Convicted of murder in the first degree on the
1. Facts, (a) The events leading up to the murder. We summarize the facts, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Salemme,
The victim sold crack cocaine and, shortly after moving into the apartment building, asked the defendant to join him in selling drugs. The defendant and the victim sold crack cocaine out of the apartment building for approximately two or three months before the murder.
Sometime before the murder, the victim purchased a silver handgun. Because the victim’s wife objected to having a handgun in their home, the victim asked the defendant to keep the gun for him. The victim also gave the defendant approximately $1,000 worth of cocaine to hold. One day later, the victim asked the defendant to return the gun and the cocaine.
(b) The murder. The next day, the victim, who apparently was friendly with the defendant’s father, went to the defendant’s apartment with a frozen dinner for the defendant’s father. At approximately 10 p.m., the victim left the apartment building in his car and drove to the defendant’s sister’s apartment. The defendant came out to the victim’s car along with Jacob Sanchez, the defendant’s nephew. There was a brief argument, after which the victim drove away.
According to the testimony of Gaulin, Jacob Sanchez told the defendant to “get the gun.” Gaulin saw the defendant take the silver gun from a bag in his sister’s apartment and put it back. She then went upstairs. The defendant and Sanchez left.
At approximately 10:20 p.m., the victim returned to his apartment building. His wife heard his car pull up and looked out the window. She saw three men, dressed in dark clothing and hooded sweatshirts, approach her husband’s car. She recognized one of the men as the defendant by his voice. The victim’s wife saw the defendant pull out a gun and fire it twice at the victim. She recognized the gun as the silver gun the victim had given the defendant several days earlier.
That night, the defendant returned to his sister’s apartment alone. Gaulin noticed that he was shaking and sweating. He told her, “I did it,” or “[w]e did it,” and stated that he “didn’t want to kill him.” The defendant also told Gaulin that he had gotten rid of the gun.
(c) The defendant’s arrest. The night of the murder, the victim’s wife told the police that she had witnessed the defendant murder her husband. The police began a search of the area. The next morning, the police learned that the defendant was at his sister’s apartment. When the police found him, the defendant agreed to speak with them at the police station.
The defendant initially denied knowing the victim. Later in the interview, however, the defendant admitted to selling crack cocaine for the victim. The defendant also told the police that he had severed his relationship with the victim several days earlier because the victim was not paying him enough. The defendant said that he knew the police were looking for him
(d) The trial. The defendant’s claims of errors center on his own testimony and that of two of the Commonwealth’s witnesses — Jaquay Abreu and Gaulin. Jaquay Abreu, the victim’s wife, testified that she saw the defendant shoot her husband. She stated that she identified the defendant as the shooter based on his voice and on what she could see from her window. The force of this evidence was strengthened by Abreu’s testimony as to her knowledge of the defendant because of visits and telephone conversations with the defendant. Gaulin described the defendant’s behavior before and after the murder, including his inculpatory statements immediately after the murder.
The defendant proceeded on the theory that the victim’s wife misidentified the murderer. The defendant testified that he and the victim argued on the night of the murder over the defendant’s refusal to return the cocaine and the gun. The defendant also testified that his nephew, Jacob Sanchez, suggested they kill the victim.
According to the defendant’s testimony, he pulled the gun out of a bag, but returned it to the bag when his girl friend became upset. The defendant’s testimony indicated that he returned to his apartment building on the night of the murder because he was concerned about his father’s safety. According to the defendant, he was knocking on the door of his apartment when he heard the two shots that killed the victim. The defendant’s strategy focused on implicating Sanchez as the murderer.
2. Motions for required finding of not guilty. The defendant claims that the judge erred in denying his motions for a required finding of not guilty. According to the defendant, the evidence was insufficient on the element of premeditation.
In reviewing the denial of a motion for a required finding of not guilty, we consider whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore,
3. Errors at trial, (a) Admission of the threat. Gaulin testified to the defendant’s inculpatory statements and behavior after the murder. Gaulin became upset during her testimony. The judge ordered a recess, during which the prosecutor suggested that Gaulin’s demeanor might be attributable to threats that the defendant’s niece had made against Gaulin. According to Gaulin’s subsequent testimony, the defendant’s niece said that if Gaulin “put her uncle in jail that she’ll come and kill [Gaulin].
