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SJC-11820

                  COMMONWEALTH   vs.   PETER BRUNEAU.



            Hampden.     April 7, 2015. - August 27, 2015.

 Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                              Hines, JJ.


Homicide. Mental Impairment.      Practice, Criminal, Appeal,
     Judgment.



     Indictment found and returned in the Superior Court
Department on October 1, 2008.

    The case was heard by Richard J. Carey, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Rebecca A. Jacobstein, Committee for Public Counsel
Services, for the defendant.
     Jane Davidson Montori, Assistant District Attorney, for the
Commonwealth.


    DUFFLY, J.     We are asked in this case to determine whether

a defendant who has been found not guilty of murder in the

second degree by reason of mental illness may appeal from his

conviction pursuant to G. L. c. 278, § 28, or, whether, as the
                                                                     2

Commonwealth contends, the sole avenue by which such a defendant

may seek to appeal is a petition filed pursuant to G. L. c. 211,

§ 3.

       In 2008, the defendant was indicted on a charge of murder

in the first degree for the stabbing death of the victim, George

Roy, but was repeatedly found not competent to stand trial until

2013.    At that time, having heard testimony by a medical expert

and having considered representations by defense counsel, a

Superior Court judge concluded that the defendant was then

competent.    The Commonwealth filed a nolle prosequi with respect

to so much of the indictment that charged murder in the first

degree, and after a colloquy, the defendant waived his right to

a jury trial and agreed to the entry of stipulations to numerous

facts.    The defendant's motions for a required finding of not

guilty, made at the close of the Commonwealth's case and at the

close of all evidence, were denied.    The sole defense offered by

the defendant at trial was that, at the time he committed the

murder, he lacked criminal responsibility due to mental illness.

In his closing argument, the defendant's counsel conceded that

the defendant killed the victim by "stabbing him repeatedly."

The defendant was found not guilty by reason of mental illness

and ordered hospitalized at Bridgewater State Hospital pursuant

to G. L. c. 123, § 16.    The defendant filed an appeal under
                                                                   3

G. L. c. 278, § 28, which the Commonwealth argues was

inappropriate, and we granted his application for direct

appellate review.

    We conclude that a defendant who is found not guilty by

reason of mental illness may appeal under G. L. c. 278, § 28.

We conclude also that the evidence in this case was sufficient

to support a conviction of murder in the second degree and,

therefore, that the judge did not err in denying the defendant's

motion for a required finding of not guilty.

    Facts.   We recite the facts a fact finder could have found.

On September 5, 2008, Chicopee police Officer John Provost,

responding to reports that the victim had not been at work for

several days, went to the victim's second-floor apartment in a

building on Florence Street in Chicopee to conduct a well-being

check.   Provost rang the doorbell and knocked loudly on the

front and back doors several times, but there was no answer.

After seeing an open window to the apartment, he called for a

supervisor and a fire engine.   Three other officers arrived on

the scene.   Sergeant Roy Landry and Sergeant David Heroux, the

victim's nephew, again rang the doorbell and knocked loudly on

the front and back doors but received no response.   Members of

the fire department arrived and put up a ladder to the open

second-floor window; a fire fighter gained access to the
                                                                      4

apartment and opened the back door, through which Provost and

Heroux entered.   The officers saw the defendant, who lived with

the victim, standing in the kitchen with the fire fighter.      The

defendant was wearing shorts and was sweating; a pornographic

movie was playing on a television.   The victim's automobile was

later found parked on the street outside the apartment, covered

in a layer of pollen.   According to Provost, this was unusual,

because the victim washed his vehicle frequently, sometimes as

often as daily.

    In response to questions from Heroux, the defendant

responded that he had not answered the door despite the repeated

knocking and doorbell ringing, because he had been sleeping.

When asked when he had last seen the victim the defendant said

that he had not seen the victim since Tuesday night, three days

previously, when the victim had come home with a "lover," a man

named Chet.   When Heroux again asked the defendant when he had

last seen the victim, the defendant responded that it had been

about two weeks earlier.   Reminded that he had said he saw the

victim on the previous Tuesday night, three days earlier, the

defendant said, "Oh, yeah, it was Tuesday night."   Landry asked

the defendant if he was injured, and the defendant said either,

"I got stabbed" or, "I got stab wounds also."   The defendant

pulled up his shirt and pulled down his pants to expose his
                                                                     5

groin; there were no visible injuries.

