34 Mass. App. Ct. 415 | Mass. App. Ct. | 1993
The victim was shot and killed by an individual, apparently (according to testimony at trial) one Michael Driggers, who has never been apprehended. A jury convicted the defendant of the victim’s murder (second degree) on a joint venture theory. The defendant contends on appeal that the judge erred in admitting as substantive evidence against him the statement of a witness before the grand jury inconsistent with her testimony at trial. The issue turns on whether the statement before the grand jury was adequately
We summarize the evidence, apart from the statement to the grand jury, presented through the victim’s fiancée and two young women who lived near the scene of the shooting. The victim and his fiancée lived in Dedham and used crack cocaine. Between 8:00 and 9:00 p.m. on September 4, 1990, they drove to the Franklin Hill Housing Project in Boston. They stopped the car, and the victim, in the passenger seat, told a man who approached them that he wanted to buy drugs. The man, wearing dark clothes with a hood, walked away about ten feet, leaned over, and returned with crack cocaine, which he handed to the victim. Once the drugs were in his hand, the victim told his fiancée to “hit it,” and they drove off without paying. The evidence suggested that Driggers was the individual dressed in dark clothes who approached the victim’s car. Although the defendant and Driggers were cousins, and although the defendant, Driggers, and a third young man sometimes sold drugs together in the area, there was no evidence that the defendant was present or had anything to do with this incident.
A few hours later (at around 2:00 a.m.), having smoked the crack cocaine and wanting more, the victim and his fiancée returned to a spot about one hundred yards from where they had stopped previously. They were in the same car, with the victim again in the passenger seat, and again with no intention of paying for the drugs. The defendant, dressed in a light-colored jacket, approached the car and asked what the victim wanted. When the victim said he wanted cocaine, the defendant walked around a building, out of sight of the vic
A Boston police officer testified that a few days later he stopped the defendant on the street. A police radio, loud enough for the defendant to hear, reported that the defendant was “wanted by homicide.” The defendant immediately knocked over two other officers and fled, finally being arrested a quarter of a mile away.
The grand jury testimony in issue came from Alicia Carr, one of the two young women who lived near the scene of the incident and testified at trial. At both the trial and at the proceedings before the grand jury, which took place only three weeks after the shooting, she testified that she had observed the defendant and Driggers in conversation before the shooting. A member of the grand jury asked her, “[Wjhat were they talking about?” Carr answered: “They came the first time and they wanted five gems and they had run off with their five gems and they didn’t pay them. So [Driggers] said when he seen them, he was going to shoot them.” According to Carr’s grand jury testimony, the conversation took place “[o]utside earlier that night before he shot at them.” At trial, Carr denied knowing what the defendant and Driggers said in the course of their conversation. On voir dire and on cross-examination, she admitted that she made the statement before the grand jury but testified that she had misunderstood the juror’s question and that she had been told about the conversation between Driggers and the defendant but had not actually heard it.
Defense counsel objected to Carr’s grand jury testimony on various grounds, including a lack of sufficient corroboration, but the judge overruled the objection, stating his view that there was other sufficient evidence linking the de
In Commonwealth v. Daye, 393 Mass, at 74-75, as one of the prerequisites for admitting an inconsistent statement made before the grand jury relating to identification, the court required corroboration of the statement by other identification evidence, but left open what other corroboration would be required where the issue was not identification. In this case, the prior inconsistent statement before the grand jury related to the defendant’s state of mind, particularly with respect to his knowledge. That seems to us no less central to the defendant’s conviction than was the issue of identification in Commonwealth v. Daye, 393 Mass, at 65, 74. Absent proof of the defendant’s culpable state of mind, he could not be implicated in a shooting by another person. See Commonwealth v. Burrell, 389 Mass. 804, 807 (1983).
