Commonwealth v. KirklandCommonwealth v. Kirkland
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us
Homicide. Identification. Evidence, Identification, Photograph, Expert opinion, Third-party culprit. Witness, Expert. Constitutional Law, Assistance of counsel. Practice, Criminal, Assistance of counsel, New trial, Capital case.
Indictments found and returned in the Superior Court Department on June 9, 2011.
The cases were tried before Tina S. Page, J., and a motion for a new trial, filed on September 26, 2016, was heard by Michael K. Callan, J.
Merritt Schnipper for the defendant.
Joseph G.A. Coliflores, Assistant District Attorney, for the Commonwealth.
On appeal, the defendant raises three principal arguments. First, he argues that his trial counsel were ineffective because they failed to present expert testimony on the impossibility of the defendant matching eyewitness descriptions of the perpetrator due to his hairstyle. Second, he asserts that they were ineffective for failing to present expert testimony on eyewitness misidentification, based on environmental factors and impermissibly suggestive photographic array procedures used by police. Third, the defendant arguеs that the trial judge erred in excluding certain third-party culprit evidence on the basis that it did not provide a “substantial connecting link” between the third party and the victim‘s murder, and that the judge who denied his motion for a new trial (motion judge) erred in his evaluation of the defendant‘s ineffective assistance of counsel claim, where the defendant presented additional third-party culprit evidence that was not presented at trial. The defendant also argues that each of these errors
We discern no reversible error in our review of the defendant‘s direct appeal or the postconviction motion for a new trial. Having thoroughly examined the record, we also conclude that there is no reason to grant relief under
1. Background. a. Facts. We summarize the facts that the jury could have found at the defendant‘s trial, reserving certain details for our discussion of the legal issues.
At around noon on a bаlmy Saturday, April 30, 2011, Darryl King was giving the victim a haircut at a Springfield barbershop when the defendant, wearing a black sweatshirt with a hood (“hoodie“), black T-shirt, jeans, and black gloves, walked backwards into the barbershop. The hood was pulled “over his head,” but King noticed that the defendant‘s hair was braided. The defendant turned around, and King made eye contact with him, noticing his eyes were red. King asked the man whether he wanted a haircut. The defendant said nothing as he pulled out two firearms, one at a time, from the front pocket of the hoodie. Seeing the guns, King said, in part, “Don‘t shoot me, man.” The defendant began shooting inside the barbershop at around 12:04 P.M.2 King was shot eleven times but survived.3 The victim was shot four times and succumbed to his injuries.
Rodney Ball, who was at a convenience store next door, heard the shots, left the store, and saw a Black man with medium-brown skin, standing five feet, seven inches to five feet, eight inches tall, in jeans and a black hoodie with the hood “on his head,” leaving the barbershop and walking “briskly” towards Montrose Street. Local and State law enforcement were dispatched to the barbershop and directed to look for a “suspect dressed in dark clothing,” including a black hoodie, with a “slim build, running from the scene” down Montrose Street and toward Burr Street.
The defendant entered a house on Burr Street through the back door and encountered Lekeanna Carter styling Carolyn Wright‘s
Meanwhile, Carter and Wright fled upstairs with Carter‘s baby, leaving the defendant downstairs. While they were upstairs, the defendant left the house and got into the open trunk of a gray Chevrolet Impala that had backed into the driveway. As the driver attempted to leave, State and local law enforcement surrounded the vehicle. The trunk оpened and, at approximately 12:16 P.M., the defendant began shooting at police, hitting State police Trooper Stephen Gregorczyk in his bulletproof vest. Police returned fire, wounding the defendant. Law enforcement then pulled the defendant, wearing dark-colored pants and sneakers, from the trunk and confiscated a Taurus pistol from him. The defendant was taken into custody, transported to the hospital, and hospitalized for his injuries.