    The police officers searched the apartment for the victim,

but he was not found.    They noticed some red-brown stains on a

rug in the doorway of the victim's bedroom that appeared to be

blood.    There were no apparent blood stains in the defendant's

bedroom.    There were red-brown stains on a cushioned chair in

the living room, a pool of red-brown liquid in a corner of the

chair, and spatter stains behind and around the chair.    Police

also found red-brown stains on the stairs leading to the second

floor of the apartment building.    A screening test of the stains

on the rug and the stairs was positive for human blood.    Samples

were collected for further testing; that testing confirmed that

the stains were human blood.    Samples also were sent to the

State police laboratory for deoxyribonucleic acid (DNA) testing,

which established that the DNA matched that of the victim.

    After obtaining a search warrant, police returned to search

the defendant's apartment.     They found additional stains in the

kitchen in front of the oven and underneath a rug.    In the

defendant's bedroom, police found a hatchet leaning against a

bureau.    The bottom of the hatchet had a label with a bar code.

Police also searched the defendant's vehicle.     They found a

single cinder block in the bed of the defendant's truck.

    The next day, September 6, 2008, Chicopee police received
                                                                    6

an announcement from the Vermont State police that a body had

been found along the side of the road on the northbound side of

Interstate Route 91.   The body, with multiple stab wounds to the

abdomen,1 was wrapped in a sheet, duct tape, and a ten-foot

length of chain.   Attached to the chain was a tag with the

letter "D" in white and orange, similar to a tag from a chain

home improvement store.   Chicopee police arranged for George

Roy's fingerprints2 to be sent to Vermont, where testing

confirmed the body was Roy's.

     On their way back from Vermont, Chicopee police officers

stopped at one of the chain's home improvement stores in West

Springfield.   They gave store employees the bar code number from

the label on the hatchet found in the defendant's room, and a

description of the hatchet.   A store employee was able to

determine that two such hatchets had been purchased at that

store, one six days earlier, and one about a year previously.

The receipt for the hatchet that had been purchased six days

earlier, in cash, showed that an eight-inch square cinder block,

ten feet of zinc chain, and a pair of latex gloves had been



     1
       There is no indication that the stab wounds were inflicted
by the hatchet found in the defendant's room.
     2
       George Roy's fingerprints were on file in connection with
his application for a license to carry a firearm.
                                                                     7

purchased at the same time.   Store surveillance video recordings

showed the defendant making these purchases.

    Discussion.    1.   Right to appeal.   There is no

constitutional right to appeal from a criminal conviction.     See

Dickerson v. Attorney Gen., 396 Mass. 740, 743 n.3 (1986) ("The

due process clause does not require a State to afford any

appellate process whatsoever").   The right to appeal is granted

by statute.   See, e.g., G. L. c. 278, § 28 (appeal by persons

"aggrieved by a judgment" of District or Superior Court); G. L.

c. 278, § 33E (direct appeal to Supreme Judicial Court for

defendants convicted of murder in first degree).

    The defendant's appeal from the denial of his motion for a

required finding of not guilty was filed under G. L. c. 278,

§ 28.   General Laws c. 278, § 28, provides that a "defendant

aggrieved by a judgment of the [D]istrict [C]ourt or of the

[S]uperior [C]ourt in any criminal proceeding may appeal

therefrom to the [S]upreme [J]udicial [C]ourt."    The

Commonwealth argues that the defendant's appeal does not lie

under G. L. c. 278, § 28, because a finding of not guilty by

reason of mental illness is not a "judgment," and the defendant

is not "aggrieved" since he has not been convicted.      The

Commonwealth contends that the defendant may seek to pursue an

appeal only by filing a petition for extraordinary relief
                                                                       8

pursuant to G. L. c. 211, § 3.3

     We do not agree.    We conclude that an appeal under G. L.

c. 278, § 28, is the appropriate avenue by which a defendant

found not guilty by reason of mental illness may challenge that

verdict.