Because Gaulin asked the prosecutor if she could “get in trouble for testifying,” the judge became concerned that Gaulin was afraid she might incriminate herself. The judge ordered that an attorney unrelated to the case be brought in to speak with Gaulin. The attorney spoke in private with Gaulin, and then told the judge that he had “just talked to a nervous young woman who stated that she has been threatened. She’s concerned about that . . . .” The attorney also reported that Gaulin was generally nervous about testifying but that no privilege under the Fifth Amendment to the United States Constitution applied. Based on the attorney’s report, the judge permitted the Commonwealth to question Gaulin before the jury, over the defendant’s objection, about the threat.
The defendant claims that the judge erred in allowing Gaulin’s testimony as to the threat.
“Evidence is relevant if it has a rational tendency to prove a material issue. Whether evidence is relevant in any particular
We conclude that the prejudicial effect of the threat testimony outweighed its probative value. There was no suggestion that material aspects of Gaulin’s testimony changed because of the threat. Therefore, the probative value of any evidence that the defendant’s niece threatened Gaulin before she testified was minimal. However, the danger that the jurors would use evidence of a threat improperly was significant. As the defendant points out, the jurors might have associated the bad conduct of the defendant’s niece with the defendant or given Gaulin’s testimony artificially inflated weight because she testified despite being threatened. The judge implicitly acknowledged these dangers by giving two limiting instructions.
Although the admission of the threat testimony was error, the error was not prejudicial to the defendant. The judge’s limiting instructions were strong and stated the law correctly. We assume that the jurors followed the judge’s instructions. See Commonwealth v. Rosa,
In addition, although Gaulin’s testimony was important to the Commonwealth’s case, it was not indispensable. Gaulin testified
(b) Admission of identification testimony. The defendant claims that the judge erred in admitting hearsay testimony about a statement Jaquay Abreu gave to Detective Kevin Sullivan on the night of the murder. At trial, Detective Sullivan testified, over the defendant’s objection, as to Abreu’s statement, which included Abreu’s description of how many shots were fired, the color of the gun, and the defendant’s behavior after the murder.
Where an identifying witness is available for cross-examination and does not dispute the out-of-court identification, the testimony of a third person who observed the extrajudicial identification is admissible for both corroborative and probative purposes. See Commonwealth v. Schand,
The Commonwealth argues that all of Detective Sullivan’s testimony was proper under the verbal completeness doctrine. See Commonwealth v. Watson,
Because there was error in allowing the detective to testify as to Abreu’s complete description of events after the murder, we must determine whether the error prejudiced the defendant.
The detective’s testimony was duplicative of Abreu’s testimony. “The admission of cumulative evidence does not commonly constitute reversible error.” Commonwealth v. Bart B.,
(c) Implying fabrication by defendant. The defendant correctly asserts that the prosecutor improperly questioned the defendant as to the fact that the defendant sat through the Com
As in Commonwealth v. Person, supra, this case hinged on the jurors’ assessment of the defendant’s credibility. However, unlike in Person, the improper conduct in this case was limited to two questions.
(d) Asking defendant to comment on witness’s veracity. The defendant argues that it was improper for the prosecutor to ask several questions requiring the defendant to comment on the veracity of another witness, Gaulin.
In Triplett, we reversed a defendant’s conviction because “the Commonwealth repeatedly asked [the defendant] about those parts of [another witness’s] testimony that contradicted
Here, the focus of the improper questions was not Gaulin’s most damaging testimony — that involving the defendant’s inculpatory statements after the murder — rather, the questions came in the context of inquiring as to the defendant’s whereabouts in the days prior to the murder. In addition, most of the prosecutor’s questions focused on whether the defendant had heard Gaulin’s testimony.
(e) Burden shifting. According to eyewitness testimony, the perpetrator of the murder wore dark blue pants and a dark, hooded sweatshirt. The defendant, however, testified that, on the day of the murder, he wore a white T-shirt with the words “we are the world” printed on the back and stone-washed blue jeans. Although the Commonwealth had in its possession at least the T-shirt, during cross-examination, the prosecutor asked the defendant: “did you bring with you today the . . . sneakers, the stone-washed jeans, or the white T-shirt you had on?”