Police secured the Burr Street house and, after obtaining a search warrant, discovered a pair of black gloves and a black firearm - later identified as a Ruger pistol - stuffed “between the cushion and the armrest” of a reclining chair in the living room. The Ruger had “no rounds in the weapon or in the magazine.”4 Behind the recliner, police found “an item of black clothing on the floor” that matched the description of the black hoodie worn by the barbershop shooter. Investigators also collected evidence from the driveway, including a pair of black jeans, a second pair of jeans, and Nike sneakers.
A few hours after thе shooting, police interviewed King in the hospital, took a statement from him, and showed him an array of eight frontal view photographs, from which he selected the defendant‘s photograph as the barbershop shooter. This array was also shown to Ball, who selected two photographs, including one of the defendant, as “possibly” being the person he saw leaving
Police also took a statement from, and conducted an array with, Wright that afternoon. Wright was only “[fifty] percent” sure that she recognized, from the frontal view array, the defendant as the man with the gun inside the Burr Street house but identified him based on his eyes and confirmed the identification from a profile view array, this time also recognizing his “cornrow” hairstyle. Carter also gave a statement to police that day, describing the man at the house as having dark skin and wide eyes. At trial, she further recalled the defendant, the man she saw at the house, being average height and slim but with a bit of muscle.
A State police ballistics expert conducted test firings with the Taurus pistol confiscated from the defendant and the Ruger pistol recovered from the reclining chair. He then compared these firings with shell casings recovered from the barbershop and the driveway. Certain shell casings from the barbershop matched the Ruger pistol, while others matched the Taurus pistol.5 Shell casings recovered from the driveway also matched the test firings from the Taurus pistol fired by the defendant while he was in the trunk of the car.
Samples from the Ruger pistol, black sweatshirt, and gloves recovered from the living room of the Burr Street house were submitted to the State police crime laboratory (crime lab) for deoxyribonucleic acid (DNA) testing. Analysis of the interior of the gloves revealed a complex mixture of four profiles, including one major DNA profile that
b. Procedural history. A grand jury indicted the defendant on sixteen separate counts, including murder in the first degree.9 Prior to trial, the defendant moved to suppress King‘s and Ball‘s identifications, arguing that the police used an “impermissibly suggestive identification procedure” by using a photograph of the defendant with a distinctive braided hairstyle different from the hairstyles of the men in the other photographs in the array; the witnesses were primed to identify the defendant as the barbershop shooter because the defendant had appeared in media reports “in the days leading up to the shooting” because of his escape from State prison; and the witnesses “had a limited opportunity to observe the assailant.” After a three-day hearing, the judge, who was also the trial judge, denied the suppression motion, finding that the photograph of the defendant used in the police array was “not so singularly distinctive” that it was impermissibly suggestive and that mere exposure to the defendant‘s imаge in the media was not grounds for suppression.
The defendant was tried before a Superior Court jury in May and June of 2013. At trial, the defendant sought to introduce
The defendant timely appealed and was appointed postconviction counsel. Following several unsuccessful motions and changes in postconviction counsel, the defendant filed a motion for a new trial, which was denied, after an evidentiary hearing, on September 27, 2021.10 The denial of that motion and his direct appeal were consolidated into this single appeal.
2. Discussion.
“Where, as here, an appeаl from the denial of a defendant‘s motion for a new trial has been consolidated with a direct appeal from a conviction of murder in the first degree, we review both under
a. Cornrows. Several eyewitnesses who identified the defendant as the barbershop shooter and the man at the Burr Street house described him as having braided hair, specifically cornrows. The defendant argues that trial counsel provided him with ineffective assistance by failing to introduce photographs showing him without cornrows in the weeks leading up to the barbershop murder and present expert testimony on hair growth. Having presented this argument in his motion for a new trial, he also argues that the motion judge erred in denying him a new trial on these grounds.