     Prior to the enactment of the Massachusetts Rules of

Appellate Procedure, we allowed a defendant found not guilty by

reason of insanity to appeal under G. L. c. 278, § 33B, from the

denial of his motion for a required finding of not guilty.     See

Commonwealth v. Curtis, 318 Mass. 584, 585 (1945) (Curtis).       At

that time, G. L. c. 278, § 33B,4 controlled the procedure for



     3
       General Laws c. 211, § 3, provides, in relevant part, "The
[S]upreme [J]udicial [C]ourt shall have general superintendence
of all courts of inferior jurisdiction to correct and prevent
errors and abuses therein if no other remedy is expressly
provided." Review under G. L. c. 211, § 3, is "extraordinary"
and is not available "for ordinary cases." Commonwealth v.
DeJesus, 440 Mass. 147, 150 (2003), quoting Commonwealth v.
Lowder, 432 Mass. 92, 94 (2000). A party seeking relief under
G. L. c. 211, § 3, must demonstrate a substantial violation of a
substantive right and harm that cannot be remedied in the
ordinary course of appeal. Commonwealth v. Negron, 441 Mass.
685, 688 n.4 (2004).
     4
         General Laws c. 278, § 33B, provided:

          "A defendant in a case of murder or manslaughter,
     or other felony . . . , aggrieved by an opinion,
     ruling, direction or judgment of the [S]uperior
     [C]ourt, rendered upon any question of law arising out
     of such case or upon a motion for new trial, but not
     upon a plea in abatement, who desires to appeal
     therefrom and whose exceptions thereto have been
                                                                      9

filing an appeal from convictions under G. L. c. 278, §§ 33A-

33G.    General Laws c. 278, § 33B, was repealed in 1979, when the

Massachusetts Rules of Appellate Procedure took effect.       See

St. 1979 c. 346, § 1.     Today, the Massachusetts Rules of

Appellate Procedure establish the procedure for filing an

appeal.     Although the rules changed certain aspects of the

procedures to be followed in filing an appeal, compare Guerin v.

Commonwealth, 337 Mass. 264, 266 (1958), with Mass. R. A. P.

8 (a), as amended, 378 Mass. 932 (1979), they "shall not be

construed to extend or limit the jurisdiction, as established by

law, of the Supreme Judicial Court."     Mass. R. A. P. 1 (b), as

amended, 421 Mass. 1601 (1995).

       2.   General Laws c. 278, § 28.   We allowed a defendant

found not guilty by reason of insanity to appeal under G. L.

c. 278, § 33B, because "the defendant was aggrieved unless there

was evidence warranting a verdict of guilty."      Curtis, supra at

585.    We must determine whether such an appeal is proper under

G. L. c. 278, § 28.    We review questions of statutory

interpretation de novo.     Sheehan v. Weaver, 467 Mass. 734, 737

(2014).


       seasonably saved shall, within twenty days after
       verdict, file a claim of appeal in writing with the
       clerk, who shall forthwith notify the district
       attorney of such claim."
                                                                     10

    a.     Judgment.   A defendant in a criminal case may appeal

under G. L. c. 278, § 28, only if the defendant is "aggrieved by

a judgment."    The concept of finality underlies the definition

of a judgment; generally, a judgment must be final to be

appealable.    See generally Crick, The Final Judgment as a Basis

for Appeal, 41 Yale L.J. 539, 552 (1932) ("The basic principle,

then, in practically all jurisdictions in this country is that

only final judgments are appealable").     See also Judiciary Act

of 1789 § 22, 1 Stat. 73, 84-85 (1789) (requiring final

judgments for Federal appeals).

    A judgment becomes final for purposes of appellate review

"when the [court of first instance] disassociates itself from

the case, leaving nothing to be done at the court of first

instance save execution of the judgment."     Clay v. United

States, 537 U.S. 522, 527 (2003).     For other purposes, however,

"finality attaches at a different stage . . . [at] issuance of

the appellate court's mandate."     Id. (noting certain

determinations under Speedy Trial Act of 1974, 18 U.S.C.

