In 2003, an Essex County jury convicted the defendant of murder in the first degree. The defendant appealed. He argues that the trial judge erred by failing specifically to inquire of the venire their understanding of the presumption of innocence pursuant to G. L. c. 234, § 28, by allowing a portion of a witness’s grand jury testimony to be read to the jury for substantive purposes, and by instructing the jury on consciousness of guilt. He also argues that his counsel was ineffective for failing to move for the revocation of a witness’s order of immunity, and asks us to reverse his conviction pursuant to G. L. c. 278, § 33E. Because we conclude that there are no errors requiring reversal of his conviction and discern no reason to exercise our power under G. L. c. 278, § 33E, we affirm the defendant’s conviction.
Facts and procedure. We recite the facts the jury could have found, reserving certain details for our discussion of the issues raised.
The evidence against the defendant was introduced through the testimony of Miguel Rodriguez and Javier Laboy. Both had been gang members, had extensive criminal records, and had cooperation agreements with the Commonwealth.
In the late evening of October 28, 2000, the victim was driving around Lawrence with Rodriguez. The pair decided to attend a Halloween party at a home on Washington Street. At about midnight, as the victim pulled his car up in front of the house, the defendant hit the back of the car and said to Rodriguez, “Step out of the car. Let’s knuckle up.” Rodriguez got out of the car. At first he thought the defendant wanted to fight, but then realized that the defendant was joking.
He and the defendant spoke. The defendant then asked Rodriguez what he was doing with the victim, stating, “Take [the victim] out of here before I blast him.” Rodriguez got back in the car and told the victim to “take off.” Rodriguez saw the defendant put his arm through the car’s window and heard three shots. The mortally wounded victim drove away.
The victim had been shot twice in the left arm. One of the bullets went through his arm into his chest. The victim died at a hospital of a gunshot wound to the abdominal aorta, which caused hemorrhaging. Two bullets were recovered from the victim, one from his left arm and one from the muscles in his abdominal wall. No gun was ever found.
In the meantime, Laboy had been at the Halloween party and had seen the defendant arguing with the victim and Rodriguez. He heard shots and ran out of the house and across the street to his automobile. As he was about to drive away, the defendant asked him for a ride. Once in the vehicle, Laboy asked the defendant what had happened. The defendant stated, “I just shot somebody, can you get me out of here.” The defendant also asked Laboy to take him “out of town.” Laboy refused and instead took the defendant to a home on Front Street.
Discussion. 1. Presumption of innocence inquiry. The defendant argues that the judge erred when, during the jury empanelment process, he failed to question potential jurors specifically about the presumption of innocence to which a defendant is entitled. At trial, defense counsel did not object to this omission
A defendant is entitled to a fair trial. See Commonwealth v. Graves,
States are free to “allow or require questions not demanded by the Constitution.” Ristaino v. Ross,
“The first paragraph of G. L. c. 234, § 28, requires a judge, on request, to examine each prospective juror ‘to learn whether he is related to either party or has any interest in the case, or has expressed or formed an opinion, or is sensible of any bias or prejudice, therein .... In a criminal case such examination shall include questions designed to learn whether such juror understands that a defendant is presumed innocent until proven guilty, that the Commonwealth has the burden of proving guilt beyond a reasonable doubt, and that the defendant need not present evidence in his behalf’ ” (emphasis added).3
If a motion is filed, it is mandatory that a judge inquire into the subjects set forth in § 28. Commonwealth v. Sheline,
Here, before the empanelment process began, the judge stated that the defendant denied the Commonwealth’s allegations against him and that he had asked to have a trial so that a jury could determine whether the Commonwealth could prove the charges against him beyond a reasonable doubt. He told potential jurors that he was going to ask them questions because he had to be sure that the defendant had a jury capable of deciding the case only on the evidence. He introduced the parties and read the list of potential witnesses. He then asked the venire, inter alla, whether they knew anyone whose name he had read, whether they had any bias toward any participant in the case, whether they had a
The judge then began an individual voir dire of the potential jurors who had responded to the initial questions. Some of them were excused. The judge told the remaining venire that he would conduct a second round of questions individually, reiterated that the goal was to find an impartial jury, and told them not to discuss the charge among themselves so as not to compromise the level of impartiality they had achieved up to that point. They also were told in advance the issues about which they would be questioned at the individual voir dire. One of the questions was whether the potential juror could decide the case based only on the evidence.