Although in its brief discussion of the corroboration requirement the court in Commonwealth v. Daye, 393 Mass, at 74-75, cited for comparison purposes Commonwealth v. Forde, 392 Mass. 453, 457-458 (1984) (concerning the cor
A helpful test, sometimes relied upon elsewhere, for determining whether grand jury testimony is adequately corroborated has been set forth in United States v. Orrico, 599 F.2d 113, 119 (6th Cir. 1979), in the following terms: “[Statements before a grand jury] may be used to corroborate evidence which otherwise would be inconclusive, may fill in gaps in the Government’s reconstruction of events, or may provide valuable detail which would otherwise have been lost through lapse of memory.” However, such statements may not support a conviction when they are “the only source of support for the central allegations of the charge.” Id. at 118. See
We turn to the evidence presented at trial to determine whether there is reasonable support, apart from the grand jury testimony, for the central allegations of the charge, that the defendant knew of the earlier incident involving the victim and of Driggers’ intent to shoot him and that the defendant shared that intent.
We think the evidence, apart from Carr’s statement to the grand jury, left the issue of the defendant’s knowledge and intent a matter of speculation. There is no evidence that he was present during the first incident and, thus, no evidence of any hostility towards the victim. See Commonwealth v. Mandile, 403 Mass, at 100. Neither the fact that the defendant and Driggers were cousins, nor the fact that they, along with another, sometimes sold drugs together, is indicative of the defendant’s specific knowledge of the earlier incident or of Driggers’ intent to take revenge on the victim by shooting him. As none of the witnesses testified to having seen a gun before Driggers was approaching the car,
The most significant evidence, of course, is the exchange of jackets. Given the likely purpose of the exchange, to mislead the victim and his fiancée about Driggers’ identity, the defendant’s participation furthered the criminal plan. Without some indication of the content of any conversation that might have taken place between Driggers and the defendant before the clothing exchange, however, we would have to speculate about what reason for it Driggers might have expressed to the defendant. Although Driggers may have discussed with the defendant his intention to shoot the victim, it is just as likely that he asked the defendant for his jacket without explaining why he wanted it or that he gave a false or vague reason, for example, that he wanted to threaten or frighten the victim. It is of some significance that, according to the evidence, Driggers left the scene immediately after the shooting but the defendant did not.
Finally, in light of the defendant’s drug activities, the evidence of his flight from the police several days after the shooting, while admissible, would not be enough to take the evidence over the required threshold. Compare Commonwealth v. Stewart, 398 Mass, at 349-352. We conclude that Carr’s testimony before the grand jury was insufficiently corroborated because it was the only reasonable support for the central allegation of the charge, and any inference as to that allegation which could be derived from the other evidence was “impermissibly remote.” Commonwealth v. Mandile, 403 Mass, at 101.
The judgment is reversed, the verdict is set aside, and a new judgment is to be entered for the defendant.
So ordered.
In Commonwealth v. Daye, 393 Mass, at 73-75, the court abandoned the common law rule that such evidence was'admissible only for impeachment purposes and held that “a prior inconsistent statement is admissible as probative if made under oath before a grand jury, provided the witness can be effectively cross-examined as to the accuracy of the statement, the statement was not coerced and was more than a mere confirmation or denial of an allegation by the interrogator, and other evidence tending to prove the issue is presented.” Id. at 75. See also Commonwealth v. Berrio, 407 Mass. 37, 45 (1990); Commonwealth v. Tiexeira, 29 Mass. App. Ct. 200, 203-204 (1990). Compare Commonwealth v. Fort, 33 Mass. App. Ct. 181, 186 (1992). Such evidence is admissible under Fed.R.Evid. 801(d)(1)(A).
The victim’s fiancée testified that the “kid in the dark blue hood” (Driggers) “pulled out a gun” when he was at the car talking to the victim. The witness Alicia Carr was asked whether she saw anything before Driggers “got out to the car.” She said, “Yes . . . The black handled gun.” She was then asked, “Did you see "the gun before or after [Driggers] put on the jacket he got from [the defendant]?” She answered, “I think it was after.” She testified, further, that Driggers put the gun in his pants and went up to the car. The other young woman who lived in the project and