§ 3161).    "In a criminal case the [final judgment] rule

prohibits appellate review until conviction and imposition of

sentence."    Flanagan v. United States, 465 U.S. 259, 263 (1984).

See Berman v. United States, 302 U.S. 211, 212 (1937) ("[f]inal

judgment in a criminal case means sentence.     The sentence is the
                                                                    11

judgment").    The common theme is that "a 'final decision'

generally is one which ends the litigation on the merits and

leaves nothing for the court to do but execute the judgment."

United States v. Vela, 624 F.3d 1148, 1151 (9th Cir. 2010),

cert. denied, 131 S. Ct. 2152 (2011), quoting United States v.

Ray, 375 F.3d 980, 985 (9th Cir. 2004) (concluding that

defendant found not guilty by reason of insanity had right to

appeal under 28 U.S.C. § 1291).    "When a criminal defendant is

found guilty, it is unremarkable that there is no final judgment

until the defendant is sentenced; it is only at sentencing that

the criminal action terminates and 'nothing [is left] for the

court to do but execute the judgment.'"    United States v. Vela,

supra, quoting Midland Asphalt Corp. v. United States, 489 U.S.

794, 798 (1989).

    Our jurisprudence has recognized consistently that, in

general, "[i]n criminal cases, the final judgment is the

sentence."    Commonwealth v. Brown, 466 Mass. 676, 679 (2013),

quoting Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender

Registry Bd., 459 Mass. 603, 621 (2011).    See, e.g.,

Commonwealth v. Caetano, 470 Mass. 774, 777 (2015), citing

Commonwealth v. Delgado, 367 Mass. 432, 438 (1975) ("no appeal

may come before us until after judgment, which in criminal cases

is the sentence").    In the case of a defendant found not guilty
                                                                    12

by reason of insanity, however, there is no sentence because

there is no conviction.    See Commonwealth v. McLaughlin, 431

Mass. 506, 507 (2000) ("A verdict of not guilty by reason of

insanity is not a 'conviction' within the meaning of [G. L.

c. 278,] § 33E").

       A verdict of not guilty by reason of insanity is,

nonetheless, a final judgment.     When a finder of fact finds a

criminal defendant "not guilty by reason of insanity, the

docketing of the verdict amounts to a final judgment because the

criminal proceeding has come to an end and no criminal sentence

will follow."    United States v. Vela, supra.   See Mass. R. Crim.

P. 28 (a), 378 Mass. 898 (1979).    After a verdict of not guilty

by reason of insanity is docketed, there are no additional

matters for a judge to dispose of, and the "court disassociates

itself from the case, leaving nothing to be done . . . save

execution of the judgment."    Clay v. United States, supra at

527.    An acquittal solely by reason of insanity conclusively

resolves the underlying criminal proceedings, and the criminal

proceeding becomes final with the verdict.     See Curtis, 318

Mass. at 585 (allowing defendant found not guilty by reason of

insanity to appeal under G. L. c. 278, §§ 33A-33G); United

States v. Stewart, 452 F.3d 266, 272 (3d Cir. 2006).       Civil

commitment proceedings under G. L. c. 123, § 16, which follow a
                                                                   13

verdict of not guilty by reason of mental illness, are civil in

nature, not criminal.

    The Commonwealth argues that a finding of not guilty by

reason of insanity is an acquittal, and therefore not

appealable.   This contention is unavailing.   An acquittal is

also a judgment, notwithstanding the lack of a sentence.    See,

e.g., Commonwealth v. Labadie, 467 Mass. 81, 82, cert. denied,

135 S. Ct. 257 (2014).   The prohibition on appealing from an

acquittal comes not from its lack of finality, or because an

acquittal is not a judgment, but, rather, because in the case of

an acquittal, a defendant is not "aggrieved" under the statute,

and therefore may not appeal under G. L. c. 278, § 28, and the

double jeopardy clause bars the Commonwealth from any appeal.