The defendant identifies no specific injury in his challenge pursuant to G. L. c. 234, § 28, as required by G. L. c. 234, § 32. Instead he argues that this court has impliedly held that a judge has no discretion not to ask a question concerning the presumption of innocence. Commonwealth v. Keohane,
Even assuming that the judge’s omission of a question concerning the presumption of innocence was error, there was no substantial likelihood of a miscarriage of justice. The presumption of innocence is closely tied to the State’s burden of proof beyond
Moreover, in his final instructions to the jury, the judge, inter alla, reiterated the Commonwealth’s burden to prove the defendant’s guilt beyond a reasonable doubt, explained that it meant that the defendant received every presumption of being not guilty, and stated that the defendant was presumed innocent throughout the trial.
In these circumstances, where the defendant has not demon
2. Admission of Laboy’s grand jury testimony. In his grand jury testimony, Laboy stated that the defendant said that he had shot someone. Approximately ten months later, Laboy signed a statement whereby he recanted his entire testimony, stating that he was impaired by marijuana and cocaine the evening of the murder and that he gave someone else a ride from the party.
Before trial, the judge held a hearing on the Commonwealth’s request that Laboy be immunized from prosecution if he testified at trial to the events concerning his giving the defendant a ride after the murder. See G. L. c. 233, § 20E (a). At the hearing, Laboy stated that he could not recall whether the defendant said that he shot someone. He also stated that he was invoking his right to remain silent pursuant to the Fifth Amendment to the United States Constitution. The judge granted Laboy immunity.
On voir dire, Laboy was questioned about the events of the evening of the murder. He was able to recall many specific details but claimed he was unable to recall his testimony to the grand
The Commonwealth moved to have the relevant part of the grand jury testimony admitted substantively. The defendant objected, stating that it would violate his right to confrontation under the Sixth Amendment to the United States Constitution. The judge found, inter alla, that Laboy’s lack of memory was a recent fabrication. When Laboy testified at trial and claimed a lack of memory about the defendant’s statements the evening of the murder, the pages of Laboy’s grand jury testimony concerning the defendant’s statements that he shot someone and wanted Laboy to take him out of town were read to the jury as a prior inconsistent statement.
The judge placed no limit on the cross-examination of Laboy, who did not refuse to answer any of the questions defense counsel asked. Concerning the incriminating statements, counsel elicited that Laboy had offered three different versions of the night of the murder and asserted the defense theory about why the story changed. Defense counsel implied, in essence, that La-boy’s version of events that were part of his grand jury testimony
The defendant argues that the judge erred in allowing the grand jury testimony to be read to the jury. He argues that the testimony falls within “the ‘core class’ of statements that are always testimonial” and, as there was no possibility to “cross-examine the integrity of the statement,” it was inadmissible pursuant to Crawford v. Washington,
In Crawford, the United States Supreme Court stated that admitting testimonial out-of-court statements as evidence violates the confrontation clause of the Sixth Amendment to the United States Constitution unless the declarant is available at trial or the declarant is unavailable to testify but the defendant had an opportunity to cross-examine the declarant. Crawford, supra at 59 n.9 & 68. See Commonwealth v. Fordham,
The admission of Laboy’s testimony also was consistent with the requirements of Commonwealth v. Daye,
In addition, as discussed, Laboy did not deny his testimony to the grand jury. See id. at 742. He recalled events to which the statement related, including the events of the evening until the defendant asked him for a ride and so much of the grand jury testimony as it related to where he took the defendant that evening. Commonwealth v. Daye, supra at 73 (recollection of events essential to effective cross-examination). Laboy also did not refuse to answer questions defense counsel posed to him, Commonwealth v. Amirault,
3. Grant of immunity. Although Laboy testified under a grant
These arguments have no merit because “[w]e have held, without qualification, that a defendant ‘has no standing to argue that the testimony of . . . purportedly immunized witnesses [is] the product of improper grants of immunity.’ ” Smith v. Commonwealth,
“[T]he statutory procedure for a grant of immunity is designed to accommodate the witness’s rights and the State’s need for evidence. The statute is simply not addressed to the interests of defendants.” Smith v. Commonwealth, supra. Subject to the approval of the court, it is the purview of the prosecutor to seek a grant of immunity, see Commonwealth v. Curtis,
The defendant’s reliance on Commonwealth v. Steinberg,
4. Consciousness of guilt instruction. Within one or two days
The defendant argues that it was error for the judge to instruct the jury, over objection, on consciousness of guilt. Relying on Commonwealth v. Toney,
“It is well settled that evidence of flight may be introduced to show consciousness of guilt.” Commonwealth v. Carita,
At trial, the focus of the discussion concerning whether a consciousness of guilt instruction was appropriate was on the defendant’s arrest in the Dominican Republic. However, there was other evidence supporting consciousness of guilt. Laboy testified that the defendant fled the scene not only by getting into Laboy’s car and asking for a ride, but also by asking Laboy to take him out of town. Under the holding in the Toney case, this alone was enough to permit a consciousness of guilt instruction. Com
5. General Laws c. 278, § 33E. We have reviewed the entire record as well as the defendant’s claims of error pursuant to G. L. c. 278, § 33E, and we discern no reason to reduce the verdict or grant the defendant a new trial.
