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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
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Commonwealth v. Gordon, 422
Supreme Judicial Court of Massachusetts,
Middlesex.
Argued
Decided
[422
John H. Cunha, Jr.,
Robert L. Sheketoff,
Sabita Singh, Assistant District Attorney
(Richard W. Jensen, Special Assistant District Attorney, with him), for
Commonwealth.
Before LIACOS, C.J., and WILKINS, LYNCH and
O'CONNOR, JJ.
O'CONNOR,
Justice.
A
jury found the defendants Ventry Gordon and Sean Lee guilty of murder in the
first degree of Jesse McKie and Rigoberto Carrion and guilty of armed robbery
of McKie. They found the murders
committed by Gordon to have been premeditated and those committed by Lee to
have been felony‑murders. Ricardo
Parks, who was also charged with murdering McKie and Carrion and with armed
robbery of McKie, was acquitted of those charges. The jury found the defendant Ronald Settles
guilty of being an accessory after the fact of assault and battery by means of
a dangerous weapon on McKie. Settles was
acquitted on a second indictment charging being an accessory after the fact of
assault and battery by means of a dangerous weapon and on an indictment
charging being an accessory after the fact of armed assault with intent to
rob. Gordon, Lee, and Settles appeal
from their convictions.
The
following issues are raised on appeal:
(1) Did the trial judge's excuse of a potential juror, who was black,
deprive the defendants, who are also black, of their rights to a jury drawn
from a fair cross section of the community and to a fair trial? (2) Prior to empanelling the jury, the judge
examined the venire pursuant to G.L. c. 234, § 28 (1994 ed.). She asked the venire, as a group, questions
concerning their understanding of the Commonwealth's burden of proof. On the fourth day of jury selection, however,
after fifteen jurors had been seated, a member of the venire told the judge
during individual voir dire that he and others had experienced difficulty
hearing what she had said to the venire as a group. Gordon then moved for a mistrial on the
ground that some or all of the fifteen seated jurors might not have heard the
judge's questions to the jury as a group.
We shall discuss whether the judge's denial of that motion was
erroneous. [422 Mass. 819] 3) On the first morning of jury selection, after one hundred
venire members had entered the courtroom, the judge over objection excluded the
public, including members of the defendants' families, from the courtroom due
to lack of available seating. The judge
then considered requests of jurors to be excused from service because of
hardship. The issue is whether the judge
interfered with the defendants' rights to a public trial when she excluded
members of their families from the courtroom during the hardship
colloquies. (4) Originally, Lazell Cook
was a codefendant with Ricardo Parks Gordon, Lee, and Settles. See
Commonwealth v. Cook, 419 Mass. 192, 195, 644 N.E.2d 203 (1994). Before trial Gordon moved unsuccessfully for
severance. Cook's attorney told the jury
in his opening statement that there would be evidence that Gordon stabbed McKie
and Carrion and later admitted that he had done so. Then, relying substantially on Commonwealth v. Moran, 387 Mass. 644,
442 N.E.2d 399 (1982), Gordon renewed his motion for severance. The judge denied that motion. We must decide whether that ruling was
correct. (5) The fifth issue is whether
the judge erred by denying Gordon's motion for a mistrial following her mid‑trial
allowance of Cook's motion for severance.
(6) Did the prosecutor engage in such prosecutorial misconduct by
improperly appealing to the jury's sympathy in his opening statement,
presentation of evidence, and closing argument, that the defendants were denied
a fair trial? (7) Did the judge
reversibly err by allowing the Commonwealth to introduce in evidence a
videotape recording of the defendants' booking at the police station? (8) Did the testimony of the Commonwealth's witness,
Kevin Rollins, who was a party to a nonprosecution agreement, deprive the
defendants of their rights to a fair trial?
(9) Did the judge err in allowing the Commonwealth to introduce expert
testimony regarding blood splatter analysis?
(10) Did the judge err in allowing the Commonwealth's expert
witness to testify to her opinion that ortho‑tolidine tests conclusively
indicated the presence of blood on the defendants? (11) Was the defendant Settles denied a fair
trial when a witness identified him for the first time in the jury's
presence? (12) Did the judge commit
reversible error when she refused to allow the defendants to attend the jury
view? (13) Did the evidence warrant a
finding that the defendant Lee was guilty of the felony‑murder of Rigoberto
Carrion? (14) Did the judge err when she
refused [422 Mass. 820] to instruct the jury concerning the
possibility of Lee's having been the receiver of stolen property? (15) Did the judge commit reversible error as
to the defendant Settles when she instructed the jury on consciousness of guilt
without limiting the instruction to the other defendants? (16) Should this court reverse or reduce the
murder convictions of the defendants Gordon and Lee or either conviction
pursuant to G.L. c. 278,§ 33E (1994 ed.)?
We
recite facts that the jury would have been warranted in finding. Later, in conjunction with specific issues,
we shall discuss other facts that the jury properly could have found. On January 24, 1990, Settles drove his
friend, Kevin Rollins, to a liquor store.
While Settles waited in the van, Rollins went into the store to make a
purchase. When he emerged, Rollins found
that his friends, Gordon, Cook, and Parks, had also arrived at the store. The three men introduced Rollins to a fourth
man, Lee. Rollins invited Settles and
the others to his apartment to drink.
While at the apartment, Cook and Gordon displayed knives. They "flicked" them in front of the
others.
The
group left Rollins' apartment approximately one hour after arriving there. Settles drove the others to several
locations. Lee suggested that they go
"to the projects" so they could "rob some drug dealers." Gordon, Cook, and Parks agreed. Rollins and Settles did not agree. When they arrived at the Newtowne Court
housing project (Newtowne Court) by way of Lee's direction, the group
disembarked from the van and entered the courtyard. The entire group entered the courtyard except
Settles, who walked along the street outside the courtyard's entranceway.
Later,
Tracy Williams, Jesse McKie, and Rigoberto Carrion walked along the street in
front of the Newtowne Court entranceway.
Gordon, Cook, Parks, and Lee confronted them and pulled McKie into the
entranceway. The group surrounded McKie
and demanded the leather jacket that he was wearing. At first, McKie resisted and tried to keep
his coat on while the group tried to pull it off him. Suddenly, Gordon ordered, "Get
him." Gordon, Cook, Parks, and Lee
beat McKie and attempted to wrestle off his coat. McKie soon succumbed and pleaded with the
group to take his jacket and leave him alone.
They did not relent. As they
continued to beat McKie, Gordon pulled out a knife and stabbed him with [422 Mass. 821] a double thrust to his chest, puncturing McKie's heart. McKie cried for help. Williams left to get the police. Lee put on McKie's bloodied jacket. The group then threw McKie onto a snow bank
and kicked and punched him repeatedly as he lay there. McKie died within a few minutes.
Carrion
had seen the entire incident from the street outside Newtowne Court's
entranceway. When Carrion turned to walk
away, Gordon, Parks, Lee, and Cook pursued him.