See, e.g., Huss v. Graves, 252 F.3d 952, 956 (8th Cir. 2001),

cert. denied, 535 U.S. 933 and 535 U.S. 551 (2002) (jeopardy

attached at bench trial deciding whether defendant should be

found not guilty by reason of insanity; defendant could not be

retried).   See also Commonwealth v. Therrien, 383 Mass. 529, 532

(1981) ("It has long been accepted that the Commonwealth may not

appeal from an acquittal of a criminal defendant . . .").

    Although a finding of not guilty by reason of mental

illness is an acquittal, in the sense that it absolves a

defendant of criminal responsibility, it is unlike an acquittal
                                                                    14

because it includes a finding that the defendant committed the

criminal act.   Compare Jones v. United States, 463 U.S. 354, 363

(1983) ("A verdict of not guilty by reason of insanity

establishes two facts:    [i] the defendant committed an act that

constitutes a criminal offense, and [ii] he committed the act

because of mental illness"), with United States v. Martin Linen

Supply Co., 430 U.S. 564, 579 (1977) (Stevens, J., concurring in

the judgment) ("true acquittal is based upon the insufficiency

of the evidence to prove an element of the offense" [quotation

and citation omitted]).   If a jury has a reasonable doubt

whether a defendant committed each of the required elements of

the crime, it must find the defendant not guilty; if there is a

reasonable doubt about the defendant's criminal responsibility

at the time of the crime, then the jury must find the defendant

not guilty by reason of mental illness.   See Instruction 9.200

of the Criminal Model Jury Instructions for Use in the District

Court (2009).

    b.    Whether defendant is "aggrieved".   Where a defendant

asserts a defense of mental illness, the Commonwealth must prove

beyond a reasonable doubt both that the defendant committed the

crime and that the defendant was criminally responsible at the

time the crime was committed.   See Jones v. United States,

supra.   If the Commonwealth has not met its burden to prove that
                                                                    15

the defendant committed the crime, the defendant is aggrieved by

a verdict of not guilty by reason of mental illness.

Furthermore, although such a defendant has not been found

guilty, and has not been sentenced, a defendant found not guilty

by reason of mental illness faces harsh consequences because the

defendant is eligible for civil commitment under strict

security, where he would be confined for an indefinite period of

time.    See G. L. c. 123, § 16.   Accordingly, where a defendant

chooses to pursue a defense of lack of criminal responsibility

due to mental illness, judges are required, upon request by the

defendant, to inform the jury of the "consequences of a verdict

of not guilty by reason of insanity."    See Commonwealth v.

Biancardi, 421 Mass. 251, 251-252 (1995), quoting Commonwealth

v. Mutina, 366 Mass. 810, 823 n.12 (1975).

     Because a defendant found not guilty by reason of mental

illness has been "aggrieved by a judgment," the defendant may

appeal from that verdict under G. L. c. 278, § 28.5


     5
       We recognize that Mass. R. Crim. P. 28 (c), 378 Mass. 898
(1979), which provides for notification of the right to appeal
"[a]fter a judgment of guilty is entered," does not by its terms
require notification for defendants found not guilty by reason
of mental illness of their right to appeal. We therefore refer
the rule to the standing committee of this court for criminal
rules. See Commonwealth v. Simmons, 448 Mass. 687, 699-700
(2007).
                                                                   16

    3.   Sufficiency of the evidence.    We review a denial of a

motion for a required finding of not guilty to determine

whether, viewing the evidence in the light most favorable to the

Commonwealth, there is sufficient evidence for a rational trier

of fact to find the essential elements of the crime beyond a

reasonable doubt.   Commonwealth v. Latimore, 378 Mass. 671, 676-

677 (1979).   "We consider the state of the evidence at the close

of the Commonwealth's case to determine whether the defendant's

motion should have been granted at that time."     Commonwealth v.

Sheline, 391 Mass. 279, 283 (1984).

    "Murder in the second degree is the unlawful killing of a

human being with malice aforethought."    Commonwealth v. McGuirk,

376 Mass. 338, 344 (1978), cert. denied, 439 U.S. 1120 (1979).

"Circumstantial evidence alone may be sufficient to meet the

burden of establishing guilt."   Commonwealth v. Woods, 466 Mass.

