the offenses of murder in the first degree, murder in the second degree, and armed robbery. The judge denied all three motions.


            The defendant first argued before the Supreme Judicial Court that the evidence did not support a conviction of felony-murder because there was insufficient evidence of armed robbery. According to the defendant, at the close of the Commonwealth’s case there was no evidence that:

  • The defendant took money or property from the victim
  • Any of the victim’s money or property was missing
  • The defendant applied actual force against or threatened the victim
  • The defendant intended to steal from the victim

The Court determined that a rational jury could infer that the defendant intended to and did steal from the victim on July 29, and that he did so using a knife to stab the victim. In justifying their reasoning, the Court cited the statements of the defendant saying that he “got someone” and that he “took care of business” after returning to the apartment from the parking lot. The Court also cited compelling circumstantial evidence that the victim possessed drugs on July 29 that he took from the victim.

The Court added that the defendant’s consciousness of guilt further supported upholding the conviction. Again, the defendant’s statements after he returned to the apartment were cited. The defendant also attempted to dispose of the bloody drugs and money with the women. He also contemplated escape when police began gathering in front of the apartment.

The defendant also argued that the judge erred in declining to instruct the jury on felony-murder in the second degree based on the offense of larceny from the person. The Court ruled that the rational basis in the evidence to warrant the instruction was not proven. The Court justified this reasoning by stating that the facts of the case cannot support a finding that the killing occurred in the course of larceny from the person because force or the threat of force “permeated” the encounter.

The defendant thirdly contended that the Commonwealth made several improper comments during its closing argument:

  • On the defendant’s allegation that the Commonwealth improperly referred to the defendant’s medical expert as a kind of “hired gun”, the Court AGREED that the prosecution acted improperly in this regard. Nevertheless, the Court added that it was unlikely that the error influenced the jury’s final decision because it was an isolated error, made in the context of a larger, proper discussion of evidence showing weaknesses in the expert’s assessment of the defendant.
  • On the defendant’s allegation that the Commonwealth suggested that the defendant was not sexually assaulted in February 2008, the Court DISAGREED with the defense. The Court reasoned that although a prosecutor may not misstate evidence or refer to facts not in evidence in a closing argument, a prosecutor may properly attack the credibility of a witness. The Court determined that this is what the prosecutor did in that instance.

  • On the defendant’s allegation that the Commonwealth erred by suggesting that the defendant’s psychiatrist expert incorrectly examined the defendant and had an obligation to investigate other sources of information about the defendant, the Court also DISAGREED with the defense. The Court reasoned no error because the Commonwealth emphasized a lack of corroboration on-cross examination so therefore the assertions during closing argument were therefore grounded in the evidence.

  • On the defendant’s allegation that the Commonwealth improperly explained premeditation as capable of occurring on a “snap of the fingers”, the court DISAGREED with the defense. The Court stated that as a matter of law, “[n]o particular length of time of reflection is required to find deliberate premeditation and the decision may be made in only a few seconds”.

  • On the defendant’s allegation that the Commonwealth improperly suggested to the jury that crack dealers do not exchange crack for marijuana, the court DISAGREED with the defense. The Court affirmed that there was no evidence at trial to suggest that crack dealers in general do not barter, however the jury learned that the defendant told the psychiatrist expert during an interview that the defendant “would usually buy from [the victim] using cash, but on this occasion he sought to exchange marijuana for cocaine”.

  • On the defendant’s allegation that the Commonwealth erred in arguing that the defendant ran from accountability after killing the victim, the Court again DISAGREED with the defense. It argued that there was abundant evidence at trial that the defendant tried to avoid arrest and prosecution.

Lastly, the defendant argued that his trial counsel was constitutionally ineffective and these errors may have influenced the jury’s conclusions. The defendant cited two instances of ineffectiveness:

  • Counsel’s failure to move for a required finding of not guilty on deliberately premeditated murder and felony-murder at the close of the Commonwealth’s case
  • Council’s failure to object to the Commonwealth’s closing argument for the above mentioned alleged instances of impropriety

The Court rejected the legitimacy of these instances of ineffectiveness based on the implications of prior reasoning on the defense’s arguments.


            The court DECLINED entering a verdict of a lesser degree of guilt and DECLINED ordering a new trial.



Source: Commonwealth vs. David Copeland, SJC—10992


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