When they caught up with Carrion, they pushed him into a chain link
fence and beat him. As they did so,
Gordon stabbed Carrion. As Carrion
struggled to get free, several members of the group kicked him. Carrion collapsed a few blocks away and died
less than a week later.
Soon
after the stabbings, the police pursued the suspects. They apprehended Parks and Lee and brought
them to the police station. Later, Cook
went to the station to bail Parks out.
Cook told the police that he had come to the station with his two
"buddies" who were waiting outside in a brown van. In the meanwhile, Williams, who had left the
crime scene to obtain police help, identified Cook as one of the
assailants. The police pursued the van,
and apprehended Settles and Gordon a few blocks from the station after the van
went the wrong way on a one‑way street.
We
shall discuss the issues in the order set forth above.
[1][2]
(1)
Excuse of a potential juror.
There were approximately 200 persons in the venire, only two of whom
were black. The judge asked the venire
present in the courtroom whether there was any reason why they could not sit on
a six‑week trial. One of the two
black venire persons came forward and told the judge that she was divorced, was
responsible for driving her son from Framingham to school in Weston every
morning, was nervous about driving to court and therefore would need public transportation
to court, "would be very stressed out" if she were on the jury, had
high blood pressure and took "a lot of medicines for it to try to keep not
too stressed out." General Laws c.
234A, § 40 (1994 ed.), provides:
"In the event a trial is expected by the court to last more than
three trial days, the trial judge shall announce this fact to jurors before the
jury is impanelled. The trial judge may
excuse a juror from performing his juror service on such an extended trial upon
a finding of hardship, inconvenience, or public necessity taking into
consideration the expected [422
Mass. 822] length of the extended
trial, but any juror so excused shall otherwise complete his term of juror
service." See also G.L. c. 234, §
1A (1994 ed.) ("If at any time it
appears that the public interest will be served by excusing any person from
jury service, or if the performance thereof will impose undue hardship or
unusual inconvenience upon any person, the judge presiding at the court or the
clerk/magistrate of the court to which the juror has been called for service
may excuse such person from jury duty").
In excusing the juror, the judge acted well within her "broad range
of discretion in the jury selection process." Commonwealth v. Barnoski,
418 Mass. 523, 530, 638 N.E.2d 9 (1994).
A defendant's right to a fair trial is not impaired by a potential
juror's being excused from service in the circumstances presented by the
excused juror in this case. Indeed,
insistence on a juror's service in such circumstances presents a risk of
unfairness not only to the juror but also to the Commonwealth and the
defendants.
(2) Motion for mistrial based on possibility
that some members of venire might not have heard judge's questions pursuant to
G.L. c. 234, § 28. As required by
G.L. c. 234, § 28, the judge posed questions to the venire as a whole that were
"designed to learn whether such juror[s] understand[ ] that a defendant is
presumed innocent until proven guilty, that the [C]ommonwealth has the burden
of proving guilt beyond a reasonable doubt, and that the defendant need not
present evidence in his behalf."
No response was forthcoming.
Several days later, as set forth above in our recitation of the issues
on appeal, a member of the venire indicated that some members of the venire had
not fully heard everything that the judge had said to the venire as a body and
so may not have heard the G.L. c. 234, § 28, questions. The judge offered to repeat the questions to
the jury after empanellment was completed.
The defendant Gordon moved for a mistrial, which was denied.
[3]
The judge's refusal to grant a mistrial was appropriate. No statutory violation had been shown, and
the judge's offer was well calculated to assure that the legislative objective
was met. Two days later, in her opening
instructions to the empanelled jury, the judge paraphrased three principles of
§ 28: "a defendant is presumed
innocent until proven guilty ... the Commonwealth has the burden of proving guilt
beyond a reasonable doubt, and ... the defendant need not present evidence[422 Mass. 823] in his behalf." Although the judge did not pose these
principles in a question format, none of the defendants objected. We are satisfied, as defense counsel appear
to have been, that the jury understood and accepted the three burden of proof
principles. The legislative objective,
therefore, was achieved.
[4][5][6][7]
(3)
Were the defendants' rights to a public trial violated by the judge's
exclusion of the public, including members of the defendants' families, from
the courtroom during colloquies between the judge and prospective jurors
seeking to be excused from service due to hardship or inconvenience? The courtroom was open to the public during
the remainder of the proceedings, including individual voir dire of each
prospective juror. The right to public trial is extended to
both the defendant and the public in a criminal proceeding. Commonwealth v. Martin, 417
Mass. 187, 192, 629 N.E.2d 297 (1994). Commonwealth v. Marshall, 356 Mass. 432,
435, 253 N.E.2d 333 (1969). The First
Amendment to the United States Constitution secures the public's right of
access to criminal trials, while the Sixth Amendment to the United States
Constitution secures the defendant's right to a public trial.
Commonwealth v. Martin, supra.
The guarantees of open public proceedings in criminal trials cover
proceedings for the voir dire examination of potential jurors concerning their
qualifications to serve. Press‑Enterprise Co. v. Superior Court,
464 U.S. 501, 508‑513, 104 S.Ct. 819, 823‑826, 78 L.Ed.2d 629
(1984).
Globe Newspaper Co. v. Commonwealth, 407 Mass. 879, 884, 556 N.E.2d
356 (1990). However, we have never held,
and we are aware of no case in which it has been held, that the right to public
trial extends to proceedings designed solely to enable the judge to hear
prospective jurors concerning their requests to be excused from service and to
dispose of such requests.
[8]
Analogous Massachusetts case law makes clear that the right to public trial
does not extend to proceedings to determine whether prospective jurors should
be excused on account of undue hardship or unusual inconvenience. In
Commonwealth v. Barnoski, supra, the defendant argued that "his right
to be present at all critical stages of his trial, guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights, see
Commonwealth v. Angiulo, 415 Mass. 502, 530, 615 N.E.2d 155 (1993), was
violated when the trial judge excused a significant portion of the jury pool,
for reasons of hardship, [422 Mass.
824] outside the presence of the
defendant and his counsel, and without a stenographic record." Id.
at 528, 615 N.E.2d 155. In rejecting
the defendant's contention, we held that "[t]he purely administrative
determination whether a prospective juror was able to serve without undue
hardship, for nearly one month, on a sequestered jury in a distant county, was
not a 'critical stage.' " Id. at 531, 615 N.E.2d 155. In
Barnoski, supra at 530‑531, 638 N.E.2d 9, we called attention to the
earlier cases of Commonwealth v. McKay,
363 Mass. 220, 223, 294 N.E.2d 213 (1973), and Commonwealth v. French, 357 Mass. 356, 400, 259 N.E.2d 195 (1970),
judgment vacated as to death penalty sub nom. Limone v. Massachusetts,
408 U.S. 936, 92 S.Ct. 2846, 33 L.Ed.2d 754 (1972), in which we held that a
defendant does not have a constitutional right to be present at preliminary
hardship colloquies of members of the jury pool. We distinguished those cases from Commonwealth v. Owens, 414 Mass. 595,
609 N.E.2d 1208 (1993), in which we held that a defendant is entitled to be
present when jurors are being individually examined. In
Barnoski, supra at 531, 638 N.E.2d 9, we quoted from Commonwealth v. Owens, supra at 602, 609 N.E.2d 1208, as
follows: "A defendant has a right
to be present when jurors are being examined in order to aid his counsel in the
selection of jurors and in the exercise of his peremptory challenges." As those cases make clear, there is a critical
distinction between hardship colloquies and individual examination of
prospective jurors as to their qualifications to serve. We conclude that, just as hardship colloquies
need not be conducted in the presence of the defendant and defense counsel,
they also need not be open to the public.
