A jury fоund the defendant, Ronald Qualls, guilty of two indictments charging murder in the first degree, assault and battery by means of a dangerous weapon, assault by means of a dangerous weapon, and unlawful possession of a firearm. The assault by means of a dangerous weapon charge was placed on file with the defendant’s consent. The defendant was given consecutive sentences of life imprisonment without parole on the murder convictions. He also received sentences of from nine to ten years on the assault and battery
The evidence rеlevant to this appeal is as follows. At approximately 10:30 p.m. on October 2, 1992, Ronald Price, known as “Dallas,” and his brother, Roosevelt Price, known as “Tony,” left their mother’s apartment located in the Orchard Park housing project in the Roxbury section of Boston and went to a nearby bar called the Biarritz Lounge. They were soon joined there by two friends, Leroyal Holmes and Fred Monroe. The defendant was also present in the bar, accompanied by Junior Williams.
Dallas approached the defendant around 1:30 a.m. on October 3 and said, “I heard you [have] been looking for me on Shawmut.” The defendant responded, “I don’t even know you, man,” to which Dallas stated, “Pm the one that stabbed your cousin.” Dallas and the defendant then separated, but a few minutes later a fight erupted between them. Dallas’s brother, Tоny, became involved, putting the defendant in a headlock. Others in the bar broke up the fight and the defendant was escorted to the sidewalk just outside the bar. Tony then left the bar and the defendant approached him. After exchanging words, the defendant and Tony began to fight. The defendant stabbed Tony underneath his right armpit with a knife. Leroyal Holmes grabbed the knife from the defendant and separated the two combаtants.
Meanwhile, inside the bar, Junior Williams had initiated a heated confrontation with Dallas. The two men grasped each other’s jackets. Dallas said to Williams, “I don’t understand why you’re with [the defendant] against me,” and “You’re supposed to be my cousin, how [can] you turn on me for another person . . . ?” Williams responded, “I’m not your cousin no more . . . [the defendant is] my [friend] from Columbia Point. . . [he’s] down with me.” Williams also told Dallas that he wаs not going to lose his friendship with the defendant because the defendant “puts his life on the line [for Williams] every day.” Dallas and Williams were ultimately separated. Williams then left the bar, and the defendant and Williams drove away in Williams’s black Ford Escort automobile, with Williams driving and the defendant in the passenger seat.
A dark Ford Escort then came into view on Washington Street and turned abruptly down Palmer Street, disappearing behind a building. Dallas observed, “There goes Junior [Williams’s] car.” Holmes, being concerned, walked across the parking lot toward Palmer Street to investigate.
When Holmes arrived at the comer of the parking lot nearest Palmer Street, a man identified at the trial by Holmes, Monroe, and Buford as the defendant, came around the comer and into the parking lot. After exchanging words with Holmes, the man drew a revolver and pointed it at Holmes, demanding that Holmes get out of his way. Holmes stepped aside, and the gunman proceeded across the parking lot toward the Geo Tracker. Holmes then yelled to his friends that the person approaching the Geo Tracker had a gun. Monroe and Buford ran from the Geo Tracker, while Dallas and Tony, who had climbed into the back seat, remained there. Carrington slouched down beneath the steering wheel and did not get a good look at the gunman. The gunman approached the back window of the Geo Tracker and fired one or more bullets at Dallas and Tony in the back seat. He then moved to the passenger side window, which was lоwered, and fired one or more additional bullets at Dallas and Tony. The gunman then ran down Washington Street, past Monroe and Buford. Dallas had been struck by one bullet and Tony had been struck by two bullets.
Carrington then drove the Geo Tracker a very short distance to the building in which Tony’s girl friend lived, and Tony, who had been seriously wounded, got out of the Geo Tracker. Holmes and Monroe drove Dallas to the hospital where he was pronounced dead.
The police were called to the building in which Tony’s girl friend lived and, when they arrived, they encountered Tony,
On the first day of trial, the Commonwealth filed a motion in limine for leave to introduce evidence of out-of-court statements made by Dallas Price “indicating that the defendant was seeking to kill him.” The prosecutor argued that the testimony was admissible to show Dallas’s state of mind. Over the defendant’s written оpposition, the judge allowed the Commonwealth’s motion.