Judgment affirmed.
Notes
The defendant did not testify at trial. His defense was that he was being framed by a gang called the Latin Gangster Disciples, of which at least Rodriguez and Laboy’s brother were erstwhile members, and that the two witnesses against him were lying to get help from the Commonwealth with various criminal charges. Through cross-examination the defendant showed that, over time, the pair had changed their stories about the events that night, that only two shots were fired, that fingerprint evidence did not tie the defendant to the crime, and that there was no evidence that the shots fired were at a very close range. He emphasized that there was no evidence against the defendant other than the testimony of the two witnesses. He also called one witness, an emergency medical technician, who testified that, while he was tending to the victim at the scene, he asked the victim if he knew who shot him and the victim said that he did not.
The defendant’s argument on appeal is made pursuant to G. L. c. 234, § 28. The defendant’s motion for a juror voir dire stated that it was brought pursuant to Mass. R. Crim. P. 20,
The last two sentences of G. L. c. 234, § 28, including the sentence pertinent
The other questions concerned whether jurors could be impartial in light of the defendant’s Hispanic ethnicity, graphic testimony or photographs, evidence of gang affiliation, and witnesses who were granted immunity or had criminal backgrounds.
In attempting to support a claim that he suffered an injury, the defendant argues, quoting Commonwealth v. Pinckney,
The judge stated, “Now the first principle . . . has to do with a concept that we have discussed before, and that is the fact that this defendant is presumed at the outset of his trial, to be not guilty. You will recall I said to you
The following, in pertinent part, is the grand jury testimony that was read to the jury:
Q.\ “When the [car] door opened, what happened? . . .”
A.: “[H]e got in my car, he asked me for a ride.”
Q.: “Did you look at the person?”
A.: “Yes.”
Q:. “Who was it?”
A.: “Some guy ... I know from the street, named Pito Caco [an alias of the defendant].”
Q.: “How long was it after you got in your car before [the defendant] got in?”
A.: “Two seconds, three seconds.”
Q.: “Did you make any observations of him once he got in?”
A.: “No.”
Q.\ “Did he leave the door open or did he close it?”
A.: “He closed it.”
Q:. “How long after he got in before he closed it?”
A.: “He closed it as soon as he got in the car.”
Q.: “What did he say to you?”
A.: “He says, ‘Give me a ride.’ ”
Q.: “When he says ‘Give me a ride,’ what did you say?”
A.: “I said, ‘Where are you going?’ ”
Q.: “What did [the defendant] say?”
A.: “He says, ‘Take me home’ and then at that point I told him, ‘What happened,’ I says. ... I says, ‘I heard the gunshots.’ ”Q.: “So you, just so we can go slowly here, you asked him ‘what happened? I just heard gunshots’?”
A.: “Yes.”
Q:. “When you asked him ‘what happened, I just heard gunshots.’ Did [the defendant] answer you?”
A.: “Yes.”
Q.\ “What did he say to you?”
A.: “He said, . . . T just shot somebody, can you get me out of here?’ ”
Q.: “When he said, 7 shot somebody, can you get me out of here,’ how long was it between when you heard those shots before [the defendant] told you, ‘I shot somebody, can you get me out of here?’ How much time between those two things?”
A.: “I was already on the road whenever he told me that.”
Q.: “How long was . . . that after you left the party?”
A.: “That was like, it couldn’t have been far, right in the same street. . . .” Q.: “The party was on?”
A.: “Yes.”
Q.: “And you went to your car immediately when you heard the gunshots, correct?”
A.: “Yes.”
Q:. “And how long were you in your car before [the defendant] got in your car?”
A.: “Like two seconds.”
Q.: “Now, where did you take him?”
A.: “I took him over to George’s house. ... He told me to give him a ride out of town.”
Q.: “When he told you to give him a ride out of town, what did you say to him?”
A.: “I said, ‘No. I’ll give you a ride wherever you want to go right now.’ ... He told me he wanted to go over to George Cordero’s house.”
Laboy also gave a statement to police on October 30, 2000, that included the defendant’s incriminating statements.
A transcript of a telephone call from the victim’s brother to Rodriguez was admitted for the limited purpose of assessing Rodriguez’s credibility. The import of that call for the defense’s theory about Laboy’s motive for the first version of events is that the call occurred before Laboy went to give his statement to police.
Laboy’s grand jury testimony was not the only evidence against the defendant. Commonwealth v. Daye,
In support of this argument the defendant relies on the court’s statement in Commonwealth v. Toney,