[9]
(4)
Gordon's motions for severance.
Counsel for Lazell Cook, originally a codefendant with Gordon, Lee,
Settles, and Parks, told the jury in his opening statement that the evidence
would show that Gordon stabbed McKie and Carrion and that Gordon subsequently
admitted to Cook he had done so. At the
conclusion of the opening, relying primarily on Commonwealth v. Moran, 387 Mass. 644, 442 N.E.2d 399 (1982),
Gordon renewed his earlier motion for severance which the judge had
denied. The judge denied the renewed
motion as well. There was no error.
In Commonwealth v. Moran, supra, two
defendants appealed from convictions of murder in the first degree and unarmed
robbery following a jury trial. We
reversed the murder convictions because the judge had failed to instruct the
jury that they must find conscious disregard
of risk to human life [422 Mass. 825] in order to apply the common law
felony‑murder rule. Id. at 651, 442 N.E.2d 399. We reversed the unarmed robbery conviction
also, but on the ground that the defendants should have been tried separately. Id.
at 660‑661, 442 N.E.2d 399. Moran is significantly distinguishable
from the present case. In Moran, there were only two defendants
and there were no eyewitnesses to the alleged criminal conduct. It was clear that "at least one
defendant, but not necessarily both of them, robbed and killed [the
victim]. The only realistic escape for
either defendant was to blame the other." Id. at 659, 442 N.E.2d 399. In concluding that severance of the trials
of the two defendants was required, this court reasoned as follows:
"Failure to sever in such
circumstances has several unacceptable consequences. First, each codefendant's jeopardy invites
his perjured testimony, to the detriment of the other codefendant. The Commonwealth's use of such testimony to
obtain a conviction is fundamentally unfair and does not serve the public's
interest in justice. Second, where there
is convincing evidence that a crime has been committed by at least one of the
defendants, a jury, disinclined for any reason to convict a particular
defendant, may be inclined to find the other guilty. There is a danger that the jury will feel
compelled to choose between defendants rather than to assess the proof against
each defendant separately. Finally, with
one defendant pitted against the other, there is a danger that the jury will
unjustifiably infer from the conflicting defenses alone that both defendants
are guilty. Rhone v. United States, 365 F.2d 980, 981
(D.C.Cir.1966). Moran's and Chenail's
defenses were mutually antagonistic and irreconcilable. The prejudice to each defendant was
compelling. Tried together, neither
defendant could have a fair trial.
Severance was required." Id.
We
distinguished a later case, Commonwealth
v. Sinnott, 399 Mass. 863, 507 N.E.2d 699 (1987), from Moran in a way that is significant to the present case. We said, "In Moran, the assault was witnessed by no one but the
defendants; and the prosecution's best
evidence tends to prove 'that at least one defendant, but not necessarily both
of them, robbed and killed [the victim].'
[Commonwealth v. Moran, supra
at 659, 442 N.E.2d 399]." By
contrast, the prosecution here produced four eyewitnesses, each of whom [422 Mass. 826] persisted under vigorous cross‑examination in testifying
that both defendants took active
parts in battering [the victim] (emphasis in the original).
"The
jury in this case were fully warranted in choosing to believe neither defendant
and to credit the eyewitnesses instead.
Where, as here, the jury enjoyed a highly probative option to rely on
neither defendant's account, we cannot say that there was a substantial
likelihood of a miscarriage of justice or that a joint trial denied the
defendants a fair trial." Id. at 874‑875, 507 N.E.2d
699. See Commonwealth v. Cordeiro, 401 Mass. 843, 853, 519 N.E.2d 1328
(1988) ("More importantly, no matter how inconsistent or antagonistic the
defenses or trial strategies of the two defendants, there is no compelling
prejudice and therefore no requirement of severance where the jury were
warranted in finding [the codefendant] guilty of the crime of aggravated rape
on the basis of the eyewitness testimony of the bartender and [the
codefendant's] own properly admitted confession").
The
present case is not governed by Moran. Unlike the facts of Moran, when Gordon moved for severance and when he later renewed
his motion, there were five defendants and three additional eyewitnesses to the
commission of the crimes alleged. Three
of the eyewitnesses identified Gordon as the killer of McKie and one eyewitness
identified Gordon as the killer of Carrion.
Each codefendant's jeopardy did not invite his perjured testimony that
Gordon, rather than others, was the perpetrator. This is not a case similar to Moran in which Cook or any of Gordon's
other codefendants could only avoid his own conviction by putting the blame
specifically on Gordon. The judge
properly denied Gordon's motions for severance.
(5) Gordon's motion for mistrial. During the testimony of a Cambridge
detective, the judge allowed Cook's motion for a mistrial and severance. Gordon then moved for a mistrial as to him based on
Cook's attorney's opening statement to the jury that there would be evidence
that Gordon had stabbed McKie and Carrion and had admitted to Cook that he had
done so. The mistrial and severance
occurred before Cook had an opportunity to testify. Gordon's counsel, therefore, had no
opportunity to cross‑examine Cook.
Counsel argued to the judge and argues now that without a declaration of
mistrial as to Gordon, Gordon was irreparably prejudiced by the opening
statement inculpating him which then became
[422 Mass. 827] unassailable, by
cross‑examination of Cook, as a result of Cook's departure from the case.
[10][11][12]
The judge correctly denied Gordon's motion for a mistrial. Such a motion rests within the sound
discretion of the trial judge. Commonwealth v. Chubbuck, 384 Mass. 746,
753, 429 N.E.2d 1002 (1981). As stated
above, three eyewitnesses identified Gordon as McKie's killer and one
identified him as the killer of Carrion.
Furthermore, the judge repeatedly instructed the jury that an opening is
not evidence on which the jury can rely in reaching their verdict. "[I]t must be presumed that in reaching
the verdict, the jurors heeded the judge's instructions."
Commonwealth v. Fidler, 377 Mass. 192, 199, 385 N.E.2d 513 (1979).
