59 Mass. App. Ct. 631 | Mass. App. Ct. | 2003
Codefendants Paul Muckle and Ricardo Kirby shot several bullets into a parked Volkswagen Jetta automobile. The shooting was both a warning to and an act of revenge against the Jetta’s owner, who was Muckle’s former housemate and who, according to Muckle, wrongfully was withholding Muckle’s personal property as hostage to an overdue bill. Charged with malicious destruction of property over $250, possession of a firearm, and possession of ammunition,
Complicating this trial as to Kirby was the circumstance that Kirby did not return to court following the second day’s lunch break. One of the trial judge’s midtrial instructions concerning Kirby’s failure to appear, based on evidence not presented before the jury, improperly conveyed the judge’s findings that Kirby was absent without cause, voluntarily and without leave of court. This midtrial instruction was error. There was also error in the related final instruction concerning consciousness of guilt. Accordingly, we vacate Kirby’s convictions of malicious destruction of property and possession of a firearm.
We first address the practical problems occasioned under Mass.R.Crim.P. 18, 378 Mass. 887 (1979), when a defendant, present when trial commences, later absents himself. We then
1. Factual background. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. On January 6, 1998, Muckle telephoned Dennis Banton, his former roommate, and stated that Muckle wanted to pick up certain pieces of personal property that had been left at Banton’s apartment during the few months Muckle had stayed there. Banton told Muckle he could not retrieve his belongings until Muckle paid his portion of the telephone bill. Muckle became angry, swearing and warning Banton about “what a bad boy could do.” The call from Muckle’s end was overheard and corroborated by Lavem Downie, a friend staying with Muckle. She further testified that, after ending the telephone conversation, Muckle told her that he was going to “get it [the property] back,” that “he’s going to kill someone if he has to,” and that he was “going to bring a gun.”
Later the same night, Banton, who was looking out his apartment’s front window, saw Muckle (with one passenger) drive up the street in a gold Jaguar automobile sporting “BBS” gold rims. Banton had seen Muckle driving this Jaguar on previpus occasions. The Jaguar stopped near Banton’s building. Muckle got out of the car and pointed to Banton’s white Volkswagen Jetta parked on the street. The passenger, whom Banton later identified as Kirby, then emerged from the Jaguar and fired several shots into the Jetta. Muckle and Kirby fled. The police arrived shortly thereafter, interviewed witnesses, collected shell casings, and retrieved the bullets lodged in the Jetta. Later that evening, Banton received another telephone call from Muckle, who stated, in a confirmatory reference, “See what a bad boy could do?”
The next day, Muckle voluntarily went to the police station and was interviewed. Muckle denied being involved in the shooting of the Jetta. Muckle admitted that he had driven to Banton’s home in his Jaguar (alone, he said, not with a passenger) on the evening in question. According to Muckle, he argued with Banton and then returned home. Once there, he discovered that two friends from New York, whom he could identify only as “Tony” and “Jerry,” had stopped by for a visit.
There was also testimony by Shalena Robinson, Kirby’s longtime friend, that she helped Muckle and Kirby hide a gun at her house on the night of the shooting.
The defense — along the lines of the statement Muckle had given to the police — was that neither Muckle nor Kirby was involved in the shooting of the Jetta and, instead, the two friends from New York may have been the perpetrators. There was also countervailing testimony by two witnesses that the man who stepped out of the Jaguar and shot the Jetta was not Kirby.
2. Instructions regarding Kirby’s absence from trial. Kirby failed to appear on the second day of trial. Following his disappearance, the judge gave defense counsel and the prosecutor an opportunity to investigate the reasons for his absence. Thereafter, the judge conducted a voir dire hearing to take evidence. A police officer testified that he had contacted all the local hospitals and police departments during the recess and that none had information regarding Kirby’s whereabouts. Defense counsel also reported that neither he nor his office had heard from Kirby, and he had been unable to contact his client. The judge found, pursuant to rule 18,
That was not the end of the matter. The next morning the judge, sua sponte, again raised the issue of Kirby’s absence, stating to counsel in a side bar conference that, based on his analysis of certain cases, he intended to instruct the jury that he had made a determination, in a separate hearing, that Kirby had absented himself without cause and voluntarily. The judge reasoned that such an additional instruction was appropriate because the Commonwealth was entitled to argue in closing that Kirby’s flight during the trial reflected consciousness of guilt.
