The Massachusetts Supreme Judicial Court yesterday affirmed the murder conviction against a man who killed his girlfriend’s four-year-old son in 2003. The name of the case is Commonwealth v. Durand.
The victim and his twin brother lived with their mother in a basement apartment in Somerset. The defendant was the mother’s boyfriend and often stayed overnight in the apartment. Evidence at trial established the defendant liked the victim’s twin but did not like the victim. The defendant considered the victim to be too clingy with his mother and mocked the victim for wetting his pants. According to witnesses, the defendant’s bullying behavior sometimes reduced the victim to tears. On October 23, 2003, the defendant was babysitting the victim and his twin. When the victim wet his pants, the defendant ordered him to stand in the corner of the room as punishment and refused to allow him to use the bathroom. The defendant also called the victim “piss pants” and threw a toy shark at his face (which was witnessed by another roommate of the house). Shortly thereafter, the defendant told the roommate that the victim had fallen down the stairs and was acting weird. After the defendant reported that there was something “seriously wrong” with the victim, the roommate found the victim lying in bed with his eyes rolled back in his head. An ambulance was called and EMTs were unable to resuscitate the victim, who died at the hospital.
The police commenced an investigation and interviewed the defendant for six hours. He denied throwing anything at the victim and made inconsistent statements about the victim falling down the stairs. The defendant repeatedly denied killing the victim and later asked the roommate not to mention he had thrown the toy shark at the victim. After the medical examiner determined the victim had died from a blow to his stomach (which had caused his pancreas to be torn in half), the defendant was arrested and charged with murder. He was convicted by a superior court jury.
The trial was littered with mistakes made by the prosecutor. The defendant’s interview with the police had been recorded and the judge allowed parts of the video to be shown to the jury. However, there were certain sections of the video that the judge ordered to be redacted (hidden from view). Despite the judge’s redaction order, the prosecutor showed the jury video of the defendant admitting he had previously pushed the victim’s brother. The video was also edited in such a way that after the police told the defendant the victim had died, the picture then immediately showed footage from the beginning of the interview during which the defendant and the officers were laughing. Although the prosecutor agreed not to show this “looping” of the video to the jurors, he did so anyway. Finally, the judge ordered the prosecutor to redact a question from a detective to the defendant regarding whether the defendant had kicked the victim’s brother. Despite the court order, the prosecutor showed the video to the jury. The defendant objected to the prosecutor’s repeated violations of the judge’s orders and moved for a mistrial. Instead, the judge told the jury to disregard the evidence and allowed the trial to continue. The Supreme Judicial Court concluded the trial judge’s curative instructions were proper. While acknowledging that the Commonwealth bore the responsibility of abiding by the judge’s order, the SJC ruled that the defendant had not been prejudiced by the prosecutor’s repeated mistakes.
The Court also determined the prosecutor’s “unfair” closing argument had not unfairly prejudiced the defendant. During his closing, the prosecutor said the defendant had not told the police he threw the toy shark at the victim. The prosecutor’s statement was false, as the defendant had admitted to throwing the shark during a statement to the police that had been suppressed. The SJC said the prosecutor’s argument unfairly suggested the defendant had withheld information (suggesting a consciousness of guilt). While expressing “concern with such unfair tactics,” the Court declined to reverse the defendant’s conviction as a result of the prosecutor’s sleazy (and false) closing argument.
The defendant was sentenced to serve life in prison without the possibility of parole.