(6) Prosecutor's alleged improper appeal to the
jury's sympathy in his opening, presentation of evidence, and closing. The defendants, having made proper
objections at trial, argue that in his opening, in his presentation of
witnesses, and in his closing argument, the prosecutor made a calculated effort
to appeal to the jurors' sympathy for the victims, McKie and Carrion, and
persons close to them that they left behind, and in doing so sought "to
sweep [the] jurors beyond a fair and calm consideration of the evidence."
Commonwealth v. Graziano, 368 Mass. 325, 332, 331 N.E.2d 808 (1975),
quoting Commonwealth v. Perry, 254
Mass. 520, 531, 150 N.E. 854 (1926).
During
his opening, the prosecutor said to the jury:
"And you will learn, members of the
jury, and there will be evidence in this case, that the Newtowne Court housing
complex, like many other urban housing developments, was a place for people,
especially young people, gathered in the courtyards, on the street corners at
night, and on into the evening, looking for friends, looking for a familiar
face, looking for something to do.
"And you will learn, members of the
jury, and there will be evidence in this case, that like in any other urban
housing development, Newtowne Court had its share of problems with alcohol and
its share of problems with drugs, and all of the various problems that come and
are associated with drugs, and all of the problems that are associated with
alcohol.
"You will learn as well, members of
the jury, within [422 Mass. 828] that same housing project, in and
about that community, people live, people work, people raise their
families. And that evidence, members of
the jury, will direct your attention as well to some two years ago, the month
of January, 1990, to a time when Jesse McKie had just turned 21, and when Jesse
McKie's world evolved around two things;
his long time girlfriend, who at the time was seven months pregnant with
his child‑‑"
COUNSEL
FOR THE DEFENDANT SETTLES:
"Objection, your Honor."
THE
PROSECUTOR: "‑‑and his
interest and his love‑‑"
COUNSEL
FOR THE DEFENDANT LEE: "Objection,
Judge."
THE
PROSECUTOR: "‑‑and his
work‑‑"
THE
JUDGE: "Overruled."
COUNSEL
FOR THE DEFENDANT COOK: "I join,
your Honor."
THE
PROSECUTOR: "‑‑of
popular music. And that evidence will
direct your attention to a time when Rigoberto Carrion had just separated from
his wife and his young twin sons, and had returned to that community, to that
environment at the Newtowne Court housing complex where he and his 15 brothers
and sisters had all been raised, to a time, members of the jury when Jesse
McKie and Rigoberto Carrion often, perhaps too often, found themselves among
those groups of young people, feeling comfortable on the streets and in the
courtyards of Newtowne Court.
"You will learn, members of the
jury, about Jesse McKie and about Rigoberto Carrion, about who they were, where
they lived. What kind of lifestyle they
led is of secondary importance. Because
what is important is that Jesse McKie and Rigoberto Carrion are no more."
COUNSEL
FOR THE DEFENDANT SETTLES:
"Objection."
[422 Mass. 829] THE PROSECUTOR: "And they are no more, members of the
jury, because they were murdered, murdered in cold blood, by the
Defendants; Ventry Gordon, Sean Lee,
Ricardo Parks, and Lazell Cook, four complete and total strangers. Jesse McKie, Rigoberto Carrion, somebody,
anybody."
Three of the Commonwealth's first four
witnesses were family members or friends of the victims. Daryl Dottin testified that she was McKie's
girl friend and the mother of his daughter who was born a few months after his
death. She also testified that on the
day of the murder she had met McKie for lunch, at which time they had a
disagreement, and she called him later that afternoon and he was upset.
McKie's father, Todd McKie, testified
that the victim McKie lived with him and his wife. He identified two articles, which were on
McKie's person on the night of his death, as gifts to his son from him. The witness further testified that on the day
of the killing, the witness returned home from work at 5:30 P.M. and saw McKie
leave wearing a leather jacket which the witness identified for the jury.
Milagros Carrion, the sister of Rigoberto
Carrion, testified that her brother was living with her in January, 1990, and
that he had recently left his girl friend by whom he had fathered twins. The witness identified clothes in court as
clothes Rigoberto Carrion had worn on the night he was attacked.
In closing argument, the prosecutor said:
"You've
seen and heard from some forty witnesses, and over one hundred and twenty
physical exhibits have been introduced into evidence.... But, when all is said and done, members of
the jury, I suggest to you, that you need only look at the testimony of two
witnesses, and you need only look, members of the jury, at two individuals who
never came through that door, who never took that witness stand, who never told
you but a single word, to know what it was that happened on the morning of
January 25, 1990, in Newtowne Court.
Because the body of Jesse McKie, and the body of Rigoberto Carrion is
the best evidence you have in this case.
The body of Rigoberto Carrion, and the body of [422 Mass. 830] Jesse
McKie cannot be intimidated. [They]
cannot be confused. [They] cannot be
misled. Jesse McKie's body, and
Rigoberto Carrion's body speak for themselves loud and clear."
With respect to the prosecutor's opening,
the defendants especially focus on what they contend was the prosecutor's
reference to McKie's "long time girlfriend, who at the time was seven
months pregnant with his child," and to the prosecutor's reference to
Carrion's recent separation from "his wife and his young twin sons,"
as well as the reference to Carrion's surviving "fifteen brothers and
sisters." In reference to the
Commonwealth's witnesses, Dottin, Todd McKie, and Milagros Carrion, the defendants'
position is that the prosecutor's decision to present those witnesses was a
"calculated impropriety" because it was designed for the dominant, if
not sole, purpose of creating juror sympathy rather than proving the crimes
charged in the indictments. See Commonwealth v. Harris, 409 Mass. 461,
468‑469, 567 N.E.2d 899 (1991); Commonwealth v. Andrews, 403 Mass. 441,
450‑451, 530 N.E.2d 1222 (1988).
Similarly, the thrust of the defendants' argument here regarding the
prosecutor's closing argument to the jury is that, at least in part, the
closing argument was designed to play on the jury's emotions rather than assist
them in a considered determination as to guilt or innocence.
[13][14] We conclude that there was no
reversible prosecutorial error in the prosecutor's opening, presentation of the
evidence discussed immediately above, or closing argument. We shall set forth our reasoning in that
regard, but before doing so we acknowledge
that the defendants have expressed appropriate concerns; concerns not lightly to be dismissed. It is proper to inquire how the truth‑finding
effort was promoted by the prosecutor's reference in his opening to McKie's
"long time girlfriend" and mother of his child, and to Carrion's
wife, young sons, and brothers and sisters, none of whom played a role in the
events being inquired into. In addition,
although it was marginally appropriate to establish the identity of the victims
by testimony concerning the ownership of the clothing they wore, see Commonwealth v. Benoit, 389 Mass. 411,
425, 451 N.E.2d 101 (1983), it is difficult to recognize the relevancy of Daryl
Dottin's testimony concerning her motherhood of McKie's child and McKie's being
"upset" on the afternoon before he [422 Mass. 831] was
killed. We urge caution in admitting
evidence in criminal cases that appears to be more related to evoking sympathy
then to proving the elements of the alleged crime or crimes.