Following the judge’s announcement a colloquy ensued. The prosecutor, to his credit, expressed the view that, while the “[defendant's flight may be received as evidence of consciousness of guilt[,] ... the Commonwealth had to have some type of foundation before we argue it in closing.” The judge at first resisted taking evidence concerning Kirby’s absence before the jury, noting that he had already conducted an evidentiary voir dire hearing. However, he eventually yielded on the point, offering the prosecution the opportunity to put in “whatever you want to put in.” Defense counsel objected, in particular stress
“The [defendant Ricardo Kirby, yesterday at our lunch break, absented himself and has not yet returned to this trial and to this court. At a hearing outside of your presence, I have found his [absence] to be without cause, voluntary, and without leave of court. We are therefore proceeding on this case against both defendants to a conclusion in all respects.”
Defense counsel again objected.
The instruction was error. In the first place, the instruction went beyond the neutral statements approved in the case law concerning a defendant’s failure to appear during trial. As stated in Kane, a “jury may raise very damaging inferences from the bare fact that the defendant has somehow flown. This the judges recognize, and we find them warning juries wholly to disregard the fact.” Commonwealth v. Kane, 19 Mass. App. Ct. at 136 (citations omitted). A second problem was that this midtrial instruction was given without any evidence having been adduced before the jury concerning the circumstances of Kirby’s disappearance and the efforts to locate him. “Such information as there was about the circumstances of the absence had been imparted to the judge at bench conferences [and, here, in the voir dire hearing]; none of it was heard by the jury.” Ibid. A judge, confronted with a disappearing defendant, may determine (after allowing time for investigation and the conduct of a voir dire hearing) that the prosecution should be permitted to present evidence to the jury concerning a defendant’s midtrial absence in order to lay a foundation for a consciousness of guilt argument and jury instruction (as the assistant district attorney here thought). However, a judge may not simply hold a voir dire hearing, make a determination that the defendant’s presence is without cause and voluntary, and then, ipse dixit, convey that
In this case, the error in the midtrial jury instruction was compounded in the final jury charge, wherein the judge gave a consciousness of guilt instruction. A distinction is in order: while this final charge was a correctly stated consciousness of guilt instruction, see generally Commonwealth v. Toney, 385 Mass. 575, 585 (1982), and while such an instruction may appropriately be given where there is record evidence before the jury concerning the circumstances of a defendant’s flight during trial, Commonwealth v. Kane, supra at 136-137, the error here is that the consciousness of guilt instruction should not have been given at all. There was no evidence before the jury on the issue of Kirby’s disappearance, leaving the consciousness of guilt final instruction to rest exclusively on the erroneous mid-trial jury instruction (which, in turn, rested on an extra-jury voir dire hearing) that Kirby was absent from trial “without cause, voluntar[ily], and without leave of court.” “It is error to instruct a jury on consciousness of guilt based on facts without reasonable support in the record.” Commonwealth v. Haraldstad, 16 Mass. App. Ct. 565, 570 (1983).
Given the objection at trial, we review the two interrelated errors to determine whether “the error did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983). In this appellate scrutiny, reversal for prejudicial error generally is required unless we can “say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Ibid. We cannot so say in this case. To the contrary, weighing the effects of both the erroneous midtrial instruction and the final consciousness of guilt instruction, we are of opinion that Kirby’s substantial rights to a fair trial were affected, and that the errors warrant reversal of his convictions.
When viewed in isolation, parts of the evidence against Kirby seem relatively strong (including Banton’s identification of Kirby and Robinson’s testimony that Kirby enlisted her to hide the gun); however, when viewed within the context of the full
Given the nondefinitive state of the evidence, the erroneous midtrial instruction and the final consciousness of guilt instractian took on added significance. The midtrial instruction is very problematic: it was very powerful in effect because it was given by the independent figure in the courtroom, who bears the markings of authority. This instruction of law, informing the jury that the presiding judge had determined that Kirby’s absence from trial was “without cause, voluntary, and without leave of court,” perforce would have resonated with the jury, especially in light of the final consciousness of guilt instruction and the overarching charge that the jury “must take the law” as the judge gives it. See generally Massachusetts Superior Court Criminal Practice Jury Instructions § 1.5 (1999); Model Jury Instructions for Use in the District Court §§ 1.01, 2.01 (1997). In light of the foregoing, we conclude that the midtrial instruction “substantially swayed” the judgment of conviction, Commonwealth v. Flebotte, 417 Mass. at 353, and accordingly, we reverse Kirby’s convictions.
As is evident from the proceedings, the judge, prosecutor,
We therefore restate the protocol to be followed. When a defendant fails to appear midtrial, the judge is to determine whether the trial should proceed in the defendant’s absence or whether a mistrial should be declared. Commonwealth v. Kane, 19 Mass. App. Ct. at 136. In determining this question, the judge must determine whether the defendant’s absence is without cause and voluntary. Ibid. Mass.R.Crim.P. 18(a)(1). This judicial determination, in turn, requires that there be time allotted for some measure of inquiry and investigation into the reasons for the defendant’s absence and the results of the efforts to locate the defendant. To this end, the judge should grant a recess of such duration as the judge deems appropriate to allow for investigation.
