61 Mass. App. Ct. 474 | Mass. App. Ct. | 2004
Eighteen year old Victor Bruce was indicted by a Middlesex County grand jury for the murder of Earlyn Class, a thirty-five year old woman with whom he had had a brief stormy relationship. The murder was alleged to have been committed on September 10, 1999, when Bruce stood at the back door of Class’s house in Everett and fatally wounded her by firing four bullets through the window of her kitchen door. Trial proceeded before a Superior Court jury on charges of murder in the first degree (G. L. c. 265, § 1) and unlawful possession of a firearm (G. L. c. 269, § 10[a]). At the end, the judge left it to the jury whether to convict on either of the degrees of murder or involuntary manslaughter (the defendant maintained that he was guilty of only manslaughter). The jury returned a verdict of murder in the second degree and a guilty verdict for unlawful possession of a firearm. The defendant has appealed both judgments of conviction.
We give a condensed account of the case, thereby providing background for the defendant’s points of law.
Earlyn Class met the defendant Bruce in June, 1999, through Lynn Beasley, her next door neighbor. Beasley was dating
Class’s ardor for Brace waned before the summer’s end. We have Beasley’s testimony claiming to have heard Class tell Brace on the telephone that she had resumed her romantic relationship with Wilson. Beasley further claimed that she had discussed this with Brace who, she said, told her he still wanted to continue his relationship with Class. As a scorned lover, Brace did not acquit himself admirably. He began to harass Class with unwanted telephone calls and appearances outside her house.
There was considerable acrimony on September 9, 1999, the • day before the shooting. Wilson and one of Class’s neighbors were at her home, socializing and drinking beer on her back stoop. Without invitation, Brace arrived and asked to speak with Class. A conversation ensued between the two of them that appeared to upset Class, who eventually retreated inside the house.
Brace then recounted to Wilson sexually graphic details about his relationship with Class. By then, Class had come back outside and overheard some of the lurid conversation. She warned Bruce to “stop lying about her” and, in no certain terms, asked him to leave. Class became increasingly distressed by Brace’s crass talk and picked up a broken beer bottle in her hand, which one of the bystanders ended up taking from her. Again she told Brace to leave, and began to walk toward the nearby police station. Bruce chásed after her, attempting to block her path. Class was upset and crying. Wilson testified that he then accompanied Class back to her home. Brace continued to hang around outside the house until late that evening, when a neighbor drove him to his job at Store 24. A series of annoying telephone calls from Brace to Class continued into the wee hours of the morning.
A few minutes later, Bruce arrived outside the house. Campo testified that Bruce appeared agitated as he walked up the front steps to Class’s house. He rang the bell, pounded on the door, and waited outside. When no one answered, he went next door to Beasley’s house and pounded on her door. He returned to Class’s house, picked up a planter from the front steps and hurled it against the door, smashing it into smithereens. Bruce circled around to the rear of the house and stood on the back steps. Just then, Wilson went to the window of the second-floor bathroom and looked down. He asked Bruce what was “up” and Bruce said, “Nothing, I need to speak to Earlyn. Tell her to come downstairs. I need to speak to her. Everything is cool.” From a position at the same window, Class looked down and asked what Bruce wanted. He replied, “Everything is okay. Come downstairs.”
Class turned away from the window and headed downstairs. Wilson finished collecting his belongings and followed her down the stairs to the threshold of the kitchen. From the inside, Class reached up to unbolt the door and, according to Wilson’s testimony at trial, she pulled back the curtain that covered the door window and said, “You motherfucker.” Bruce, who was over six feet tall, fired four shots from his .38 caliber revolver. They angled downwards through the bottom glass pane of the door. Pandemonium broke loose in the house. Class’s daughter ran to her mother, who was lying on the kitchen floor, and asked her if she was alright. Class replied that she was okay and told her daughter to go back upstairs. Her daughter then ran upstairs, past Wilson, screaming to Wilson and her brother, “Mama been hit!” Class’s daughter looked out the window to see Bruce running away from the back door. Class was transported to the hospital, where she died of multiple gunshot wounds less than an hour later.
