428 Mass. 852 | Mass. | 1999
The defendant was convicted of murder in the first degree on the theory of deliberate premeditation. While the
In addition to his claim of ineffective assistance of counsel, the defendant claims he was denied a fair trial by improper statements made by the Commonwealth in closing argument. He also asks that, pursuant to G. L. c. 278, § 33E, we either order a new trial or reduce the verdict to manslaughter. We affirm the conviction, and decline the defendant’s request to exercise our statutory power.
1. The Commonwealth presented evidence from which the jury could have found the following. On November 5, 1990, the defendant, a member of the street gang known as the Big Head Boys, shot the victim, Bryant Tarpley, because the victim sold drugs for someone other than the Big Head Boys on their turf. The medical examiner who performed the autopsy on the victim testified that the victim, who was seventeen years old, died as a result of two gunshot wounds, one to the head and one to the neck. The Commonwealth presented the testimony of three individuals, also members of the Big Head Boys: Tyrone Dickerson, Steven Niles, and Arthur Dickerson. Their testimony was the foundation of the Commonwealth’s case.
There was evidence that Craig Holiday (whose whereabouts at the time of trial were not known) was the leader of the Big Head Boys, and that the defendant was his “first lieutenant.” There was evidence that the defendant was acting on instructions from Holiday when he shot the victim.
2. Ineffective assistance of counsel. The defendant challenges
The judge found that trial counsel was “fully aware” of the criminal histories of the Commonwealth’s witnesses (certified copies of the convictions had been obtained by trial counsel before the trial) and that she had made a “tactical” decision not to use their criminal records to impeach them. Cf. Com
In Daigle, supra, we concluded that, where defense counsel did not produce criminal records of the defendant’s accomplices in order to impeach them, but did establish that the accomplice-witnesses were “seasoned criminals” through their own admissions and the circumstances of the robbery, defense counsel’s approach was not manifestly unreasonable. Id. at 544. For much the same reasons as we explained in that case, we conclude that counsel’s approach in this case did not create a substantial likelihood of a miscarriage of justice. The judge observed, and based on our own review of the record we concur in his judgment, that the defendant’s trial counsel brought out frequently and clearly on cross-examination of the Commonwealth’s witnesses, “¿te criminal character of all three of these individuals,” and “clearly demonstrated to the jury that each one was a seasoned criminal.”
The trial judge did not expressly address the defendant’s claim that his trial counsel failed to impeach Tyrone Dickerson and Arthur Dickerson with evidence of criminal charges and probation violation matters that were pending against them. While pending charges and probation violations may be used to show that a witness is biased in favor of the Commonwealth, counsel’s failure to elicit such evidence for that purpose does not necessarily constitute reversible error. A preliminary showing that a witness was providing testimony favorable to the Commonwealth in the hope of receiving more lenient treatment on his pending matters, or that inducements or promises had been made in exchange for his testimony, is required. Commonwealth v. Roberts, 423 Mass. 17, 20-21 (1996). There has been no such showing here. Based on our own review of the entire record, we conclude that the defendant has failed to show that trial counsel’s failure to introduce further evidence of the criminal records of the Commonwealth’s witnesses likely affected the outcome of this case.
3. The prosecutor’s closing argument. The defendant did not object at trial to the prosecutor’s closing argument. On appeal, he challenges several statements claiming they constituted improper personal opinion of the evidence. In referring to the
The defendant claims the prosecutor improperly appealed to the jury’s sympathy for the victim when he said, “[Wje’re talking about a human being here: [the victim] who will be seventeen forever because he was killed,” and later when he told the jury, “[the defendant] has all sorts of rights. But, you know Bryant Tarpley didn’t have a jury. He didn’t have a trial. He didn’t have any opportunity for that. No breaks.” These remarks should not have been made. We do not accept the Commonwealth’s assertion that the remarks were mere attempts to “humanize” the victim. But the error did not create a substantial likelihood of a miscarriage of justice. The remarks were isolated and were not a significant or even a focal portion of the prosecutor’s closing. Cf. Commonwealth v. Worcester, 44 Mass. App. Ct. 258, 264 (1998) (repeated claim by prosecutor that defendant had determined victim’s life was of no value combined with prosecutor’s request to jury to “do something” about killing prejudicial error). Moreover, the brief comments were adequately offset by the judge’s careful and clear instructions describing the role of closing argument, and telling the
The defendant challenges other remarks, claiming they impugned his character and, in effect, implied guilt by association. In referring to the witnesses, the prosecutor stated, “[I]f we have to go to hell to get our witnesses to convict somebody honestly for what happened, we will do it. We don’t have doctors and nurses coming in here.” He later added, “We’re not going to have priests coming in here to testify [to] what they saw. You’re going to have the people that were there.” The prosecutor’s reference to the criminal background of the witnesses was a fair response to the defendant’s attack on the witnesses’ credibility. Commonwealth v. Dixon, 425 Mass. 223, 230-231 (1997). The prosecutor did not suggest to the jury that the defendant should be viewed in the same way as the witnesses. Cf. Commonwealth v. Worcester, supra at 265 (prosecutor improperly implied that defendant, who had no criminal record, was “drug abusing criminal”). Even if the prosecutor’s statement was overly dramatic, the judge’s instructions made clear to the jury that it was but argument.