Following this hearing, the judge should state a finding concerning whether the defendant’s absence is without cause and voluntary. If the judge determines not to declare a mistrial, but rather to continue the trial in absentia, then the judge should give a neutral instruction to the jury to the effect that the defendant may not be present for the remainder of the trial, that the trial will continue, and that the defendant will continue to be represented by his attorney. If there will be no evidence adduced before the jury concerning consciousness of guilt, the judge may add that the jury should not speculate as to the reasons for the defendant’s absence and should not draw adverse inferences, as there are many reasons why a defendant may not be present for the full trial.
Conversely, if the prosecution seeks to bring before the jury evidence of the defendant’s flight to lay a foundation for a consciousness of guilt instruction, the judge should determine (based on the evidence adduced on voir dire) whether introducing such evidence is warranted. If so, the prosecution briefly may develop the facts and circumstances of the defendant’s failure to appear, subject to such discretionary limitations as the judge believes necessary. If the judge determines that a consciousness of guilt instruction is appropriate based on the evidence, and that this instruction will be incorporated in the final charge, that instruction should be stated in accord with Commonwealth v. Toney, 385 Mass. at 585, and cases cited therein — all as tailored to the defendant’s failure to appear at trial. See generally Model Jury Instructions for Use in the District Court § 4.12 (1997).
Where only a general verdict slip is submitted to a jury, a conviction will be affirmed provided there is sufficient evidence to sustain both theories, i.e., individual liability as a principal and joint venturer liability in a common criminal enterprise. Commonwealth v. Maynard, 436 Mass. 558, 561 (2002). A defendant can be convicted as a joint venturer if he was “(1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary.” Commonwealth v. Longo, 402 Mass. 482, 486 (1988). Our review of the record convinces us that the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to support joint venture liability for the defendants both as principals (which the defendants concede) and as joint venturers. As to the later joint venturer theory of proof, “at the climactic moments the [defendants] consciously acted together in carrying out the criminal endeavor, each
4. Sufficiency of the valuation evidence and related instructions. A felony conviction for malicious destruction of property under G. L. c. 266, § 127, in contrast to a misdemeanor conviction, requires proof beyond a reasonable doubt that the damaged property had value in excess of $250. See Commonwealth v. Beale, 434 Mass. 1024, 1025 (2001); Commonwealth v. Lauzier, 53 Mass. App. Ct. 626, 635 (2002). As the defendants both suggest, and given that the vehicle suffered extensive damage to several different areas,
Banton testified that he bought the car three years before for $5,000 and still owed about $2,000 on the purchase loan. The defendants suggest that this valuation evidence was insufficient because the Commonwealth did not prove that the Jetta was driveable. Considered abstractly, whatever a car’s condition, we
The defendants also argue that the judge improperly encouraged the jury to consider the sentences that might be imposed when instructing that they “need[ed] to consider [whether the property was worth more than $250] only if you find the defendant guilty, so that I will know the range of sentence the law permits in this case.” This is not an appropriate instruction, and we do not endorse this manner of placing the $250 valuation mark before the jury with respect to the felony threshold. Such a reference to sentencing or punishment is unnecessary, and it was error to introduce it. However, the error was countered, and rendered harmless, by the judge’s clear instructions that the jury was not to consider punishment:
“In deciding whether you should return a verdict of guilty or return [a] verdict of not guilty, please do not be concerned about the question of punishment. The punishment to be imposed should the defendant be found guilty is exclusively the responsibility of the court, namely mine, to determine. Please do not try and guess what the punishment might be, the issue of punishment should not enter into your consideration or discussions at any time.”
5. Peremptory challenge. Both defendants argue — and the issue remains pertinent to Muckle’s conviction — that the judge erred in failing adequately to address the defense objection to the prosecutor’s use of a peremptory challenge to excuse a
6. The differing verdicts on Muckle’s indictments. Muckle contends that the judge should have instructed the jury that the three indictments against him should all “stand or fall together.” He posits that the guilty verdict against him on the malicious destruction of property charge was inconsistent with the jury deadlock on the illegal possession of a firearm and ammunition charges also lodged against him.
7. Conclusion. For the foregoing reasons, the judgment of conviction against defendant Muckle is affirmed. The judgments of conviction of malicious destruction of property and possession of a firearm against defendant Kirby are vacated, and those judgments are set aside. Although Kirby’s conviction of possession of ammunition is not properly before us, see note 3, supra, this conviction suffers from the same infirmities as the other two. Accordingly, on Kirby’s motion, the trial judge may, consistent with the foregoing, remove this conviction from its present status and grant such relief as may be appropriate. Commonwealth v. Nowells, 390 Mass. 621, 629-630 (1983).