“A prosecutor may not conduct cross-examination ‘in bad faith or without foundation.’ ” Commonwealth v. Christian, supra at 561, citing Commonwealth v. White,
The defendant argues that the effect of the prosecutor’s improper question was to shift to him the burden of producing exculpatory evidence. We disagree. Shortly after the prosecutor asked the improper question, the Commonwealth introduced in evidence the T-shirt with “we are the world” printed on the back: the jurors, therefore, were cognizant of the fact that at least some of the clothing was in the Commonwealth’s possession all along. See Commonwealth v. Christian, supra at 563. Furthermore, the judge correctly instructed the jurors that the fact that the defendant took the stand “did not shift any burden away from the Commonwealth . . . to the defendant.... The burden remains totally with the Commonwealth, and never shifts to the defendant.” We are satisfied that, although the prosecutor’s question was improper, the jurors understood the appropriate burden of proof and, therefore, that the single question did not create a substantial likelihood of a miscarriage of justice. See Commonwealth v. Ruddock,
(f) The cumulative effect of the alleged errors. The defendant argues that, even if none of the above errors requires reversal separately, the combined effect of the mistakes was so prejudicial that it created a substantial likelihood of a miscarriage of justice. We disagree. The cumulative error was no more prejudicial than the individual errors, which had minimal impact. Commonwealth v. Kosilek,
4. Other errors alleged. The defendant claims that a number of additional errors were made at his trial. We disagree. These claims “require us to apply established principles of law to specific facts of [the defendant’s] case. ... We shall deal with such issues only to the extent necessary to show that we are aware of the defendant’s contentions and to apply the established law.” Commonwealth v. Hartford,
(a) Jury irregularities. The judge’s denial of the defendant’s motion to remove three jurors after they were followed from the courtroom by a group of spectators was proper. See G. L. c. 234, § 26B. The judge held a hearing, out of the presence of the other jurors and with both counsel present, at which each juror involved in the incident was questioned. See Commonwealth v.
The judge’s inquiry into the three jurors’ ability to act impartially was proper. Although “in general . . . our law does not permit inquiry into ‘the subjective mental processes of jurors, such as the reasons for their decisions,’.” the judge’s questions were confined to the jurors’ assessment of their ability to remain impartial. Commonwealth v. Hebert,
(b) Exclusion of Abreu’s arrest. The judge’s exclusion, over the defendant’s objection, of evidence that Jaquay Abreu, the victim’s wife, was arrested and arraigned on drug-related charges after the murder, but before the defendant’s trial, was proper. Because Abreu’s testimony did not differ from her prearrest statements, there was no basis for claiming that Abreu
(c) Alleged prosecutorial misconduct. (1) Implying knowledge of firearms. The prosecutor’s questions whether the defendant knew about firearms because he had served in the military were proper. The defendant raised the issue of his military training on direct examination, and the Commonwealth was entitled to probe further based on the reasonable inference that an individual with military training has experience with firearms. When the scope of the defendant’s knowledge of firearms became clear, the prosecutor proceeded to another topic. Contrast Commonwealth v. Simmons,
The defendant also argues that the prosecutor made improper comments during her summation about the defendant’s testimony as to his military service.
(2) Missing witness inference. The defendant claims that the prosecutor’s questions as to an employment interview the defendant had on the day of the murder improperly raised a missing witness inference adverse to the defendant.
(3) Consciousness of guilt. While in the police station, the defendant told Gaulin to “remember that he didn’t do it.” In her closing argument, the prosecutor told the jurors that “[tjhose were the defendant’s words. That’s what he wanted Melissa to say. That’s what he wants us to say. But the evidence tells us to say something quite different.”
