The defendant was convicted of felony-murder in the first degree. The underlying felony was an armed robbery while masked. The defendant appealed. He filed a motion for a new trial, which was denied by the trial judge. The appeal from the denial of the motion was consolidated with his direct appeal. On appeal he asserts error in (1) the admission of evidence of accusations by police during custodial interrogation, together with evidence of the defendant’s blanket denials and his silence, and (2) the failure to declare a mistrial based on evidence of alleged juror intimidation. We affirm the conviction, affirm the order denying the motion for a new trial, and decline to reduce the degree of guilt or order a new trial.
1. Background. The jury could have found the following facts. We reserve other details for discussion of particular issues. At 3:49 a.m. on February 12, 2004, a man entered a 7-Eleven convenience store on Western Avenue in Lynn. He approached the store clerk and demanded that he open the cash register. He then stabbed the clerk once in the chest, stole about $403 in cash from the register, and fled. The storе clerk died as a result of the stab wound. The incident was recorded by four security video cameras in the store. The perpetrator’s facial features were partially concealed by a hat and towel around his head.
The videotape showed the defendant entering the store twice shortly before the incident, first at 3:12 a.m. and again at 3:17 a.m. His clothing differed from that worn by the perpetrator, but his height, weight, and gait were similar. The perpetrator wore a pair of sneakers that were similar, based on seventeen points of comparison by an еxpert witness, to sneakers worn by the defendant on January 18, 2004, as seen on a videotape showing him inside that 7-Eleven store on that date. During his first entrance on February 12, the defendant’s coat was open, he wore nothing on his head, and he purchased a fruit drink. When he entered the second time his coat was closed, he wore a hat pulled
The defendant was arrested on February 14, 2004, after police obtained the videotape created by the security cameras in the store and recognized the defendant. Police searched his home for the clothing worn by the perpetrator, but found none. However, the defendant owned gloves, as well as sneakers, similar to those worn by the perpetrator.
The defendant waived his Miranda rights and spoke with police. He said he often went to this 7-Eleven store. When asked to describe his whereabouts in the early morning of February 12, the defendant began by saying he was awakened by the crying of his thirteen month old son. He yelled at his son, which resulted in an argument between the defendant and his wife. He said he left and went to the 7-Eleven store, arriving at about 2 a.m., and bought a fruit drink. He then went home. The defendant told the officers he had been inside the store only once that night. After he was confronted with photographs showing him inside the store a second time, he said he had returned to the store to buy diapers, then decided instead to return the next day after he received his paycheck. When asked why, after his first entrance into the store and before his second, he stood in the doorway for two seconds without entering, the defendant was silent, and the interview continued. He denied any involvement in the robbery and the killing. He never mentioned going to Hess after leaving the 7-Eleven store.
Before trial, the defendant was held as a pretrial detainee, sharing a cell with another inmate. That inmate testified that the defendant told him he had robbed the 7-Eleven store and stabbed the clerk. The inmate admitted that he expeсted consideration in his pending felony case from the district attorney in exchange for his cooperation in the prosecution of the defendant. He conceded that he could have reviewed the defendant’s legal
The defendant offered alibi testimony of his wife to the effect that he went out between 2:25 and 2:30 a.m. on February 12, and returned within one hour.
2. Accusations and denials. The defendant argues that the judge erroneously admitted, over objection, two extrajudicial accusatory statements by police during his custodial interrogation, and his unequivocal denials of those accusations.
Shortly after his arrest, the defendant was interviewed at the Lynn police station by Lieutenant Gerald Stevens of the Lynn police department and Lieutenant Norman Zuk of the State police. He was advised of the Miranda rights, he waived his rights, and he agreed to speak to the officers. The interview was not tape-recorded.
The prosecutor rephrased his question and Lieutenant Zuk essentially repeated what he had said before, without objection. He further testified that he told the defendant that “the whole event was recorded on video and it was also recorded with audio, аnd you could hear him speaking and you could also hear the clerk scream when he was stabbed.” The defendant responded by saying, “It wasn’t me.”