“In conducting this review, we ‘accord tactical decisions of trial counsel due deference.‘” Don, 483 Mass. at 704-705, quoting Commonwealth v. Evans, 439 Mass. 184, 195 (2003), cert. denied, 540 U.S. 923 (2003). “Unless such a decision was manifestly unreasonable when made, we will not find ineffectiveness.” Don, supra at 705, quoting Evans, supra at 195-196. “[O]nly strategy and tactics which lawyers of ordinary training and skill in the criminal law would not consider competent” rise to the level of manifestly unreasonable (quotation and citation omitted). Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), S.C., 478 Mass. 189 (2017).
B. Motion for a new trial. “‘A motion for a new trial is addressed to the sound discretion of the trial judge,’ who may grant a new trial ‘if it appears that justice may nоt have been done‘” (alteration omitted). Commonwealth v. Jacobs, 488 Mass. 597, 600 (2021), quoting Kolenovic, 471 Mass. at 672. “We review a decision on a motion for a new trial for an abuse of discretion,” ascertaining whether the denial “resulted from ‘a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives.‘” Jacobs, supra, quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
“Where a judge conducts an evidentiary hearing, we ‘accept the judge‘s findings where they are supported by substantial evidence in the record‘” (alteration omitted). Jacobs, 488 Mass. at 600, quoting Commonwealth v. Velez, 487 Mass. 533, 540 (2021). “When, as here, the motion judge did not preside at trial, we defer to that judge‘s assessment of the credibility of witnesses at the hearing on the new trial motion, but we regard ourselves in as good a position as the motion judge to assess the trial record.” Jacobs, supra, quoting Commonwealth v. Perkins, 450 Mass. 834, 845 (2008).
ii. Lay testimony and photographs. Two sets of photographs of the defendant are in question - with Tiara Galbreath on April 10, 2011, and with Chelsea Blake on April 22, 2011. The photographs were taken at the State prison where the defendant was incarcerated and from which the defendant escaped on April 24, 2011. At trial, defense counsel presented a letter to the judge from the defendant, discussing his disagreement with the decision not to introduce the Blake photographs11 to demonstrate that he did not have cornrows at least one week before the shootings.
Defense counsel explained that they reached this decision after “a lot of back and forth” with the Commonwealth and discussion among themselves and with the defendant. Were they to introduce a photograph of Blake and the defendant taken at the prison, the Commonwealth wanted to raise the defendant‘s prison escape and opportunity to change his appearance in the eight days between the photograph and the shootings. In response to the parties’ positions at sidebar, the trial judge indicated that she was “not going to permit the photograph to be introduced absent permitting the Commonwealth to explain the circumstances under which it was taken and . . . what could have happened between April 22 and April 30.” Simply put, defense counsel did not want that information to come in and opted not to pursue that line of inquiry.12
Any error made by trial counsel by not pursuing further lines of inquiry that reinforced the defendant‘s escape while potentially sowing some doubt as to what hairstyle he wore - when such evidence already had been introduced and eyewitness testimony impeached on cross-examination - did not, therefore, result in a substantial likelihood of a miscarriage of justice.
At the evidentiary hearing on the motion for a new trial, one of
Counsel also testified that he and co-counsel “felt pretty good about the state of the evidence” they presented on the cornrows matter, which included a video from May 1, 2011 - the day after the shootings - of the defendant in the hospital, taken by a defense investigator, who also testified that he did not observe the defendant to have cornrows or braids of any kind that day, and the defendant‘s booking photographs, to argue that the defendant did not and could not have had cornrows on the day of the shootings.13
Although the defendant was clearly disappointed in his counsel‘s decision not to call Blake to the stand, “[t]he decision ‘whether to call a witness is a strategic‘” one, Jacobs, 488 Mass. at 602, quoting Commonwealth v. Morales, 453 Mass. 40, 45 (2009), especially insofar as evaluating the witness‘s credibility and preserving the integrity of the defense, see Jacobs, supra. In a sidebar discussion on the penultimate day of trial, defense counsel noted that, while the defendant wanted them “to call further witnesses on the issue of braids,” they had discussed the issue and “madе the decision, as experienced trial attorneys, to not present more evidence on this subject.” The trial judge confirmed that they had “reviewed all of the pros and cons with respect to calling additional witnesses and . . . discussed that thoroughly with [their] client.”