We conclude that there was no reversible
error in connection with the prosecutor's opening, presentation of the
testimony of Dottin, Todd McKie, and Milagros Carrion, and the prosecutor's
argument to the jury, because we are satisfied that the defendants were not
prejudiced by any such prosecutorial misconduct. We begin with the fact, as we see it, that,
standing alone, the sympathetic value or emotional appeal of the prosecutor's
opening and final argument and the described testimony could not have added
much to the traumatic fact that two young men had died as a result of an
unprovoked attack. In addition, the
judge explicitly instructed the jury that they should not base their decision
on any sympathy they might have had for the victims, thus mitigating any
potential inappropriate impact of the prosecutor's statements and the
challenged testimony. Commonwealth v. Benoit, supra. Indeed, the acquittal of Parks and the
conviction of Settles on only one of three indictments tends to show that the
jury were able to, and did, comply with the aforementioned instruction from the
judge.
[15] Lastly, Lee's counsel, Mr. Cunha,
said in his closing argument that "the medical examiner said ... those
scraping injuries ... are consistent with somebody scraping themselves along
the street.... Was [Carrion] crawling at
that point?" In response, the
prosecutor retorted in his closing argument, "Mr. Cunha would have you
believe [Carrion] was slinking along the ground, on his rear end. Shame on Mr. Cunha." With respect to the prosecutor's statement
focused on Mr. Cunha, the judge instructed the jury as follows: "Mr. Cunha was performing in the highest
tradition when he pointed out [an] alternative theory for particular
evidence. It was improper argument for
[the prosecutor] to imply otherwise and you're to strike that remark from your
mind and disregard it." "On numerous
occasions, the impact of an improper final argument has been mitigated by the
judge's forceful instructions to the jury that the argument was inappropriate
and should be disregarded." Commonwealth v. Kozec, 399 Mass. 514,
518, 505 N.E.2d 519 (1987).
We are satisfied that, with respect to
issue number 6 herein, there has been no prejudicial error.
[16]
[422 Mass. 832] 7)
Admissibility of videotape of defendants' booking at the police station. We conclude that the judge properly admitted
the tape recording, the video and audio aspects of which were relevant to the
defendants' state of intoxication or sobriety when the alleged assaults of
McKie and Carrion took place. The
defendants argue that the making of the tape was unlawful by virtue of G.L. c.
272, § 99 (1994 ed.), and that suppression was mandated by G.L. c. 272, § 99
P. We disagree.
General Laws c. 272, § 99 A, entitled
"Preamble," states that "the increasing activities of organized
crime constitute a grave danger to the public welfare and safety," that
"[n]ormal investigative procedures are not effective in the investigation
of illegal acts committed by organized crime" and that "[t]herefore,
law enforcement officials must be permitted to use modern methods of electronic
surveillance, under strict judicial supervision, when investigating these
organized criminal activities."
Section 99's preamble then states:
"The general court further finds that the uncontrolled development
and unrestricted use of modern electronic surveillance devices pose grave dangers
to the privacy of all citizens of the commonwealth. Therefore, the secret use of such devices by
law enforcement officials must be conducted under strict judicial supervision
and should be limited to the investigation of organized crime."
General Laws c. 272, § 99 B 4, provides
in pertinent part that "[t]he term 'interception' means to secretly hear,
secretly record, or aid another to secretly hear or secretly record the
contents of any wire or oral communication through the use of any intercepting
device by any person other than a person given prior authority by all parties
to such communication...." Section
99 C 1, provides: "Except as otherwise
specifically provided in this section any person who‑‑willfully
commits an interception, attempts to commit an interception, or procures any
other person to commit an interception or to attempt to commit an interception
of any wire or oral communication shall be fined not more than ten thousand
dollars, or imprisoned in the state prison for not more than five years, or
imprisoned in a jail or house of correction for not more than two and one half
years, or both so fined and given one such imprisonment." Although G.L. c. 272, §§ 99 B 4 and 99 C 1,
can be read literally as making unlawful the audiotaping of booking procedures
without the knowledge of the [422
Mass. 833] persons being booked, and
as subjecting the responsible police officers to severe penalties therefor, in
the absence of more specific statutory language to that effect and in light of
the preamble, we are unwilling to attribute that intention to the
Legislature. It is apparent from the
preamble that the legislative focus was on the protection of privacy rights and
the deterrence of interference therewith by law enforcement officers'
surreptitious eavesdropping as an investigative tool. It is in that context that the Legislature
limited police use of electronic surveillance (investigative) devices to the
investigation of organized crime "under strict judicial supervision."
The Legislature does not appear to have
had in mind the recording of purely administrative bookings steps following an
individual's arrest. In this regard, the
videotape did not capture or reveal the defendants' thoughts or knowledge about
some fact or subject, but at best served only to exhibit the defendants'
bearing and manner of speaking which were relevant on the question of their
intoxication or sobriety at the time of the assaults. See
Commonwealth v. Mahoney, 400 Mass. 524, 528, 510 N.E.2d 759 (1987).
(8)
Did testimony of party to nonprosecution agreement deprive defendants of fair
trial? The defendants challenge the
judge's decision, over their objection, to admit in evidence the testimony of
Kevin Rollins, who had entered into a nonprosecution agreement with the
Commonwealth. The agreement provided:
"You have stated to [an] Assistant
District Attorney that you were present at, and have direct knowledge of, the
robbery and stabbing of Jesse McKie and the stabbing of Rigoberto Carrion, both
events occurring in Cambridge on January 25, 1990. You have represented to [the assistant
district attorney] that you did not participate in the robbery and/or stabbing
of Mr. McKie or in the stabbing of Mr. Carrion.
"In return for your complete and truthful
cooperation, including testimony at any and all grand jury, pre‑trial
and/or trial proceedings, the Commonwealth of Massachusetts, District Attorney
for Middlesex County, hereby represents that no criminal proceedings will be
initiated or prosecuted against you for your activities on [422 Mass. 834] the
night of January 24‑25, 1990. This
promise is expressly conditioned on your representation that you did not
participate in either stabbing mentioned above and on your complete and
truthful cooperation with the Commonwealth."
[17][18] Although it is generally
accepted that "testimony pursuant to a plea agreement, founded on a
promise of truthful cooperation" is admissible, Commonwealth v. Ciampa, 406 Mass. 257, 261, 547 N.E.2d 314 (1989),
the defendants contend that this particular agreement compelled Rollins to
falsify his testimony thereby depriving them of their right to a fair
trial. The defendants maintain that the
"cooperative aspect [of the nonprosecution agreement] overrode the
'truthful' aspect [of the agreement]."
In particular, they assert that Rollins, in order to fulfil his obligation to
"truthfully cooperate" with the Commonwealth, was required to comport
with a particular factual scenario that the Commonwealth had envisioned, thus
creating too great an inducement to lie.
