Thе defendant was indicted for mayhem and assault and battery by means of a dangerous weapon (a shod foot) in connection with a beating in Chelsea on February 9, 1997. The defendant’s first trial ended in a mistrial after the jury reported that they were unable to reach a verdict. The defendant was retried
On appeal the defendant alleges (1) that the trial judge violated his constitutional right to present a defense by excluding evidence of the codefendant’s independent motive to commit the crimes, which evidence had been admitted at the first trial; (2) that the prosecutor denied the defendant a fair trial by inviting inference from the absence of the excluded evidence in the course of his cross-examination of the codefendant, Carlos Ramirez, and in his closing argument; and (3) that trial counsel was ineffective. The Appeals Court affirmed the conviction in an order and unpublished memorandum pursuant to its rule 1:28. See Commonwealth v. Carroll,
1. Background. The jury at the second trial could have found the following facts. At about 3 a.m. on February 9, 1997, the victim, after spending the night drinking in several establishments, was walking to the home of a friend in Chelsea, where he had arranged to spend the night. When he was a few doors away from his friend’s home, he heard a car door closing behind him. Turning, he saw a black Mazda RX-7, an automobile that
Officers Bernard Grayson and Michael Nee of the Chelsea police departmеnt arrived at the house within five minutes. Grayson asked the victim if he knew who had done this to him and he replied that it was the defendant and a Hispanic male whom he did not know. He described the Hispanic male and said that he wore baggy white pants and a red, white, and black jacket. He also described the defendant’s car. The victim was taken by ambulance to a hospital. As a result of the beating, he suffered a broken nose, а broken and shattered left cheekbone, and a broken left orbital bone. His left eye had to be surgically removed. He also suffered a laceration on his right knee that required stitches.
At about 4:50 a.m. on February 9, Chelsea police stopped a vehicle matching the description given by the victim. They sent a message by radio for Officers Grayson and Nee, who arrived within a few minutes. Grayson asked the driver, whom he recognized as the defendant, to step out of the car. He noticed blood on the defendant’s sneakers. The defendant and his passenger, Carlos Ramirez, were both arrested and taken to the Chelsea police station. The defendant’s sneakers were removed, tagged as evidence, and sent to a State police laboratory for testing. A State police chemist who conducted enzyme prоfile tests on the blood from the right sneaker (the left had an insufficient amount for testing) and on blood samples from the victim, the defendant, and Ramirez, testified that the blood on the toe of the defendant’s right sneaker did not come from either the defendant or Ramirez, and that it was consistent with the victim’s blood. The police did not notice any blood on Ramirez’s footwear or his clothing, and therefore did not seize anything from him. They did nоtice that Ramirez had fresh
The defendant testified that at about 3 a.m. on February 9, 1997, as he was driving Ramirez home from a movie that they had seen together, the victim flagged him down. He said that the victim, whom he recognized, had come up to the window of his car and asked him if he had any cocaine. He said that he did not. They talked for a few minutes. The victim then asked whether he had change for a twenty dollar bill, because he was still going to shop for drugs but wanted to have the correct change. The defendant pulled all the bills from his pocket, approximately eighty dollars, and held them in his left hand, which was resting on or near the steering wheel. When the defendant reached for a pen in the glove compartment to write down his telephone number for the victim, the victim grabbed the bills and fled. The defendant testified that he was not particularly upset because he knew the victim’s family and was confident that he could get the money back. Neither the defendant nor Ramirez pursued the victim, and he continued to drive Ramirez home.
As they were turning a comer at a speed of less than five miles per hour and decelerating, a рedestrian crossed the street ahead of them. Ramirez suddenly jumped out of the car and approached the pedestrian, whom the defendant immediately recognized as the victim. The victim turned and fled down an alleyway and Ramirez chased after him. The defendant testified that he drove his car up the block looking for the two men. He parked his car, then he heard screaming, which led him to where Ramirez was kiсking and hitting the victim. The defendant testified that the victim’s blood got on his sneakers as he stepped over him to intervene and pull Ramirez away. The victim then got up and ran off. The money was never recovered.
2. Excluded evidence. At the start of the second trial the prosecutor filed a motion in limine to exclude certain testimony of Ramirez that had been admitted at the first trial. At the first trial Ramirez testified that, six months bеfore the February 9 incident, the victim had approached him while he was playing basketball and asked if he had any drugs to sell, or if he knew anyone who did. Ramirez, annoyed at being interrupted, told him he had none. The victim then left. At the end of the game, Ramirez noticed that his belongings were missing. He concluded that the victim was the only person who could have taken his belongings. A day or two later he saw the victim who, on seeing Ramirez, flеd. Shortly afterward Ramirez met one of his friends with a necklace that belonged to Ramirez, and had been one of the items taken. Ramirez learned that his friend had bought it from the victim.
Ramirez had testified at the first trial that this prior event flashed through his mind when the victim took the defendant’s money on February 9, and that he had determined to beat the victim the next time he saw him. When he saw the victim crossing the street a few minutes later, he became so enraged that he leapt out of the defendant’s car and proceeded to beat and kick the victim.