iii. Expert testimony. “The decision to call, or not to call, an expert witness fits squarely within the realm of strategic or tactical decisions,” and so “we evaluate whether the decision was ‘manifestly unreasonable’ at the time it was made” (citation omitted). Commonwealth v. Ayala, 481 Mass. 46, 63 (2018). At the evidentiary hearing on the motion for a new trial, the defendant called two expert witnesses: Joy Talbot, a barber instructor for the Department of Correction and member оf the State Board of Registration of Cosmetology and Barbering, and Frederick Smith,14 a previously licensed barber who was incarcerated with the defendant in State prison and cut his hair during this period. Talbot testified that hair grows, at most, one-half inch per month, and cornrowing hair requires a hair length of at least one and one-half inches - meaning hair cut with the shortest clipper attachment would require at least three months of growth before it could be cornrowed - but that as little as one-half inch of hair is needed to attach cornrow extensions. Talbot also testified that, when cornrows are removed, the hair may retain an indentation from the pattern. She examined the photographs of the defendant with Galbreath on April 10, 2011, and opined that, while “[i]t is very difficult to tell, because [the defendant‘s] type of hair would stretch a little bit,” his hair was likely too short to be
cornrowed at that time. As to the Blake photographs from April 22, 2011, she thought the defendant‘s hair appeared “a little bit shorter,” thus “it might be more difficult” to cornrow, but it was “hard to tell.” Finally, Talbot examined photographs of the defendant in his hospital bed on May 6, 2011. She concluded that the defendant‘s hair was too short to cornrow at that point, yet she could not determine whether he recently had removed cornrows. Furthermore, it was “hard to say” whether the defendant‘s hair could have had extensions, that it was “a little short, but not totally impossible,”
Frederick testified that he cut the defendant‘s hair with the shortest clipper attachment, one-sixteenth of an inch, approximately every two weeks for “a few months” while they were incarcerated together, beginning sometime in 2010 or 2011. From his perspective, the hair length needed to be “[a]t least three to four inches” to cornrow and that would have taken the defendant “[a]t least six months” to grow out, but Frederick also conceded that he did not know how to cornrow hair and could not recall when he last gave the defendant a haircut.
The defendant argues that, had the jury heard Talbot and Frederick‘s testimony, they would have discredited King‘s identification of the defendant as the barbershop shooter, along with testimоny from Wright, Gregorczyk, and Springfield police Officer Patricia Capoza that the defendant had cornrows when they saw him at the Burr Street house. The testimony of these expert witnesses is not the “smoking clippers” that appellate counsel makes it out to be, however; as the motion judge noted, neither Talbot nor Frederick was able to say definitively how long the defendant‘s hair was and, thus, whether he could have had cornrows on the day of the barbershop shooting.
Furthermore, although trial counsel conceded that he and co-counsel did not investigate expert testimony “on whether the hair shown . . . was susceptible to braiding or cornrowing” and that such testimony “couldn‘t have hurt,” the defense also presented video and photographic evidence from their investigator to counterbalance the Commonwealth‘s eyewitness testimony that the defendant had braids and was the barbershop shooter - images that the Commonwealth conceded in their closing portrayed his hair as “extremely tight to his head,” so tight “that you can see the outline of where the hair goes.”
At trial, defense сounsel challenged the identification of the defendant as the barbershop shooter and as the intruder at the Burr Street house by cross-examining King, Wright, Gregorczyk, and Capoza about seeing a man with cornrows.15 For
example, defense counsel pointed out that, given that King was a barber,
neighborhood, while Wright similarly recalled the defendant‘s “big and scary” eyes.