“ ‘In closing argument, counsel may argue the evidence and the fair inferences which can be drawn from the evidence.’ . . . ‘Counsel may also attempt to assist the jury in their task of analyzing, evaluating, and applying evidence. Such assistance includes suggestions by counsel as to what conclusions the jury should draw from the evidence’ ” (citations omitted). Commonwealth v. Raymond,
(4) “Taunting” the defendant. The defendant’s claim that the prosecutor “taunted” the defendant lacks merit. Cf. Commonwealth v. DeMars,
(5) Defendant’s silence. Inspector Gerald Wayne of the Lowell police department testified to a post-Miranda interview with
“A defendant’s silence after the police have given the warnings mandated by Miranda v. Arizona,
Inspector Wayne’s testimony was “introduced in the context of the entire conversation, and was admitted so as not to leave the jury wondering why the interview ended abruptly.” Commonwealth v. Habarek, supra at 110. See Commonwealth v. Waite, supra at 798. “When the defendant has temporarily waived the right to silence, testimony regarding the cessation of questioning is appropriate to prevent . . . confusion.” Id. See Commonwealth v. Habarek, supra. In addition, “at no time did the Commonwealth use this single response either as evidence of guilt or to impeach an explanation . . . offered at trial.” Commonwealth v. Ferreira,
Although there was no error in this line of questioning in the context of the defendant’s trial, we note that, at the defendant’s request, the judge should instruct the jurors, at the time of the
(d) Failure to instruct on manslaughter. The judge did not err in failing to instruct the jurors on manslaughter. “If any view of the evidence in a case would permit a verdict on manslaughter rather than murder, a manslaughter charge should be given.” Commonwealth v. Brooks,
All the evidence showed that the victim was sitting in his parked vehicle and the defendant was outside the vehicle when he fired the gun. No evidence suggested that the victim was threatening the defendant at that time. Nor did any evidence suggest that the defendant acted on reasonable provocation “before sufficient time had elapsed for the accused’s temper to cool.” Commonwealth v. Pierce, supra. See Commonwealth v. Brooks, supra, quoting Commonwealth v. Nichypor,
5. Ineffective assistance of counsel. The defendant makes a claim of ineffective assistance of counsel at trial. We review to determine whether “better work might have accomplished something material for the defense,” Commonwealth v. Satterfield,
(b) Failure to impeach Melissa Gaulin. Gaulin testified that, when the defendant returned to his sister’s apartment on the night of the murder, “[h]e was sweating and shaking.” He said either “I did it” or “we did it,” and told Gaulin that “he didn’t want to kill him.” He also told her that “we got rid of it [the gun].”
The defendant argues that Gaulin’s testimony was critical to the Commonwealth’s case against him. According to the defendant, his trial counsel might have been more effective in undermining Gaulin’s testimony. We do not think that “better work might have accomplished something material for the defense,” Commonwealth v. Satterfield, supra, or that defense counsel’s representation created a substantial likelihood of a miscarriage of justice, Commonwealth v. Wright, supra at 682.
(1) Police coercion. Gaulin gave two statements to the police. In the first, she provided an alibi for the defendant. In the second, she described the defendant’s inculpatory behavior after the murder. The trial judge, who decided the defendant’s motion for a new trial, found that the police threatened Gaulin before each of her statements. The defendant now argues that his trial counsel was ineffective because he did not question Gaulin about the threats.
In the memorandum denying the defendant’s motion for a new trial, the judge noted that the threats were made before both the inculpatory and the exculpatory statements that Gaulin gave to the police. In these circumstances, bringing in evidence of these threats for impeachment purposes would not “have accomplished something material for the defense.” Commonwealth v. Satterfield, supra.
The defendant argues that trial counsel was ineffective for failing to object to the admission of the statement that corroborated Gaulin’s testimony and for failing to impeach Gaulin with the statement that was inconsistent with her testimony. Counsel was not ineffective for failing to object to the introduction of testimony that had the effect of showing that the Commonwealth’s witness had given two contradictory statements to the police. Indeed, the defendant could point to the fact that the Commonwealth itself had proved the misstatements and, on that basis, the Commonwealth’s evidence should not be believed. The admission of this evidence did not create a substantial likelihood of a miscarriage of justice. See Commonwealth v. Wright, supra at 682.
We also disagree with the defendant’s complaint that his trial counsel was not emphatic enough in impeaching Gaulin because she described the defendant as saying both “we did it” and “I did it.” In order to advance the theory that the defendant was not the perpetrator, defense counsel did question Gaulin as to her waffling between these two descriptions. It is not ineffective not to belabor a point.
(3) Motive to lie. The defendant argues that his counsel should have put before the jurors a letter in which Gaulin expressed her anger at the defendant for leaving her. Gaulin wrote: “I don’t want to hurt you [and] you know how I can so please don’t hurt me.” We agree with the Commonwealth and the judge that the import of this statement is ambiguous. We are also persuaded that, had defense counsel introduced a portion of the letter, the Commonwealth could have introduced the remainder of the letter, in which Gaulin promised to “stay by” the defendant and expressed a desire to prove her love to him. See Commonwealth v. Watson,
6. Conclusion. We have reviewed the record as a whole and conclude that there is no reason to exercise our power under G. L. c. 278, § 33E, to order a new trial, or to enter a lesser degree of guilt on the conviction of murder in the first degree.