The defendant argues that the cumulative effect of all these statements denied the defendant his right to a fair trial because credibility was the crux of the case. Moreover, he says, this was a close case for the jury: it deliberated over several days.
4. Plenary review under G. L. c. 278, § 33E. The defendant’s arguments under G. L. c. 278, § 33E, focus on the same alleged errors that we previously have addressed. We see no reason to grant a new trial. The defendant executed Bryant Tarpley because he sold drugs for someone other than the gang to which the defendant belonged. Even if the killing was undertaken at the suggestion of, or indeed the instruction of, the leader of the gang — and there was scant evidence to that effect — these are not circumstances that, without more, support a reduction in sentence.
Judgment affirmed.
Order denying motion for a new trial affirmed.
The defendant did not make any statement to the police and there was no evidence other than the testimony of the three witnesses linking the defendant to the killing.
Tyrone Dickerson testified that the defendant had said to him: “Craig told me to kill him, to kill [Tarpley],” and described to Tyrone how he had killed the victim. Steven Niles testified that he heard a gunshot that sounded to him as if it came from the apartment where the victim was killed and that when the defendant joined him immediately afterward, the defendant said that the victim was dead, described the shooting and, motioning with his hands, said,
The defendant complains that the jurors were unaware that Tyrone Dickerson had been found delinquent by a jury in the Boston Juvenile Court on three occasions (for possession of ammunition, possession of a Class B controlled substance, and for distributing a controlled substance) and that at the time of trial he had three pending cases against him (possession of a Class D controlled substance, trespassing, and curfew violation). He complains that certified copies of Steven Niles’s convictions of assault with intent to murder, possession of a firearm, assault by means of a dangerous weapon, and assault and battery by means of a dangerous weapon, were not introduced, and that the jury heard only of Niles’s “single brush with the law.” As to Arthur Dickerson, the defendant complains that a certified copy of Dickerson’s conviction for possession of a firearm was not introduced, and that the jurors did not hear that he had two cases pending against him (for assault with intent to kill and assault and battery by means of a dangerous weapon, a knife).
As noted by the judge in ruling on the motion for a new trial, defendant’s trial counsel elicited on cross-examination that Tyrone Dickerson was a drug dealer who earned thousands of dollars selling crack cocaine, that he was a member of the “Big Head Boys,” and that he owned a .38 caliber pistol. The judge further noted that cross-examination by trial counsel established that Steven Niles was serving a lengthy prison sentence for assault with intent to murder, that he had used a gun to commit the offense, and that he sold drugs for Craig Holiday permitting him to earn several thousand dollars a week. Counsel also established that Niles had great familiarity with firearms and that he had fired .38 caliber, .25 caliber, and .22 caliber handguns. On cross-examination, trial counsel established that Arthur Dickerson had been incarcerated for possessing a firearm the year before the trial, that he was on probation, that he was unemployed, and that he both sold and used drugs.
At the outset of the trial, before opening statements, the judge told the jury that the opening and closing statements “are not evidence” and accordingly the jury were to take no notes during counsels’ arguments. In his instructions to the jury, he carefully distinguished between evidence on the one hand and argument on the other: “The opening statement and the summation are not evidence. I ask you not to consider them as evidence. . . . The summation, which is the highest art of lawyering, is a persuasive statement that is made to the jury to persuade the jury in respect to the evidence so that the jury can reach an ultimate conclusion that is a correct one. But as I suggested to you, it’s not evidence. You may only consider the evidence that you receive from the witnesses and from the exhibits.” He later stressed: “You should determine the facts of this case based solely on a fair consideration of the evidence. You are to be completely impartial and not be swayed by prejudice or sympathy, personal likes or dislikes toward one side or the other. You must decide this case only on what you have heard in the courtroom from the witness stand and from the exhibits. . . . [Y]ou have to decide this case on what was presented here from the witness stand and from the exhibits.”
In addition, at the request of the defendant and immediately before the jury retired the judge further instructed: “Counsel remind me that I should charge you that in our country there is no guilt by association. Mere presence at the scene of a crime is not sufficient to prove either murder in the first degree or murder in the second degree beyond a reasonable doubt.”
The trial commenced on May 3, 1993, with testimony beginning on May 4. The Commonwealth rested on May 5, 1993. The jury deliberated on May 5, 6, 10, and 11, 1993, when they returned a verdict of guilty.