Given the lack of conclusive testimony on the defendant‘s hairstyle offered by Talbot and Frederick at the evidentiary hearing on the motion for a new trial, the extent to which defense counsel challenged the evidence presented on the defendant‘s hairstyle at trial, and the extensive evidence connecting the defendant to the barbershop shooting, including the damning ballistics and DNA evidence, discussed infra, we “conclude that the proffered testimony would have been unlikely to have changed the jury‘s conclusion.” Don, 483 Mass. at 707. Talbot was unable to determine definitively that the defendant‘s hair was too short to cornrow or attach cornrow extensions, and Frederick neither knew how to cornrow nor could testify as to when he last cut the defendant‘s hair to establish its length on the day of the shootings. Failing to call such experts, therefore, did not amount to “a substantial likelihood of a miscarriage of justice.” See id. at 704.
b. Eyewitness identification. The defendant next argues that trial counsel ineffectively assisted him by failing to present expert testimony on the unreliability of eyewitness identification in support of his motion to suppress King‘s identification of the defendant as the barbershop shooter, as evidence at trial, and in support of his proposed jury instruction on the fallibility of eyewitness
Specifically, the defendant argues that expert testimony would have called into the question the accuracy of King‘s identification based on (i) “impermissibly suggestive identification procedure[s]” used by the police when presenting King with a photographic array and (ii) various environmental conditions under which King saw the barbershop shooter that can lead to mistaken identification. Having raised these arguments in his motion for a new trial and presented such testimony at an evidentiary hearing,18 the defendant further argues that the motion judge erred in denying a new trial on these grounds.
We review the defendant‘s ineffective assistance of counsel claims “for a substantial likelihood of a miscarriage of justice.” Don, 483 Mass. at 704. We also “review a decision on a motion for a new trial for an abuse of discretion” and “defer to that judge‘s assessment of the credibility of witnesses at the hearing on the new trial motion” (citation omitted). Jacobs, 488 Mass. at 600. Because the motion judge was not the trial judge, however, “we regard ourselves in as good a position as the motion judge to assess the trial record” (citation omitted). Id.
i. Photographic array procedures. Prior to trial, the defendant sought to suppress King‘s identification of him as the barbershop shooter, arguing that the array procedure was unduly suggestive because only the photograph of the defendant in the array featured a man with braided hair — a photograph that had been circulated by the media to publicize the defendant‘s recent escape from prison. At the motion for a new trial stage, the defendant also submitted that the police presented the photographs to the defendant in an impermissibly suggestive way by not adhering to
A. Distinctiveness. In support of the motion to suppress and at trial, the defense called the Springfield police detective who developed the frontal view array. The detective testified on standard photographic array procedures and the process that he used. From the detective‘s perspective, the frontal view phоtograph of the defendant depicted him with “[s]hort black hair that‘s close to his head,” and so he compiled seven other frontal view photographs that had the same hairstyle and “[v]ery similar forehead[s],” from a computer-generated selection based on the defendant‘s age, race, ethnicity, skin color, height, and weight.19 The detective also noted that King would have signed a protocol form that contained a warning that some features shown in a photograph, such as hairstyle, may change.
King testified, at both the motion to suppress hearing and at trial20 that, while he thought the shooter was wearing braids, he also saw the shooter‘s entire face, including his red eyes, and that he recognized him immediately as the defendant — a young man he had seen on the news recently and who had grown up in the neighborhood. The trial judge, denying the motion to suppress after an evidentiary hearing, determined that King made the identification “as a result of [his] proximity to the defendant on April 30 at the barbershop“; having seen the defendant‘s “facial features and braided hair,” King “immediately recognized him as a person from the neighborhood who was a friend of his son‘s and also as the man who recently escaped from prison.”