Judgment affirmed.
Notes
Thus, that brief is before us as well as the new brief filed on behalf of the defendant.
The defendant was also convicted of possession of an unlicensed firearm, for which he was sentenced to serve a concurrent term not exceeding five years and not less than two and one-half years. The defendant does not allege any error concerning this conviction.
The defendant also complains that the judge “failed to comprehend what factors had to be weighed” in determining whether to admit the testimony. The defendant apparently bases this claim on the fact that the judge did not explain her thought process in overruling the defendant’s objection. A judge is not required to state her grounds for excluding testimony. H.H. Hawkins & Sons Co. v. Robie,
immediately after Gaulin testified as to the threat, the judge instructed the jury that they could consider the threat only in relation to Gaulin’s demeanor. The judge instructed that, “if believed, such threats cannot be held against this defendant nor . . . place the defendant in a negative light before a jury, even though it may have been done by someone who is related ... to this particular defendant. It must be considered an independent enterprise on the part of the person making the threat. . . . [Wjhatever [the defendant’s niece] may or may not have done — that’s up to you to determine on the subject of this witness’s credibility — but you cannot carry that over to the defendant.” The judge gave a substantially similar instruction in her final instruction to the jurors.
The defendant suggests that the judge’s instruction “may be tantamount to asking the jury to ignore that an elephant has walked through the jury box.” Commonwealth v. Flebotte,
Our approach accords with the reasoning behind exempting out-of-court identifications from the hearsay rule. “ ‘The premise . . . was that, given adequate safeguards against suggestiveness, out-of-court identifications were generally preferable to courtroom identifications,’ because of the problem of fading memories.” United States v. Paredes-Rodriguez,
Jaquay Abreu was available for cross-examination. Therefore, the defendant’s confrontation right was not implicated by the admission of the detective’s hearsay testimony, and we need not determine whether the error was harmless beyond a reasonable doubt. See Commonwealth v. Vinnie,
The prosecutor began her cross-examination of the defendant as follows:
Q: “Sir, would you agree that you’ve had the advantage of hearing all the testimony in this case before you took the stand?”
A: “Yes.”
Q: “So you’ve heard everybody’s version of what they say happened before you’ve taken the stand?”
A: “Yes.”
In contrast, the prosecutor in Person made an extended argument in closing that the defendant’s retention of an attorney demonstrated consciousness of guilt, and that the defendant sat and listened to testimony for six days in order to give “a completely tailored cover story covering every single aspect” of the Commonwealth’s case. Commonwealth v. Person,
For example, the prosecutor asked the defendant: “Are you saying Melissa was lying?”
In fact, there were a number of other instances in which the prosecutor noted that the defendant’s testimony agreed with that of Gaulin.
Defense counsel did not object to this question or raise this issue in the defendant’s motion for a new trial.
The defendant is incorrect in asserting that due process requires that, once evidence indicates that an individual juror has been subject to improper influence, the court must inquire individually of all remaining sitting jurors. Unless the risk of a taint “is determined to exist, individual questioning is not required and, as we have said repeatedly, that determination is subject to the judge’s broad discretion.” Commonwealth v. Kendrick,
The prosecutor said: “Now, we thought . . . that we might get some more information on firearms from the man that’s been in the military for five years, but apparently he has little to no knowledge, except something about cannons and M-16s, so we could not learn anything more from the defendant, but we suggest that you heard adequate information to help you decide this case.”
The interview was relevant to the question of what clothing the defendant wore that day.
The prosecutor noted that, on seeing Gaulin at the police station, the defendant might have become concerned. “He doesn’t what’s [sic] she’s doing there, he doesn’t know what she has said or, worse, what she’s going to say, so he has to give you some kind of signal, perhaps even an order, if you will. ... If the defendant did not do it, why did he feel such a need to remind his girlfriend that he did not do it.”
On appeal, the defendant does not argue any error in the judge’s conclusion that he knowingly, intelligently, and voluntarily waived his rights after the initial Miranda warnings.
The defendant did object to questioning which might have gone beyond the above testimony and that was excluded.
The defendant in his first brief asserted that a self-defense instruction should have been given. There is no basis on this record for a self-defense instruction.