Edie Price, the mother of Dallas and Tony, then testified that, when Dallas returned home from the Biarritz Lounge briefly on the night of the shooting, he said to her, “ [Everywhere I go and I look back, [the defendant] is right behind me, looking right over my shoulder . . . [the defendant is] the one that was threatening me all the time. ... I think he’s going to try to kill me tonight.” After Edie Price testified, defense counsel renewed his objection, and the judge instructed the jury as follows:
“Ordinarily, we do not permit a witness to testify to a conversation with someone else. However, we do have some exceptions to that hearsay rule and, in this case, I’m permitting this witness to testify as to what her son said to her that evening for a very limited purpose: one, as evidence of possible motive in the case — it is for you to decide eventuаlly whether or not it is evidence of motive of anything or if it isn’t — and, also, as evidence of the state of mind of her son at the time she alludes to, evidence of her son’s state of mind, not for the truth of the words asserted actually.”
Marie Fletcher, Dallas’s girl-friend, testified that on the night before the shooting, Dallas said to her, “[RJemember, I told you about this dude, Ron Qualls, that wanted to kill me. . . . [The defendant is] after [me] for something that haрpened a long time ago. . . . [H]e’s gonna kill me.” Before Marie Fletcher testified, the judge referred the jury to the
The judge repeated that instruction after September Sturrup, Dallas’s close friend, testified. She testifiеd that approximately one week before the shooting, Dallas said to her that the defendant “was back and [Dallas] felt like [the defendant] was going to get him this time.” Sturrup testified that Dallas also said, “Either [the defendant’s] going to get me or I’ll have to get him.” In addition, she testified that a few years before the shooting, as she and Dallas were walking in Orchard Park, Dallas saw the defendant and commented, “[H]ere comes that dude again . . . [d]on’t turn around. . . I’m going to cut through the building and I’ll meet you up on Dudley.”
Leroyal Holmes testified that, in the Biarritz Lounge on the night of the shooting, Dallas stated that his “worst enemy was in the bar.” The judge, once again, referred the jury to the limiting instruction.
On every occasion that the Commonwealth elicited the above testimony, defense counsel objected and those objections were overruled. At the closе of the Commonwealth’s case, defense counsel moved to strike the testimony “relative to Dallas Price’s state of mind, and whether or not that reflects on [the defendant’s] motive or feeling towards Dallas Price.” The judge denied the defendant’s motion.
“The broad rule on hearsay evidence interdicts the admission of a statement made out of court which is offered to prove the truth of what it asserted.” Commonwealth v. DelValle,
In its argument that the judge did not commit reversible error by admitting evidence of Dallas Price’s state of mind, the Commonwealth’s principal focus is on the testimony of September Sturrup. The Commonwealth also argues, although briefly, that Lerоyal Holmes’s testimony was admissible. The Commonwealth does not argue, however, that the state of mind testimony given by Edie Price and Marie Fletcher was properly admitted. Instead, the Commonwealth makes the following two statements in its brief: (1) “Although perhaps it would have been better if the statements made by Marie Fletcher and Edie Price had not been offered, the balance of the testimony was properly admitted as probative evidence of the victim’s state of mind toward the defendant, and therefore there was no reversible error”; (2) “Although it was probably error to admit the statements of Edie Price and Marie Fletcher . . . such evidence was merely cumulative of other, properly admitted evidence, and therefore no reversible error occurred.”
As we have said earlier in this opinion, Septеmber Sturrup testified that approximately one week before Dallas was shot Dallas told Sturrup that the defendant “was back and [Dallas] felt like [the defendant] was going to get him this time.” Sturrup also testified that Dallas also said, “Either [the defendant’s] going to get me or I’ll have to get him.” In addition, Sturrup testified that a few years before Dallas was shot,
For the most part, these statements went no further than to indicate Dallas’s fear of the defendant. A murder victim’s statement that he feared the defendant, even if made known to the defendant,, sheds no light on whether the defendant had a motive to kill him, and therefore is not admissible in the defendant’s trial for murder. See Commonwealth v. Cyr, ante 89, 92-95 (1997); Commonwealth v. Williams,
Dallas’s statement, as testified to by Sturrap, that either the defendant would get him or he would get the defendant, perhaps could be construed not so much as indicating fear but as indicating Dallas’s intention to “get” the defendant. In any event, unless that state of mind was communicated somehow to the defendant, it sheds no light on the defendant’s state of mind, and it is the defendant’s state of mind that is at issue. The prinсipal danger in admitting evidence of a homicide victim’s fear of the defendant or desire to “get” the defendant when there is no evidence of the defendant’s awareness of the victim’s state of mind is that the jury will consider the victim’s statement of fear or intention, standing alone, as somehow reflecting on the defendant’s state of mind rather than that of the victim. See United States v. Brown, supra at 766.