We disagree. The agreement does not say that the
Commonwealth's performance is contingent on Rollins' testimony conforming to
the Commonwealth's version of the events.
Rather, the Commonwealth's commitment is conditioned on Rollins'
noninvolvement in the two killings and his "truthful cooperation"
with the Commonwealth. Such an agreement
does not present the same "inducement to lie" as would an agreement which
conditioned the nonprosecution agreement on a conviction. Compare
Commonwealth v. Colon, 408 Mass. 419, 443, 558 N.E.2d 974 (1990) (no error
in admitting nonprosecution witness's testimony where her nonprosecution
agreement permitted dismissal of charges against her if she testified "in accordance with the aforementioned
statements" contained within the agreement [emphasis in original] )
with Commonwealth v. Ciampa, supra at
261‑262 n. 5, 547 N.E.2d 314 ("[t]estimony pursuant to a plea
agreement made contingent on obtaining ... a conviction, as a result of the
witness's testimony, would presumably present too great an inducement to lie,
[and] would not meet the test of fundamental fairness ...").
[19] Moreover, Rollins did not fully
harmonize his testimony with the Commonwealth's version of events. Although the agreement stated that Rollins
had observed the killing of Carrion, he did not testify to that at the
trial. Furthermore, the [422 Mass. 835] inherent infirmities of a witness's testifying pursuant to a
nonprosecution agreement were fully explored at the trial. "The established safeguards of the Anglo‑American
legal system leave the veracity of a witness to be tested by cross‑examination,
and the credibility of his testimony to be determined by a properly instructed
jury." Commonwealth v. Colon, supra at 443, 558
N.E.2d 974, quoting Hoffa v. United
States, 385 U.S. 293, 311, 87 S.Ct. 408, 418, 17 L.Ed.2d 374 (1966), reh'g
denied 386 U.S. 940, 87 S.Ct. 970, 17 L.Ed.2d 880 (1967). During vigorous cross‑examination,
defense counsel confronted Rollins concerning his status as a witness
testifying pursuant to a nonprosecution agreement. In addition, in closing argument defense
counsel attacked Rollins' veracity by characterizing him as an accomplice who
perjured himself to preserve his entitlements under the agreement. Finally, in her general instructions, the
judge instructed the jury concerning witness motive and bias generally and then
instructed them specifically with respect to the various factors that would be appropriately
considered in assessing Rollins' testimony including the possibility of his
having been an accomplice, his possible interest in the outcome of the case,
and his motive to testify pursuant to the nonprosecution agreement. She instructed the jury that any testimony
pursuant to such an agreement "must be considered and weighed with greater
caution and care than the testimony of an ordinary witness." Admission of Rollins' testimony pursuant to
the nonprosecution agreement was proper.
(9)
Admissibility of expert testimony interpreting blood splatter. The defendants Lee and Gordon argue that the
Commonwealth's failure to comply with discovery obligations as well as its
destruction of potentially exculpatory evidence culminated in a violation of
their right to a fair trial.
The Commonwealth and the defendants had
entered into a pretrial discovery agreement which required "each party
[to] notify the other of proposed expert testimony to be offered at trial or
evidentiary hearings." During the
direct testimony of the Commonwealth's forensic serologist, Karolyn M.
Leclaire, the witness testified that certain blood splatters found on the
defendants' clothing were consistent with the defendant Gordon's role as the
stabber and the defendant Lee's role as being located nearby the victims during
the stabbing and as kicking one of the victims after the stabbing. She based her opinion on her observations of
the various configurations of blood [422
Mass. 836] splatters, including the
form, shape and "directionality" of the bloodstains on the defendants'
clothing. The defendants objected to
Leclaire's testimony that the blood splatter evidence indicated that they had
had principal roles in the stabbings, claiming that they had not received notice,
as required by the discovery agreement, that the Commonwealth's witness would
testify in that regard. The only
evidence the Commonwealth supplied to the defendants before trial concerning
Leclaire's expected testimony consisted of three reports detailing blood‑type
testing which had been conducted on various articles of clothing. The judge determined that those reports did
not comply with the discovery order because they did not give any indication of
a "directionality" analysis.
The judge denied the defendants' motions for mistrial and dismissal, however,
and instead granted the defendants time to locate an expert witness to counter
the Commonwealth's expert's testimony.
This was in accord with the Appeals Court's decision in Commonwealth v. McGann, 20 Mass.App.Ct.
59, 66, 477 N.E.2d 1075 (1985) ( "When undisclosed evidence surfaces at
trial, unless it is virtually destructive of the defendant's case ... the
preferred course of action is ... a provision of additional time for
investigative efforts, rather than declaration of a mistrial.
Commonwealth v. Baldwin, 385 Mass. 165, 176‑177 [431 N.E.2d
194 (1982) ]"). The defendants,
however, argue that the judge's remedy was ineffective because the Commonwealth
had destroyed the evidence on which its expert relied thereby precluding a
defense expert from forming an opinion.
[20] It is true, as the defendants say,
that the Commonwealth had destroyed the evidence on which its expert
relied. It is important to understand,
however, that this was not the result of malicious intent or negligence on the
Commonwealth's part. The evidence was
consumed in the process of testing the blood stains. Although the Commonwealth drew sketches of
the blood stains, it did not photograph the process. However, being aware of the possibility that
the evidence would be destroyed, the Commonwealth notified the defendants of
that fact and informed them they were welcome to have their expert witnesses
observe the testing procedure. The
defendants declined to do so. Although
we have indicated that, when the Commonwealth performs testing that would
exhaust the evidence, "the better practice would [involve] careful
documentation and photographing of the entire test,"[422 Mass. 837] Commonwealth v. Shipps, 399 Mass. 820,
836, 507 N.E.2d 671 (1987), and cases cited, the Commonwealth's failure to
photograph in this case has minimal significance.
[21] The critical question is whether the
defendants were unfairly prejudiced by the Commonwealth's failure to notify the
defendants in advance of trial that the Commonwealth would offer expert opinion
testimony that the blood splatter evidence was consistent with Gordon and Lee's
guilt as charged. We conclude that, if
the defendants had been told before trial of Leclaire's expected testimony, the
defendants' situation would have been no better than it turned out to be. Even if the Commonwealth had not violated the
discovery order, the defendants would have needed to consult with and prepare
an expert without the benefit of the destroyed blood samples; that is, with the same material the Commonwealth
obtained after Leclaire testified.