Later in his direct examination Lieutenant Zuk testified that he and Lieutenant Stevens showed the defendant three still photographs taken from the videotape. Lieutenant Zuk showed the defendant a photograph taken at 3:12 a.m. on February 12, depicting the defendant in the store with no hat and coat unzipped. He said to the defendant, “Here you are coming in, buying your drink. You’re looking around.” Defense counsel objected оn
Extrajudicial accusatory statements made in the presence of a defendant, which he has unequivocally denied, are hearsay
The Commonwealth contends that this rule only applies when the entire statement consists of an accusation and a denial. We disagree. It applies equally to such exchanges made within the context of a larger statement. See Commonwealth v. Diaz,
The defendant contends that both accusations are fully preserved for appellate reviеw. We disagree. Defense counsel successfully objected to the statement that contained the first allegedly accusatory statement, but he did not move to strike the statement. This
The defendant argues that his denials, distinct from the accusations, are a matter of constitutional dimension, and review should be conducted under the harmless beyond a reasonable doubt standard. He relies on Commonwealth v. Diaz, supra at 274, citing Commonwealth v. Nawn,
The court in Nawn could have affirmed the ruling on grounds that the accusation and the denial cоnstituted inadmissible hearsay based on our long-standing common-law evidentiary rule. See, e.g., Commonwealth v. Trefethen, supra; Commonwealth v. Henry,
To the extent that Commonwealth v. Diaz, supra, relied on Nawn and applied the harmless beyond a reasonable doubt standard to a defendant’s denial of an accusation (as opposed to an exercise of his right to remain silent), after he waived his Miranda rights, it is overruled. Instead, we apply the prejudicial error standard long applied both to accusations and denials. See Commonwealth v. Cruz,
Turning to the claims of error, we need not define the precise limits of an accusation because Lieutenant Zuk’s statements called for an admission or a denial of a single fact, i.e., the identity of the perpetrator, which was the only question in dispute. In each instance Lieutenant Zuk asserted first indirectly, then directly, that the defendant committed the robbery and homicide. If the defendant admitted either assertion, he effectively would have confessed to the crimes. See Commonwealth v. Twombly, supra at 465. These pointed assertions are clear accusations that the defendant robbed and killed the store clerk, both of which were unequivocally denied by the defendant.
Also weighing against prejudice was the availability of Lieutenant Zuk, the accuser, for cross-examination about his observations of the videotape and photographs, and the availability of the videotape and the photographs as exhibits. Contrast Commonwealth v. Twombly, supra (accusations, denied by defendant, made by one who did not testify and not available for cross-examination were prejudicial and required nеw trial).
Other evidence supported a finding that the defendant actually committed the crime, including his statement to police (which the jury could have found implausible) that he zipped his coat and pulled his hat over his head before making his second entrance (but not his first entrance) because “[i]t was cold out.” This evidence, together with his behavior as seen on the videotape during his second entrance, suggests that he was concerned about being identifiable on the video monitor, a concern the jury could determine generally is not shared by the ordinary convenience store patron. In addition, evidence that the defendant admitted being in the store once but changed his story after having been confronted with evidence of the still photographs from the video camera, together with his failure to mention Hess (which we discuss later), suggests he was purposefully withholding information he thought the police did not know. Collectively, this was evidence from which the jury could infer a guilty mind as to matters relevant to the case. The jury also heard evidence from a photographic
Neither did the admission in evidence of the defendant’s denials cause prejudice. The core of any prejudice is more likely caused by admission of the accusations than the denials. The jury were able to hear evidence of his prompt, clear, and emphatic denials without his having to testify, something generally of great value to defendants. See Nawn, supra at 4-5 (defendant unsuccessful in attempt to overturn mle excluding accusations made to him, and his responsive denials). Cf. Commonwealth v. Eugene,
We conclude there was no prejudice in the admission of the accusation and denial evidence.
3. Defendant’s silence. The defendant contends that his right to remain silent was violated three times in relation to his interrogation by police. The first occurred after the defendant told the officers he went inside the store only once, in response to their question about the number of times he had entered. Lieutenant Zuk commented, “Leo, do you really want me to write that down?”
The defendant asserts that his privilege against self-incrimination was violated a second time when testimony was admitted that, in response to Lieutenant Zuk’s question why he had appeared
The third instance cited by the defendant was his failure to tell police he had been to Hess. The prosecutor argued in closing that this failure was part of a false alibi strategy.
There was no objection; we review to determine if there were error and, if so, whether it created a substantial likelihood of a miscarriage of justice. Commonwealth v. Wright,
Contrary to the defendant’s claims, none of these incidents was an impermissible comment on an exercise of his right to remain silent, Doyle v. Ohio,
His statement to the effect that he had no intention of signing anything was nothing more than a refusal to sign a writing, which did not render the statement inadmissible. See Commonwealth v. Pina,
The defendant’s silence in response to Lieutenant Zuk’s query into his reason for standing оutside the store for two seconds without entering was not an exercise of his right to remain
The final assertion of error concerns the prosecutor’s comment on the defendant’s failure to tell police during his interrogation that he had been to Hess after leaving the 7-Eleven store. When asked to describe his whereabouts during the early morning hours of February 12, the defendant never mentioned going to Hess. He telephoned his wife from the house of correction where he was being held and asked her if his credit card statement had arrived. He said it would show he was at Hess. He asked her to tell no one about it. The Hess purchases that appeared on his credit card statement, which were generated by the credit card apparatus at the Hess station, erroneously showed that the defendant’s first credit card transaction occurred at 3:08 a.m., when in fact it occurred at 3:37:58 a.m., according to credit card company internal records. Relying on this evidence, the prosecutor argued that the defendant did not tell the officеrs about going to Hess because he was trying to set up a false alibi and eventually was unable to follow through because he was unaware that the Hess records were inaccurate.