1. Exclusion of certain evidence offered to explain the defendant’s conduct. The prosecutor moved in limine seeking a ruling by the judge to prohibit defense counsel from introducing evidence that on the night before the shooting, Class purportedly possessed a firearm. Specifically, the prosecutor sought to preclude Bruce from calling two witnesses who supposedly told the Everett police that they had removed two guns from Class’s home the evening before the shooting. Defense counsel offered two theories of admissibility: (1) to corroborate Bruce’s postarrest statement (other portions of which were suppressed) that Class had pulled a gun on him the night before, and (2) as underpinning for his ultimate argument to the jury that he armed himself as a precautionary measure and harbored no intent to shoot Class. Understandably, the judge was skeptical concerning the relevancy of the evidence, as Bruce did not rely on self-defense and there was no evidence that Class was armed when she stood at the door and was shot by Bruce. Contrast Commonwealth v. Noeun Sok, 439 Mass. 428, 434 (2003), quoting from Commonwealth v. Fontes, 396 Mass. 733, 735 (1986) (a self-defense case in which the defendant could introduce evidence “of recent, specific instances of the victim’s violent conduct, known to the defendant at the time of the homicide”).
Initially, the judge declined to allow the motion and ruled that the evidence would be admissible if the prosecutor introduced Bruce’s statement that Class had pulled a gun on
In the face of his conviction for murder in the second degree, Bruce argues that he was denied the opportunity to counter the almost inescapable inference that he carried a loaded weapon to Class’s house because he intended to discharge it there, “to kill, to gravely injure someone, or to shoot up the house generally.” Proof of any of these intents was required to make out malice, an essential element of the crime of murder in the second degree. See Commonwealth v. Begin, 394 Mass. 192, 197 (1985) .
It is settled that a defendant may explain conduct that is incriminating on its face. See Commonwealth v. Papadinis, 23 Mass. App. Ct. 570, 572-573 (1987), S.C., 402 Mass. 73 (1988), and cases cited. In homicide or assault and battery cases, the defendant may offer evidence of the victim’s character for violence where the defendant asserts self-defense, but even in that instance, the defendant may do so only if there is a showing that he or she knew of the violent character before the incident in question. Commonwealth v. Connolly, 356 Mass. 617, 626, cert, denied, 400 U.S. 843 (1970). Commonwealth v. Edmonds, 365 Mass. 496, 499-500 (1974). In 1986, the Supreme Judicial Court adopted a new rule permitting the introduction of evidence of a victim’s recent, specific acts of violence, known to the defendant at the time of the homicide, to prove that the defendant reasonably believed he or she was in imminent danger. Commonwealth v. Fontes, 396 Mass. 733, 735-736 (1986) . The weakness in Bruce’s argument here is that when he mortally wounded Class, she posed no imminent threat of bodily harm to him. In addition, defense counsel admitted during the hearing in the Commonwealth’s motion in limine that the excluded evidence did not invoke any actual threat against Bruce by Class and was only a “small explanation” for his actions that night. See Commonwealth v. Carroll, 439 Mass. 547, 553 (2003) (where the excluded evidence was not relevant to
The question then is whether the exclusion of this marginally relevant testimony amounts to an abuse of discretion. See Commonwealth v. Kosilek, 423 Mass. 449, 458-459 (1996) (no abuse of discretion where the judge excluded evidence of the victim’s use of physical force while disciplining her child in light of the limited probative value of that evidence). One has a sense from the evidence that Bruce was fortunate to avoid a conviction of murder in the first degree in that the jury would not be likely to conclude that the entire incident was merely reckless conduct or an accident even if the excluded evidence had been admitted. As the Commonwealth points out in its brief, it would not explain why he fired the gun four times when Class posed no actual threat to him at the time. See Commonwealth v. Grace, 397 Mass. 303, 305-306 (1986) (to grant a new trial, a judge must find there is “a substantial risk that the jury would have reached a different conclusion had the [excluded] evidence been admitted at trial”).
Although not necessary to our conclusion on this point, it is apparent from the record that the jury did hear evidence concerning Class’s threats toward Bruce and her brandishing a broken beer bottle the night before the shooting. And defense counsel was not precluded from mentioning in opening and closing statements several explanations as to why Bruce brought a loaded firearm to Class’s house on the night in question.