707, 713, cert. denied. 134 S. Ct. 2855 (2014).    "[I]nferences

drawn from that evidence 'need only be reasonable and possible';

[they] need not be necessary or inescapable."     Id., quoting

Commonwealth v. Merola, 405 Mass. 529, 533 (1989).

    Here, viewing the evidence in the light most favorable to

the Commonwealth, there was sufficient evidence from which a

trier of fact could have concluded that the defendant had

committed each element of the crime, and thus that the
                                                                   17

defendant's motion for a required finding of not guilty properly

was denied.

    A fact finder could infer from the many blood stains in the

apartment that the victim had been stabbed to death in the

apartment he shared with the defendant.    The receipt from the

purchases at the home improvement store support an inference

that the defendant acquired the means to kill, and planned to

kill, the victim.   A surveillance video recording of the

defendant, recorded six days before the body was found, shows

him purchasing a hatchet identical to the one found in his

bedroom, a cinder block of the sort found in his truck, latex

gloves, and ten feet of zinc chain identical to the chain used

to bind the victim's body.    The hatchet and the chain both had

inventory labels on them with bar code numbers matching those on

the receipt associated with the defendant's purchases, which

were matched to the store's inventory.    This evidence "allowed a

rational jury to infer that the defendant had the means (one of

the tools lying around the victim's house) and opportunity to

kill the victim."   Commonwealth v. Evans, 469 Mass. 834, 843

(2014).   The evidence "not only corroborate[d] the essential

elements needed to convict the defendant [of murder] but also

link[ed him] to the crime."    Commonwealth v. Vacher, 469 Mass.

425, 440 (2014), quoting Commonwealth v. Fernandes, 425 Mass.
                                                                  18

357, 360 (1997).    See Commonwealth v. Donahue, 430 Mass. 710,

711 (2000) (sufficient evidence of murder in first degree where

human blood stains were present in bedroom, basement, and

defendant's automobile, receipts were found for purchase of

fifty-gallon plastic container and storage locker rental, and

defendant stored victim's body in identical container in storage

locker); Commonwealth v. Taylor, 426 Mass. 189, 192-193 (1997)

(sufficient evidence that defendant "deliberately set fire with

specific intent to murder his parents" where, among other

things, defendant put gasoline he bought in portable canister

day before fire).

    There was also considerable evidence that the defendant

demonstrated consciousness of guilt.   The defendant did not

answer the door in response to repeated knocking by police.     See

Commonwealth v. Toney, 385 Mass. 575, 584 (1982) (inference of

consciousness of guilt "may be drawn from evidence of flight,

concealment, or similar acts").   After the fire fighter

ultimately entered through a window and admitted the police

officers, the defendant's statements to police about when he had

last seen the victim were inconsistent.   See Commonwealth v.

Woods, supra at 715 (consciousness of guilt "includes making

false or inconsistent statements to police").

    The defendant also told officers that he had been "stabbed"
                                                                 19

or that he had "stab wounds also," although he had no apparent

injuries.   This evidence supported an inference that the

defendant was present at the time of the stabbing, and stabbed

the victim, because he had knowledge of the method of the

killing.    See Commonwealth v. Thompson, 431 Mass. 108, 114,

cert. denied, 531 U.S. 864 (2000) (sufficient evidence where

defendant assumed victim "had been stabbed even though he had

not been informed of the circumstances of [the victim's]

death"); Commonwealth v. Cordle, 404 Mass. 733, 741-742 (1989),

S.C., 412 Mass. 172 (1992) (sufficient evidence where jury

plausibly could infer defendant was present at time of shooting,

had motive for killing, and evidenced consciousness of guilt).

In addition, the defendant expressed no alarm over the blood

stains in the apartment that were readily apparent.    See

Commonwealth v. Thompson, supra (defendant's unusual behavior

included lack of inquiry as to manner of victim's death).

     Although a conviction may not "rest upon the piling of

inference upon inference or on conjecture and speculation."

Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450

Mass. 215 (2007) and 460 Mass. 12 (2011), viewing these facts in

the light most favorable to the Commonwealth, there was
                                                                20

sufficient evidence to establish that the defendant committed

each element of the murder.

                                   Judgment affirmed.