On this point, that the photograph of the defendant in the array was unduly suggestive because he is the only person with braided hair, the proffered expert testimony would not have affected the trial judge‘s denial of the motion to suppress. The expert merely posited that King, as a Black barber, may have noticed the cornrows in the photograph better than, for example, a white police officer less familiar with hairstyles, especially culturally Black hairstyles. Having reviewed the frontal view photographic array shown to King, we agree with the trial judge that the array is hardly suggestive; the defendant‘s “hair style is not distinctively different from the others,” as the featured braids are barely,
We conclude that, even with such expert testimony, there was no likelihood that the trial judge would have suppressed King‘s testimony, given King‘s emphasis on distinguishing physical traits of the shooter — including his eyes, as well as his hair — and King‘s prior familiarity with the defendant. See Commonwealth v. Thornley, 406 Mass. 96, 100 (1989) (“A witness‘s unequivocable testimony that he was not relying on a distinctive feature will considerably neutralize any suggestiveness in the photographic array“). Because the proffered expert testimony would not have changed the outcome of the motion to suppress King‘s identification, the evidence of King‘s identification of the defendant in the array as the barbershop shooter would still have gone to the jury.
Furthermore, we cannot say that the failure of the defendant‘s trial counsel to call an expert witness to testify at trial as to the potential suggestiveness of the defendant‘s hairstyle in the photographic array was likely to have influenced the jury‘s conclusion, see Don, 483 Mass. at 704, given King‘s identification of the defendant based on his facial features and familiarity from the neighborhood, as well as the physical evidence against the defendant, including the DNA on the gloves and sweatshirt and the gun recovered from the defendant in the trunk of the car that matched the ballistics evidence collected from the barbershop. Any error, therefore, did not create a substantial likelihood of a miscarriage of justice. Id.
B. Presentation. Defense counsel also elicited testimony, at both the motion to suppress hearing and at trial, from two of the State police troopers present for King‘s array-based identification to describe how the photographs were shown to King and how he made his selections. The photographs were shown to King “one by one,” during which he put four to the side. Then, he picked out two from the four, and finally, he selected the defendant‘s photograph as the person who shot him in the barbershop.21 While some of the troopers present knew the defendant, the troopers
This court has emphasized that “the absence of [a double-blind] procedure” and “the choice of a simultaneous rather than a sequential display of photographs shall go solely to the weight of the identification, not to its admissibility.” Commonwealth v. Silva-Santiago, 453 Mass. 782, 797, 798-799 (2009). In this case, while police did not conduct a strictly double-blind, sequеntial array, they did take precautions to promote accuracy, on which they testified at the motion to suppress hearing. On this point, therefore, additional expert testimony would not have changed the outcome of the motion to suppress, and King‘s identification would have still gone to the jury.
Furthermore, we cannot say that failure to call an expert witness to testify at trial as to the potential suggestiveness of the array‘s presentation to King was likely to have influenced the jury‘s conclusion. See Don, 483 Mass. at 704. The array was not unduly suggestive, and there was more than ample evidence identifying the defendant as the barbershop shooter; thus, there was no substantial likelihood of a miscarriage of justice. See id..
ii. Environmental conditions. The defendant argues that, had trial counsel presented expert testimony on the environmental conditions (also referred to as estimator variables) that increase the likelihood of a mistaken identification, then King‘s identification of the defendant as the barbershop shooter would have been suppressed or, in the alternative, the testimony would have affеcted the jury‘s evaluation of King‘s identification at trial. We are not persuaded.
At the evidentiary hearing on the motion to suppress, the defendant‘s trial counsel challenged the accuracy of King‘s identification based on these conditions — his short exposure time to the shooter under extremely stressful conditions; the likelihood of his fixating on the weapons, as opposed to the face of the person holding them; and the risk of unconscious transference due to his familiarity with the defendant from the community and media reports of the defendant‘s recent escape from prison. In his motion to suppress, the defendant argued that King “had a limited opportunity to observe the” barbershop shooter, given how quickly events unfolded and the shooter‘s face being at least partially obscured by the hoodie. At the suppression hearing, defense counsel further elicited from King that he saw the defendant‘s
At trial, defense counsel further attacked King‘s identification of the defendant as the shooter, both on cross-examination and in closing argument. They emphasized how King‘s recollection of the shooter‘s features was based on viewing his face, partially obscured by the hoodie over his head, again for a “fraction of a second,” not to mention the lack of description of any physical features in King‘s statement to police. Defense counsel also impeached King‘s credibility by pointing to various pieces of testimony, such as what King said to the shooter, recognizing him from the community, and various clothing items worn by the shooter, that did not appear in his contemporaneous statement to police, as well as his contradictory testimony before the grand jury that the shooter was not wearing a black T-shirt in addition to the black hoodie.