2. Prior consistent statements. As a general rule, a witness’s prior consistent statement may not be admitted in evidence. See Commonwealth v. Jenkins, 10 Gray 485, 488-489 (1858); Commonwealth v. Zukoski, 370 Mass. 23, 26 (1976); Commonwealth v. Darden, 5 Mass. App. Ct. 522, 527 (1977). That rule came in play on cross-examination of Wilson, who had testified that he saw Class pull back the curtain on the kitchen door’s window
On redirect, the prosecutor sought to rehabilitate Wilson’s credibility by having him read another portion of his grand jury testimony that was consistent with his trial testimony that Class had pulled back the curtain before the first gunshot. The judge admitted this testimony over defense counsel’s objection. The judge apparently believed Wilson’s grand jury statements were admissible on a rationale of “verbal completeness” because defense counsel had already asked Wilson about other portions of his grand jury testimony. See Commonwealth v. Crowe, 21 Mass. App. Ct. 456, 478-479, cert, denied sub nom. Pirrotta v. Massachusetts, 479 U.S. 838 (1986); Liacos, Brodin & Avery, Massachusetts Evidence § 3.12, at 96-98 (7th ed. 1999). We disagree.
To the general rule of exclusion of prior consistent statements, there are, as might be expected, exceptions. If a prior inconsistent statement can be used to suggest that the trial testimony is the product of a peculiar and transient bias or prejudice of some kind, a prior consistent statement may be admitted to shore up the consistent in-court statement. See Commonwealth v. Jenkins, 10 Gray at 488-489; Commonwealth v. Zukoski, 370 Mass, at 26-27; and cases therein cited. This principle is not at play here. Wilson had testified as a witness for the prosecution both at the grand jury hearing and at the trial. He was a cooperative witness and had every reason to
The judge’s rationale for admitting the contested grand jury testimony on the basis of completeness fails to pass muster. The statement concerning the curtain was entirely separable from Wilson’s other grand jury testimony. See Commonwealth v. Pleasant, 366 Mass. 100, 103 (1974); Commonwealth v. Eason, 427 Mass. 595, 598 (1998). We conclude that the judge exceeded the range of discretion in determining that the prof-erred grand jury testimony filled necessary gaps. The prior consistent testimony was mistakenly admitted.
Because it was error to admit this evidence over the objection of the defendant, we must decide whether he was prejudiced by the admission of the prior consistent statement in evidence. In order to rule the error harmless, we must be convinced that the error did not influence the jury or that it had very slight effect. Commonwealth v. Alphas, 430 Mass. 8, 13 n.7 (1999). We believe the admission of the evidence would have had very slight effect on the jury’s verdict because it was cumulative of other evidence of the defendant’s motive and intent. The principal thrust of the defendant’s argument is that Wilson’s credibility as to what happened at the kitchen door just before the shooting was critical with respect to proof of malice. However, in addition to Wilson’s disputed testimony, there was ample other evidence from which the jury could reasonably infer that the defendant knew Class was on the other side of the door when he fired the gun. The defendant stood outside the
3. Jury instructions. The judge instructed the jury as to some of the measures by which to assess the credibility of witnesses. He explained the concept of prior inconsistent statements but failed to mention impeachment by prior omission. Defense counsel, although not having requested such an instruction, objected at the conclusion of the charge. The judge, after speaking with counsel at sidebar, indicated that he understood the nature of the objection. He read counsel the Superior Court model instruction concerning prior inconsistent statements and asserted that he had been “faithful to the spirit, and... in some respect, the language of [the model instruction].” The model instruction does not contain any reference to impeachment by prior omission. The prosecutor expressed concern that further instruction on the point would unduly highlight the matter, and the judge declined to go further “unless [counsel could cite] a case that says differently.” There was no further discussion.
The defendant now complains that the judge’s charge on impeachment by prior inconsistent statements did not include any instruction concerning testimonial assertions omitted from prior statements. The question is a close one. The defendant argues that he is not advancing a novel definition of “prior inconsistent statements.” However, with the exception of two decisions offered on the point, we have found no other relevant authorities. In Commonwealth v. Ortiz, 39 Mass. App. Ct. 70,
The other authority upon which the defendant relies, Commonwealth v. Clayton, 52 Mass. App. Ct. 198, 207 (2001), appears to be more on the mark. Clayton’s conviction was reversed on other grounds and remanded for a new trial. The trial judge in Clayton showed no partiality to the Commonwealth’s witness as the judge in Ortiz had done, but denied defense counsel’s request for an instruction on impeachment by prior omission. We directed that the retrial jurors be specifically instructed on the precise point if it was required by the evidence developed at the retrial. Because we reversed Clayton’s conviction on other grounds, however, we did not consider whether the jury instructions at the first trial, read in their entirety, were sufficient on this point and, if not, whether any error was prejudicial or harmless. Id. at 207. Therefore, the Clayton dictum does not govern the instant case.