So ordered.
Muckle also was charged with intimidation of a witness.
Although he requested review of all three convictions, Kirby’s conviction of possession of ammunition was placed on file by consent and is not properly before us. Commonwealth v. Delgado, 367 Mass. 432, 438 (1975).
At the close of the Commonwealth’s presentation, the trial judge entered, with the Commonwealth’s consent, a “not guilty” endorsement on the intimidation of a witness charge against Muckle. The jury failed to return a verdict on either the possession of a firearm or possession of ammunition charge, and those charges were dismissed.
Robinson’s testimony was given under an immunity grant pursuant to a nonprosecution agreement with the government.
Rule 18(a)(1) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 887 (1979), provides as follows:
“If a defendant is present at the beginning of a trial and thereafter absents himself without cause or without leave of court, the trial may proceed to a conclusion in all respects except the imposition of sentence as though the defendant were still present.”
While the rule allows for continuing the trial in the defendant’s absence, it
Such immunized testimony requires a heightened level of corroboration. G. L. c. 233, § 201. See Commonwealth v. Dyous, 436 Mass. 719, 727 (2002).
Reversal of Kirby’s convictions is separate and independent from Muckle’s situation. The judge carefully excluded codefendant Muckle from the consequences of Kirby’s absence and the related consciousness of guilt instraction, noting that “the absence of Mr. Kirby should not in any way be imputed to Mr. Muckle in any way.” Furthermore, we do not see in the record prejudice spilling over to Muckle such as would warrant any setting aside of Muckle’s conviction because of Kirby’s trial in absentia.
This investigation, in most cases, is not of the kind that would require a substantial amount of time or undue delay in the trial. A reasonably diligent investigation to determine if there is good cause for the defendant’s absence from trial might entail some of the following steps: independent police inquiry; contact with the defendant’s family and significant other persons in the defendant’s life; calls to the places where the defendant lives and works; and inquiry of emergency health facilities in the immediate area where there is a reasonable probability the defendant may have been treated. Of course, defense counsel also should check to see if the defendant has communicated with counsel’s law office.
There may be special circumstances in which a judge decides, in order to avoid redundancy, that a voir dire hearing is not necessary prior to the prosecutor’s introduction of evidence before the jury. For example, the judge may determine, based on an on-the-record conference with counsel, that the proffers of forthcoming evidence are sufficiently reliable to support direct evidence to be introduced before the jury. The problem, of course, is that proffers by counsel may not actually yield the type of evidence described in the proffer. Hence, the more conservative, and preferable, practice is the voir dire hearing described above.
The arguments discussed here and in part 4, infra, relate to both Muckle and Kirby. Were we to determine — which we do not — that the evidence was insufficient, double jeopardy would bar a second trial against Kirby on the malicious destruction of property charge. Corson v. Commonwealth, 428 Mass. 193, 196-197 (1998). Given our determination, double jeopardy does not apply.
The defendants cite Commonwealth v. Green, 420 Mass. 771 (1995), to support their argument that there was no joint venture liability. Unlike Green, in which the evidence demonstrated the culpability of only a single perpetrator, in the case at bar there was ample evidence of joint participation in the crime.
Bullets were retrieved from within the engine compartment, near the radiator coolant reservoir, and from underneath the rear seat. Bullets also hit and left holes damaging the hood grill and the windshield. The latter holes were consistent, it appears, with the bullets’ trajectory into the engine and car interior area.
We note in passing that the record shows that, after the prosecutor exercised the peremptory challenge, the juror ultimately selected for the subject seat, number nine, also was black. Neither party challenged this juror. At the end of the third day, when it was clear that the case was going to continue, the judge reluctantly excused this juror for employment-related reasons. The appellate record is bereft of any information concerning the composition of the remaining venire. The racial background of the two defendants and the victim also is less than complete. The only reference on this subject is a comment by the judge indicating that “both [defendants are dark men.”
In response to a jury question whether a “joint venture [may apply] to one count and not to another,” the judge instructed, “Yes, a joint venture may be proven beyond a reasonable doubt as to one offense and not as to the other alleged offense.”
We have also considered Muckle’s challenges that (a) his two-year jail sentence on the malicious destruction conviction constituted cruel and unusual punishment; (b) the Commonwealth had improper motives in bringing the criminal charges against him because Muckle had prevailed, he says, in having other convictions in unrelated cases overturned; (c) the judge erroneously disregarded information in a juror note and the prosecutor’s sentencing recommendation; and (d) Muckle’s conviction was the result of testimony obtained through monetary bribes. These arguments do not rise to the level of acceptable appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). However, even were we to accept the inadequate briefing, our review of the record persuades us that the arguments are without merit.