4. Juror intimidation. At the beginning оf the fifth day of trial the judge told the parties he had received reports that spectators in the court room, possibly friends or family members of the defendant, made comments that were overheard by jurors 7 and 12 that were at best inappropriate, and “smack[ed] of juror intimidation.” Before conducting an individual voir dire of
The judge proceeded with an individual voir dire of the jury. All but four of the thirteen jurors heard nothing that caused them any concern. Juror 5 expressed being “a little concerned when I leave .... There seems to be a lot of people in the area that are just kind of staring down.” Juror 5 stated such feelings would not create any difficulty in continuing to serve as a juror, and juror 5 assured the judge of continued objectivity. Juror 7 stated, “[Wjhen we walk in or come back from lunch, they horde around the front of the building. They don’t easily let you pass. And there are comments made . . . [such as] ‘That’s one of the jurors.’ And then I just try and walk fast.” Juror 7 assured the judge, “I still have the ability to make a rational decision.” Juror 10 said a spectator from the court room asked, “How’s your day?,” when the juror walkеd out of the court house on the first day. The juror felt uncomfortable, but said it would not affect “my ability” to be fair and impartial. Juror 12 expressed discomfort the previous day over spectators “gathering outside the court room when we’re trying to leave,
Defense counsel did not object to any portion of the voir dire. Hе expressed his separate satisfaction with each individual voir dire, and with the voir dire generally. He did not move for a mistrial.
The defendant argues that the judge erred by not declaring a mistrial. He reasons that the individual voir dire was inadequate because the judge failed to follow the prescribed course for deciding whether jurors have been exposed to extraneous information. His reliance on cases such as Commonwealth v. Kincaid,
“When a judge determines that the jury may have been exposed during the course of trial to material that ‘goes beyond the record and raises a serious question of possible prejudice,’ he should conduct a voir dire of jurors to ascertain the extent of their exposure to the extraneous material and to assess its prejudicial effect” (emphasis added). Commonwealth v. Francis,
A judge has discretion in this area, including whether to
The judge’s collective inquiry of the jury comported generally with the procedure this court recommended in Commonwealth v. Jackson, supra at 800, but we think his prefatory remarks could have planted a fear in a juror’s mind that otherwise did not exist. That said, any error likely would have been exposed by the ensuing individual voir dire, which also comported with the procedure called for in Commonwealth v. Jackson, supra.
Each juror was asked if he or she had overheard anything or reсeived any communication that may have caused that juror any concern during the trial. Additionally, each juror was asked if he or she could continue to be objective and consider the case without any particular concern or fear. This would have included the judge’s prefatory comments. The judge was entitled to rely on each juror’s statement that he or she remained unaffected and impartial. See Commonwealth v. John,
We give deference to the judge’s decision allowing each juror to remain seated, Commonwealth v. Kamara, supra, which implicitly meant that he determined that each jurоr remained impartial. We conclude that the defendant has failed to show that any error in the manner in which the judge addressed the jury collectively resulted in a substantial likelihood of a miscarriage of justice, or that the judge abused his discretion in the manner in which he conducted the individual voir dire of the jury. We further conclude that there was no abuse of discretion in the retention of the jurors. There has been no showing of any need to declare a mistrial.
Judgment affirmed.
Order denying motion for a new trial affirmed.
Notes
he defendant would later tell police, “It was cold out,” in response to their request to explain the hat and closed coat.
The interview, but not the trial, occurred before our decision in Commonwealth v. DiGiambattista,
In a somewhat parallel situation, an assertion contained in a question put to a witness at trial, and denied, typically results in an instruction that there is no evidence in a question answered in such a manner. See, e.g., Commonwealth v. White,
We do not imply that police may not use accusatory statements as an investigative tool. Our rule simply excludes such statements from evidence if they were denied.
They may be admissible for other purposes, such as evidence of the voluntariness of a statement. Commonwealth v. Cruz,
We reject the Commonwealth’s suggestion that the denials may have been equivocal.
Counsel should present this type of statement to the judge in a pretrial motion in limine.
Lieutenant Zuk was taking notes during the interview.
We have held that even a thirty- to forty-minute period of silence in the middle of a lengthy interview was not an exercise of a defendant’s right to remain silent. Commonwealth v. Sicari,
Even had he known about the Hess records and used the actual credit card company records, there was enough time for him to return to the 7-Eleven store at 3:49 a.m. and commit the crimes.
The judge: “As I understand it from the court officers, at least two jurors have mentioned matters relating to their concerns of personal safety or invasion of their privacy in connection with this case. Am I correct about that, that certain concerns have been raised?
“Affirmative response.”
“First, I want to address you on a very important matter, and then I’m going to ask to speak to each of you over at sidebar, individually, with the attorneys. . . . We cannot have a system of justice where people who are the judges, the jurors, feel afraid in some way, because, frankly, you don’t render a fair verdict.
“So, I want to assure you of certain things. . . . [Jurors] often ask me the question, ‘In some way we fill out these confidential questionnaires, do people know where we live?’ Some of you may be concerned аbout it. And I always tell them that... I can understand these concerns. They’re often the basis of movies even, not very good movies, but movies where some figure might approach a juror before, during or after a trial, but that this type of thing does not frequently occur at all.”
The judge then assured the jurors that their confidential juror questionnaires were destroyed, and in any event did not contain their addresses or telephone numbers. He explained the details of a protocol he was instituting to ensure there would be no contact between jurors and spectators.
The defendant and the people in question are African-American.