In support of his motion in limine, the prosecutor argued that evidence of Ramirez’s motive constituted prior bad act evidence against the victim that could not properly be used to impeach him. The prosecutor also argued that the incident was too remote in time to be relevant. The defendant argued that the evidence was relevant to show Ramirez’s motive and state of mind, and to show that the victim and Ramirez knew one another. The judge ruled that the reasons advanced by the defendant did not go to any live issues in the case, and she allowed the motion in limine.
3. Right to present a defense. The defendant argues that the exclusion of evidence of Ramirez’s motive to beat the victim violated his right to present a full defense under thе Sixth
The defendant relies on a narrow line of cases in which convictions were reversed because a defendant was precluded from presenting evidence, including motive evidence, that some other person committed the crime. See, e.g., Commonwealth v. Jewett,
The defendant contends that the evidence of Ramirez’s motive was necessary to explain to the jury why Ramirez would have acted alone in assaulting the victim. The right to call witnesses and present a defense under the Sixth Amendment and art. 12 is not absolute. In the face of “legitimate demands of the adversarial system,” this right may be tempered according to the discretion of the trial judge. Commonwealth v. Edgerly,
The central issues in the case were whether the defendant was liable as a principal, and whether he was liable under a theory of joint venture. To obtain a conviction of the defendant as a principal for the crime of assault and battery by means of a dangerous weapon, the Commonwealth was required to prove that the defendant intentionally kicked the victim. See Commonwealth v. Appleby,
There is no requirement that joint venturers share a motive for the success of the venture. Motive is not an element of proof under the theory of joint venture. Evidence of motive may be admitted if it “tends to establish the issue” or “contradicts a link in the chain of proof.” Commonwealth v. Weichell,
Moreover, the evidence could distract and confuse the jury in their task of deciding whether the Commonwealth met its burden of proving that the defendant intended to kick and beat the victim, or that he knew of Ramirez’s intent to kick and beat the victim and was willing to assist Ramirez, if necessary. The judge did not abuse her discretion by excluding evidence of Ramirez’s motive. See Commonwealth v. Rosa,
4. Prosecutor’s cross-examination and closing. The defendant next argues that the prosecutоr interfered with his right to a fair trial by repeatedly inviting inferences during his cross-examination of Ramirez and in his closing argument about Ramirez’s motive to beat the victim, the very matter that he had succeeded in excluding from evidence. “A prosecutor is barred from referring in closing argument to matter that has been excluded from evidence, Commonwealth v. Burke,
On direct examination, defense counsel asked Ramirez how he came to know the defendant, and Ramirez said that they had met through Ramirez’s older brother, who had beеn a friend of the defendant when they were in school together. He elicited from Ramirez that he “got mad” when the victim took the defendant’s money. On cross-examination the prosecutor elicited from Ramirez that he was “not a good friend of [the defen
In his closing argument, defense counsel did not refer to Ramirez’s motives except to say: “He told you how it happened. He told you what he did, what was going through his mind.” The prosecutor argued in this closing: “Consider what you’re hearing; that [Ramirez] was mad because money was taken from someone else that he didn’t even know very well. And the person that should have been mad, the person who the money was taken from [the defendant], wasn’t even going to sweat it. Money taken right out of his hand. Don’t worry about it. Doesn’t make any difference.”
Viewing the prosecutor’s closing argument in its entirety, Commonwealth v. Earltop,
However, given the strength of the Commonwealth’s case and the collateral nature of the motive evidence, the prosecutor’s misconduct did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Azar,
5. Assistance of counsel. The defendant argues that counsel was ineffective for (a) failing to object to the portion of the prosecutor’s closing argument discussed in Part 4, supra\ (b) failing to ask the judge to reconsider her ruling on the Commonwealth’s motion in limine after the prosecutor allegedly opened the door to the excluded evidence; and (c) failing to object to certain hearsay statements of the victim.
Becаuse there was no objection to the prosecutor’s closing and because we have concluded that the prosecutor’s argument did not create a substantial risk of a miscarriage of justice, trial counsel’s failure to object to the prosecutor’s closing argument cannot have created a substantial risk of a miscarriage of justice and therefore cannot have constituted ineffeсtive assistance of counsel. See Commonwealth v. Randolph,
There is no merit to the argument that counsel should have asked the judge to reconsider her ruling on the Commonwealth’s motion in limine. Although the prosecutor may have asked
Finally, the defendant argues that counsel was ineffective for failing to object to certain hearsay statements of the victim. The victim’s statement to his friend on being helped into the house, crying, “Please help me. Help me. My eye. They beat me. They beat me,” made under the sway of the exciting event, undoubtedly would have been admitted as an excited utterance. See Commonwealth v. Young,
Similarly, the victim’s statements to police shortly after the incident qualified as excited utterances. However, as those statements took on an historic character and lost their spontanеity, counsel objected and the judge sustained the objection. Whether counsel should have objected sooner is a more difficult question. If some testimony was admitted that should not have been, it was cumulative of other testimony and there was very little of it. The evidence would not likely have created a substantial risk of a miscarriage of justice, given the strength of the Commonwealth’s case.
Judgment affirmed.
Notes
The judge, the prosecutоr, and defense counsel were the same at both trials.
The victim’s sister picked up his clothes at the hospital. She found no money in the pockets.
Contrary to the defendant’s claim about the significance of the excluded evidence, he never referred to Ramirez’s motive in his closing argument at the first trial, but instead concentrated on painting a picture of the victim as an unreliable witness, much as he did at the second trial.