The Commonwealth directs our attention to Commonwealth v. Weichell,
We reach the same result with respect to Leroyal Holmes’s testimony that, in the Biarritz Lounge on the night of the shooting, Dallas stated that his “worst enemy was in the bar.” There was no evidеnce that Dallas’s state of mind as reflected by that statement was known to the defendant when the shooting occurred. The evidence should not have been admitted. Also, we are content, as the Commonwealth appears to be, that the evidence concerning Dallas’s state of mind presented through the testimony of Edie Price and Marie Fletcher should not have been admitted. Their testimony was admitted only to establish Dallas’s state of mind — his fear — and under the DelValle, supra, line of cases was inadmissible.
Having concluded that the state of mind evidence we have been discussing should not have been admitted, the question before us is whether “the error[s] possibly weakened [the defendant’s] case in some significant way so as to require a new trial.” Commonwealth v. Schulze,
The only disputed issue at the trial was the identity of the gunman. An important consideration would be whether the defendant had a reason — a motive — to kill either Dallas or Tony. In his limiting instructions to the jury concerning the four witnesses’ testimony as to what Dallas had told them,
The Commonwealth reliеd principally on identifications of the defendant by Holmes, Buford, and Monroe, who testified that they were familiar with the defendant. However, the credibility of these witnesses was impeached by the evidence of the witnesses’ prior convictions, the existence of outstanding warrants against them at the time of the murders, and felony charges against them at the time of their testimony. Holmes had been previously convicted of carrying a firearm without a license, unlawful possession of ammunition, possession of cocaine with intent to distribute, unlawful possession of marihuana, distribution of marihuana, and conspiracy to violate the drug laws. At the time of trial, Holmes was awaiting prosecution on charges of distribution of cocaine and receiving a stolen motor vehicle.
Buford had been previously convicted on twо separate occasions of possession of cocaine with intent to distribute, distribution of cocaine, unlawful possession of a firearm, and conspiracy to violate the drug laws. At the time of trial, Buford stood charged with unlawful possession of a firearm, and at least two offenses related to the possession of illegal drugs with intent to distribute.
Monroe had been previously convicted of conspiracy to violate the drug laws. At the time of trial, Monroe faced pending charges of assault and battery by means of a dangerous weapon, threats, and possession of a stolen motor vehicle. There was no physical or scientific evidence that decisively resolved the question of the killer’s identity.
The defendant presented statements made by Tony Price to two police officers аs he was dying from the gunman’s bullets (dying declarations) that “Junior [Williams] did it.” There was evidence that Dallas Price and Williams had a confrontation at the Biarritz Lounge earlier on the evening of the murders. It was also undisputed that it was Williams’s Ford
"In this context, it seems clear that the Commonwealth’s case against the defendant may have been significantly enhanced by the introduction of statements made by one of the victims in the hours, days, and weeks prior to the murders expressing fear that the defendant was going to kill him. Dallas’s statements that he was afraid that the defendant would kill him could have been seen by the jury as “a prophecy of what might happen to him,” United States v. Day,
In a case quite similar to this one, United States v. Brown, supra at 762, the court considered the prejudicial effect, in a prosecution for murder, of an improperly admitted statement made by the victim to his wife prior tо his death that he was frightened that the defendant would kill him. The court concluded that:
“clearly a palpable danger exists that the jury will infer from the statement of [the victim’s wife] . . . that [the victim] stated T am afraid I will be killed by [the defendant],’ that [the defendant] was a man capable of murder, that he had done things in the past to [the victim] to justify this fear, or that [the defendant] had explicitly threatened [the victim’s] life in the past. Any or all of the above conclusions are inevitably present in the jury’s collective mind. Yet all such inferences insofar as they may' reflect on defendant’s intentions or past conduct would be improperly drawn. Moreover, the statement is extremely closely related to the issues at hand. The defendant here directly placed his identity in issue, and the challenged testimony expressly names him as the probable murdеrer. To the jury it must have been as simple as this: [the victim] feared being killed by [the defen*173 dant], and sure enough [the victim] was killed. Therefore, odds are good that it was done by [the defendant]. Thus the danger that the statement in question would be misused by the jury on the disputed issue of identity is extremely high.”
Id. at 778-779.
In addition to eliciting Dallas’s statements from the Commonwealth’s witnesses, the prosecutor referred to these statements in both her opening and сlosing arguments. In her closing, the prosecutor told the jury that they “had more than identification in this case. You have evidence of motive,” and then recounted the testimony concerning Dallas’s statements of fear of the defendant. In this case, “ ‘we cannot say that the evidence and the prosecutor’s [use of it in her] argument did not have the effect the Commonwealth intended it to have.’ Commonwealth v. Reed,
The judgments are reversed, and the verdicts are set aside. The cases are remanded to the Superior Court for a new trial.
So ordered.