As to the expert testimony‘s potential effects at trial, the motion judge correctly noted that the testimony had the potential to be a double-edged sword for the defense, pоtentially helping the defendant‘s case on the one hand but hurting it on the other. The various effects on the accuracy of identification due to stress, time, familiarity with the defendant, and the display of weapons would apply differently to different witnesses — several of whom identified the defendant after observing him under different conditions with different levels of prior familiarity, or absence thereof.
Most importantly, there was incredibly damning physical evidence unrelated to this expert‘s testimony, including ballistics evidence that connected the barbershop shooting to the firearm found in the possession of the defendant, the defendant‘s DNA found inside gloves that matched the description of the shooter‘s gloves, DNA found inside a sweatshirt that matched the shooter‘s sweatshirt, and the gunshot residue on the gloves and the black sweatshirt. In sum, overwhelming evidence identified the defendant as the barbershop shooter.
Finally, at the time of trial, expert evidence on eyewitness identification was still being developed and was not commonly introduced at trial; defense counsel did not have the benefit of our opinion in Commonwealth v. Gomes, 470 Mass. 352, 367, 376 (2015) (Gomes I), which recognized evolving research on eyewitness testimony
c. Third-party culprit evidence. The defendant argues that the trial judge improperly excluded proffered evidence that a third-party culprit — another man from the neighborhood, Trevin Smith — was the barbershop shooter. He also argues that the motion judge, when presented with additional third-party culprit evidence, failed to properly consider it and erroneously denied the motion for a new trial on that ground. We review each argument in turn.
As this court has explained, “[a] defendant may introduce evidence that tends to show that another person committed the crime or had the motivе, intent, and opportunity to commit it” (citation omitted). Silva-Santiago, 453 Mass. at 800. Indeed, “[w]e have given wide latitude to the admission of relevant evidence that a person other than the defendant may have committed the crime charged.” Id. at 800-801. “If the evidence is ‘of substantial probative value, and will not tend to prejudice or confuse, all doubt should be resolved in favor of admissibility.‘” Id. at 801, quoting Commonwealth v. Conkey, 443 Mass. 60, 66 (2004), S.C., 452 Mass. 1022 (2008).
Nonetheless,
“this latitude is not unbounded. The limitations are twofold. First, because the evidence is offered for the truth of the matter asserted — that a third party is the true culprit — we have permitted hearsay evidence that does not fall within a hearsay exception only if, in the judge‘s discretion, the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other substantial connecting links to the crime” (quotations and citation omitted).
Silva-Santiago, supra. “Second, the evidence, even if it is not hearsay, ‘must have a rational tendency to prove the issue the defense raises, and the evidence cannot be too remote or speculative.‘” Id., quoting Commonwealth v. Rosa, 422 Mass. 18, 22 (1996). Because “the exclusion of third-party culprit evidence is of a constitutiоnal dimension,” we examine it independently. Id. at 804 n.26. If the evidence was improperly excluded, then we determine “whether the error was harmless beyond a reasonable doubt.” Conkey, supra at 70.