Defense counsel not only mounted an effective cross‑examination of
Leclaire, but challenged her opinion through the testimony of their own expert,
Stuart James. James testified that the
size and quantity of the blood stains were too little to suggest definitively
that they were consistent with a medium‑velocity blow; that the blood stains may not have resulted
from a blow at all; that Leclaire did
not follow proper procedure among blood splatter experts in that she did not
photograph her procedure; that the
amount of blood stain available to Leclaire would not have sufficed for an
accurate conclusion as to the "specific activity that was required to
produce [the] stains"; and that he
was unable to distinguish the directionality of the blood splatter because of
the minute size of the blood stains and because they were not preserved by
photographs. The judge's grant to the
defendants of time to locate an expert witness effectively counteracted any
prejudice possibly flowing from the Commonwealth's violation of the discovery
order. See Commonwealth v. Baldwin, 385 Mass. 165, 176‑177, 431 N.E.2d
194 (1982), quoting Commonwealth v.
Cundriff, 382 Mass. 137, 150, 415 N.E.2d 172 (1980), cert. denied, 451 U.S.
973, 101 S.Ct. 2054, 68 L.Ed.2d 353 (1981) ("unless the undisclosed
evidence is ... virtually destructive of the defendant's case ...
'additional time for investigative purposes' " is the appropriate remedy).
(10)
Admissibility of expert testimony that ortho‑tolidine tests were
"conclusive" for the presence of blood on the defendants.
[22] The defendants challenge the judge's
decision to permit Patricia Forti, a chemist with the Department of Public[422 Mass. 838] Safety crime laboratory,
to testify that ortho‑tolidine testing is "indicative and
conclusive" of the presence of blood.
They contend that, while it is generally accepted within the scientific
community that a positive ortho‑tolidine test is consistent with the
presence of hemoglobin, "there is a virtual uniform rejection of the
theory that such testing is specific for blood."
At the time of this trial, if a party
wished to introduce expert testimony concerning scientific theory or
principles, the trial judge was required to determine "whether the
community of scientists involved generally accepts the theory or process. Frye
v. United States, 293 F. 1013 (D.C.Cir.1923)." Commonwealth v. Curnin, 409
Mass. 218, 222, 565 N.E.2d 440 (1991).
See Commonwealth v. Fatalo,
346 Mass. 266, 269, 191 N.E.2d 479 (1963).
Although we have since modified the applicable standard by which trial
judges are to determine the admissibility of evidence based on scientific
theory or instruments in Commonwealth v.
Lanigan, 419 Mass. 15, 641 N.E.2d 1342 (1994), we need not address whether Lanigan applies retroactively to the
instant case because, as discussed,
infra, the expert testimony satisfied the "general acceptance in the
scientific community standard" which may be regarded as a somewhat more
stringent standard for admissibility than the standard enunciated in Lanigan, supra at 26, 641 N.E.2d 1342
("a proponent of scientific opinion evidence may demonstrate the
reliability or validity of the underlying scientific theory or process by some
other means, that is, without establishing general acceptance").
We conclude that, although Forti
testified that a positive ortho‑tolidine test result is "indicative
and conclusive" of the presence of blood, it is clear from reading her
testimony in its entirety that she did not intend, as the defendants assert,
her statement to connote that the test was specific for the presence of
blood. According to her testimony, Forti
performed the ortho‑tolidine test on each of the defendants' hands to
determine whether occult blood was present.
Occult blood is not visible to the naked eye but can be detected
chemically. The ortho‑tolidine
procedure tests for the presence of hemoglobin, which is the iron‑containing
protein pigment occurring in the red blood cells of vertebrates. Webster's Third New Int'l Dictionary 1055
(1993). Thus, the test is sensitive to
the presence of iron.
Forti explained the two‑step ortho‑tolidine
procedure. After[422 Mass. 839] rubbing a piece of filter paper on the
subject's skin, where the occult blood is believed to be present, ortho‑tolidine
is added to the paper. A peroxide, in
this case sodium perborate, is then added to the paper. If the paper changes color to a bright blue,
the ortho‑tolidine test has returned a positive result. A positive test result, Forti testified,
would "conclude the presence of blood, or indicative of blood." She further testified that she performed the
two‑step ortho‑tolidine test on Settles, Lee, and Parks and that
each defendant tested positive. A
positive result, she reiterated, was "indicative and conclusive of the
presence of blood."
Forti testified that, upon obtaining a
positive test result, and if there were any remains of the sample, she would
then perform a species test, called a precipitin test, to determine whether the
blood is human or animal. If, however,
the test was performed on occult blood as it was here, the sample is exhausted
in the ortho‑tolidine test procedure, and a species test cannot be
performed. Thus, in the instant case
Forti was unable to perform the precipitin test on the defendants' samples.
Forti further testified that the ortho‑tolidine
test is a presumptive rather than a specific test. A specific test, she agreed, tests for only
one particular substance and therefore, a positive result would mean that that
particular substance is present. On the
other hand, a positive test result from the ortho‑tolidine procedure,
which is a presumptive test, means
that the result is consistent with the presence of blood but it is also
consistent with the presence of other substances. On cross‑examination, Forti
specifically agreed to the statement that "a positive test alone should
not be interpreted as positive evidence of blood ... [b]ecause there could be
other materials which can give a positive test...."
Because the ortho‑tolidine test is
merely presumptive, it has the capability of producing false positives. False positives occur, she testified, because
iron, the element that triggers a positive oxidation reaction in the ortho‑tolidine
test, is present in hemoglobin, or blood cells, but is also present in numerous
other substances. Thus, a positive
result could indicate a substance which contains iron but is not human blood. Forti named various items which contain iron
that could trigger a false positive in the ortho‑tolidine test: rust, copper or nickel salts, some bleaches,
iodine, raw meat, raw potatoes, raw tomatoes, and raw onions.
[422
Mass. 840] Forti testified that to
control false positives, certain measures are taken to secure the accuracy of
the test. She testified that the two‑step
ortho‑tolidine testing procedure she followed is generally accepted in
the scientific community, and she explained how it helps to eliminate a false
positive result. After the first step in
the procedure, in which Forti adds the ortho‑tolidine to the filter
paper, if the paper changes color once the chemical is added, the substance on
the paper is determined to be a chemical oxidant, such as rust, and not blood,
and is therefore excluded as a positive result.
If the paper does not change color the sodium perborate is added. If the paper then does change color, Forti
testified, "[I]t's indicative of blood." The two‑step procedure, she said, does
not eliminate "plant peroxidases" and does not specify whether the
blood is human or animal.
When considering Forti's testimony in its
entirety, it is clear that she did not state that the ortho‑tolidine test
was specific for blood. To the contrary,
she explicitly testified that the test was merely presumptive, and conceded
that there were other substances, such as raw animal meat or raw vegetables,
that could have triggered the positive result.
She further conceded that "a positive test alone should not be interpreted
as positive evidence of blood ... [b]ecause there could be other materials
which can give a positive test."
As the defendants themselves concede, it is generally accepted within
the scientific community that a positive ortho‑tolidine test result is
consistent with, but not specific for, the presence of blood. There was no error in admitting Forti's
testimony.