In addition, the judge’s instruction neither misstated the case law nor prevented the jury from considering omissions as inconsistencies. It is true that the judge’s instruction did not explicate the difference between prior inconsistent statements and prior omissions. However, we have reviewed the charge as a whole and find that it accurately conveyed to the jury their role in assessing Wilson’s credibility. See Commonwealth v. Thomas, 439 Mass. 362, 366-367 (2003). The judge listed a number of factors the jurors could consider. He specifically instructed the jury that they could consider whether the witness had ever said anything different from his testimony in court. In his closing argument, defense counsel very effectively argued that when Wilson was interviewed by the State police immediately after the shooting, “he gave an account of everything
4. “Transferred intent” instruction. In instructing the jury on the third of three ways in which malice may be proved, see Commonwealth v. Grey, 399 Mass, at 470 n.1, the judge accurately tracked the Superior Court model instruction.
On appeal the defendant asserts that giving this instruction was error because there was no evidence by which the jury could find transferred intent, e.g., evidence that he intended to shoot Wilson but mistakenly shot Class instead. That being the case, the defendant’s argument, citing Commonwealth v. Fickett, 403 Mass. 194, 198-199 (1988), is that the jury’s general verdict must be voided because it is impossible to determine the theory on which the jury reached its verdict of guilty.
We disagree. Defense counsel, in opening statement and in cross-examination of Beasley, suggested that the defendant had threatened violence against Wilson, Class’s former lover. Wilson was present inside the house at the time of the killing and the defendant knew it. As we have recounted, Wilson stood perilously close to the kitchen at the time the shots were fired. Thus, the defendant’s contention that there was no evidence from which the jury could infer transferred intent fails. The question is not whether the jury convicted the defendant of murder on the wrong theory. To the contrary, we think there was a sufficient basis here for the judge to exercise his considerable discretion to answer the juror’s question on transferred intent in the manner in which he did.
5. Withholding of records. The defendant complains for the first time on appeal that the trial judge may have improperly withheld mental health records of Lynn Beasley, Class’s neighbor, who appeared as a witness for the prosecution in the instant case. While the indictments against Bruce were pending, his uncle was being prosecuted for sexually assaulting Beasley. In that unrelated proceeding, a request for records of Beasley’s treatment at a mental health facility were the subject of a discovery request in accordance with Commonwealth v. Bishop, 416 Mass. 169, 180-183 (1993). Defense counsel in the instant
Since Bruce did not “advance ... at least some factual basis which indicate[d] how the privileged records [were] likely to be relevant to an issue in the case,” Commonwealth v. Bishop, 416 Mass, at 180, and failed to complete the process at the time of trial, he waived any rights that he might have had on appeal. See Commonwealth v. Green, 52 Mass. App. Ct. 98, 102 (2001) (defendant waived double jeopardy defense that he failed to raise at time of trial).
Judgments affirmed.
The defendant has made no argument on appeal concerning the conviction for unlawful possession of a firearm and so has waived any issue in regard to that conviction. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
The applicable portion of the Superior Court model instruction on murder reads as follows:
“Malice, for purposes of murder in the second degree, also includes 3) an intent to do an act that, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death will result. Under this third meaning of malice, you must decide whether, based on what the defendant actually knew at the time (he/she) acted, a reasonable person would have recognized that (his/her) conduct created a plain and strong likelihood that death would result. In determining whether the Commonwealth has proved this third meaning of malice, you must consider the defendant’s actual knowledge of the circumstances at the time (he/she) acted.”
1 Massachusetts Superior Court Criminal Practice Jury Instructions § 2.4 (Mass. Continuing Legal Educ. 1999).
At the sidebar conference, defense counsel did state: “I don’t think there is an issue of transferred intent here. ... I wish you would just reinstruct on what deliberate premeditation is.”