At trial, the defendant first sought to introduce testimony from Smith‘s long-time girlfriend, Karen Fuller,23 in support of a third-party culprit defense that Smith was the barbershop shooter. After a voir dire of Fuller, the trial judge found that Fuller‘s testimony on what Smith was wearing (a black hooded sweatshirt), his hairstyle (braids), and seeing him in a car in the neighborhood on the same day as the barbershop shooting was “not enough of a substantial connecting link . . . to permit the introduction of third-party culprit evidence.” The judge permitted Fuller to testify, however, as to “what she did” on the day of the shootings “but not what . . . Smith said to her over the telephone.”24
The defendant asserts that the trial judge erred in her ruling. Indeed, when denying the introduction of third-party culprit evidence, the trial judge conflated the “substantial connecting link” limitation required to admit a certain type of evidence — otherwise inadmissible hearsay, see Silva-Santiago, 453 Mass. at 801 — with the general limitation on all proffered third-party culprit evidence — that it “must hаve a rational tendency to prove the issue the defense raises, and the evidence cannot be too remote or speculative,” id., quoting Rosa, 422 Mass. at 22. Quoting Rosa, however, the trial judge went on to say that the evidence was too speculative to prove that Smith was the barbershop shooter. For
Although the trial judge erred in part of her reasoning, the defendant still presented, through Fuller‘s testimony, the evidence he sought to admit — Smith‘s hairstyle (including a photograph of Smith with braids, as he appeared on the day of the barbershop shooting); attire (black hooded sweatshirt); and whereabouts on the day of the shootings. As to Smith‘s alleged “flight from the scene,” the defense called the trooper who took Fuller‘s statements. The trooper testified that Fuller described Smith as being “hot and sweaty” when she saw him on the day of the shootings. The defense also argued their third-party culprit theory at closing. For these reasons, any error by the triаl judge was “harmless beyond a reasonable doubt.” See Conkey, 443 Mass. at 70.
The defendant also appeals from the denial of his motion for a new trial on these grounds, arguing that the motion judge misunderstood the significance of additional third-party culprit evidence presented for the first time at the postconviction stage:25
“(i) Smith‘s statement to police containing details of Smith‘s flight to New York after the shootings; (ii) evidence of a shooting that occurred four days earlier in a location close to the barbershop; and (iii) evidence that witnesses at [the Burr Street house] lied about Smith‘s presence at the house close in time to the barbershop shooting.”26
For the reasons stated by the motion judge, we discern no error. As the motion judge explained, Smith‘s statement to police
The defendant also suggested in his motion for a new trial that evidence of a shooting that happened four days prior to the barbershop shooting and took place “approximately two blocks” away supported the defense that Smith was the third-party culprit. Witnesses, including King, saw “a [B]lack male, wearing a black hooded sweatshirt . . . and jean[s]” firing at a vehicle and that he fled in “a silver car with Tennessee plates” that was later found parked next to the Burr Street house. The police also recovered a pair of gloves similar to those found at the Burr Street house. As the motion judge explained, however, none of this evidence implicated Smith in the barbershop shooting any more than it exonerated the defendant, whose DNA was found on the black gloves and a black hoodie recovered from the Burr Street house, where witnesses saw him after the barbershop shooting and police apprehended him.
Finally, the defendant proffered statements made by Carter and Baulkman to demonstrate that they “lied about Smith‘s presence” at the Burr Street house. The motion judge noted, however, that defense counsel successfully impeached Carter‘s testimony at trial, establishing that she “initially told police that Smith was not at” the Burr Street house but then testified on cross-examination that she saw him leave when she arrived that morning. As to Baulkman, the motion judge found that the statement, from a person who did not testify at trial, also did not support the defendant‘s proffered third-party culprit defense that Smith committed the barbershop shooting. We agree; in fact, at trial, the defendant established through Fuller‘s testimony that Smith was in a car in Fuller‘s driveway at the time.
Having reviewed the evidence presented on the motion for a new trial, we discern no error by the motion judge when he denied the motion after considering the proffered additional third-party
d. Review under
3. Conclusion. For the foregoing reasons, we affirm the defendant‘s convictions and the denial of the defendant‘s postconviction motion for a new trial.
So ordered.