[23] In addition, Forti testified that,
although the ortho‑tolidine testing procedure was merely presumptive, and
not specific, for the presence of blood, in her opinion, the positive test
results indicated that each of the defendants had come into contact either
directly with blood or with an object which had blood on it. Forti based her opinion on comparisons of
color changes which she had observed, over the past eight years, while
performing the ortho‑tolidine test on various samples. She asserted that when blood was present on
the filter paper she observed the paper change to a brilliant blue color. On the other hand, if any other type of iron‑containing
substance was present on the filter paper, the ortho‑tolidine test would
turn the paper to different shades of blue.
Based on these observations, she concluded that if the color did not [422 Mass. 841] turn to a brilliant blue the possibility existed for a false
positive, or in other words, a substance other than blood.
[24] Forti's opinion that the positive
test results, as it pertained to the defendants, indicated the presence of
blood rather than some other iron‑containing substance was properly
admitted. It was not subject to Frye 's general acceptance in the
scientific community standard. Frye is inapplicable where the witness
testimony is based on personal observations rather than dependent on scientific
theories or principles. We first began
to define the limits of Frye in Commonwealth v. Devlin, 365 Mass. 149,
310 N.E.2d 353 (1974). In Devlin, the victim's body was
unidentifiable because it was badly decomposed and mutilated. Id.
at 150, 310 N.E.2d 353. In order to
identify the victim, the Commonwealth offered the testimony of a doctor who
testified that in his opinion, X‑rays taken of the torso of a living man
(ante mortem) at Boston City
Hospital two years prior to the discovery of the body matched the postmortem X‑rays
of the torso of the mutilated body. Id. at 152, 310 N.E.2d 353. Based on his own observations over many
years, he testified that every individual has a unique bone structure, and that
because the two sets of X‑rays (antemortem and postmortem X‑rays),
were identical the murder victim was the man whose torso had been X‑rayed. We upheld the trial judge's admission of the
testimony. Although the defendant in Devlin asserted that the expert's
opinion was based on a scientific theory that had not received general
acceptance in the scientific community, in contravention of Frye, we determined that the
Frye standard was inapplicable. Id. at 154‑155, 310 N.E.2d
353. We noted that "the use and
reading of X‑rays and the comparison of X‑rays is a generally
recognized medical practice." Id. at 155, 310 N.E.2d 353. We reasoned then, that the expert's opinion
was not based on a scientific theory or scientific instrument, but, rather
"the product of years of experience viewing tens of thousands of X‑rays." Id. We have not wavered from this limitation on Frye:
that opinions based on personal observations of scientific procedures,
which are themselves generally accepted in the scientific community, are not
governed by Frye. See
Commonwealth v. Ghee, 414 Mass. 313, 320, 607 N.E.2d 1005 (1993) (expert
permitted to testify concerning his opinion that die lines in plastic bags
found in defendant's home matched the plastic bag containing the victim's body
because based on observations of scientific procedures which were generally
accepted within scientific community); Commonwealth[422 Mass. 842] v. Cifizzari, 397 Mass. 560, 570‑571,
492 N.E.2d 357 (1986) (expert permitted to testify concerning bite mark
analysis because opinion based on observations of scientific instruments, X‑rays,
models and photographs, which were generally accepted in scientific
community). See also Commonwealth v. Beausoleil, 397 Mass. 206, 215 n. 11, 490 N.E.2d
788 (1986) (stating this court has not "utilized the Frye test to preclude the admissibility of novel scientific
techniques or information developed by a particular expert witness utilizing
accepted scientific instruments or theories").
Similarly, in the instant case, Forti's
opinion testimony was the product of eight years' experience observing the
color changes during the oxidation process in the ortho‑tolidine
test. The ortho‑tolidine procedure
is generally accepted in the scientific community to test for the presence of
blood. She consistently maintained that
a positive ortho‑tolidine test is generally accepted in the scientific
community to be considered consistent with the presence of blood, among other
iron‑containing substances. Forti
never testified that a positive ortho‑tolidine test result was specific
for the presence of blood. Therefore, in
the instant case, Forti's opinion testimony that she could decipher, due to her
own observations, false positive test results by the color of the oxidation
reaction was not subject to Frye. Her testimony was properly admitted.
(11)
Did witness Taylor's identification of Settles before the jury deprive Settles
of a fair trial? Substantially in
advance of trial Settles filed the following "Motion to Prevent Unfair
Identification Procedures":
"NOW COMES the defendant and
respectfully moves this Honorable Court to order the Commonwealth to refrain
from conducting any show up, photographic identification procedure or other
unfair identification procedure with any eyewitness who has not yet been asked
to identify the defendant.
"The defendant requests that this
Court order the Commonwealth to conduct a non‑suggestive line‑up
procedure with each eyewitness to the defendant's alleged involvement (if the
Commonwealth intends to rely on that witness at trial). The defendant hereby agrees to participate in
any such court ordered line‑up.
[422
Mass. 843] "In support of his
motion the defendant says that it is error of constitutional magnitude to
permit a prosecutor to conduct unfair and suggestive identification
procedures. See Commonwealth v. Marini, 375 Mass. 510, 516 [378 N.E.2d 51]
(1978)."
Shortly before the trial, Settles brought
this motion to the attention of the judge.
On that occasion, the judge told the prosecutor that Settles feared that someone who had not
previously identified him would do so for the first time on the witness
stand. The prosecutor responded that he
did not know of any such witness. The
judge denied Settles' request for a line‑up for any such witness.
During the trial, a Commonwealth's
witness, Earle Taylor, identified Settles, who was seated at a table in the
courtroom with the other defendants, as one of the individuals he had seen at
the scene of the assaults. Taylor had
previously been shown a photographic array that included Settles' photograph,
but failed to identify him. On direct
examination, Taylor identified Gordon, Rollins, Cook, and Lee. When asked by the prosecutor whether, in
January of 1990, he knew Ricardo Parks or Ronald Settles, Taylor answered that
he did not know them. Taylor then
testified as follows:
Q.: "As you were walking up School Street
towards the entranceway to Newtowne Court early that Thursday morning, whether
or not you saw anybody that you recognized?"
A.: "Yes."
Q.: "Who did you see?"
A.: "I seen Ventry, I seen Kevin Rollins,
and I seen Lazell‑‑I seen everybody."
Q.: "When you say everybody, who‑‑"
A.: "The group that they was with."
Q.: "‑‑strike that. Do you see any of the people that you saw
that morning as you walked up School Street towards Newtowne Court in the
courtroom today?"
A.: "Yeah, they all's there."
[422
Mass. 844] Q.: "When you say all, could you just, for
the record, indicate slowly which individuals you saw when you first started
walking up School Street?"
A.: "Every individual I see in front of
me."
Q.: "Well, for the record, did you see this
individual?"
A.: "Yeah."
THE
PROSECUTOR: "Would the record
reflect I'm pointing to the Defendant, Ventry Gordon?"
COUNSEL
FOR THE DEFENDANT LEE: "I
object."
THE
JUDGE: "You may have it."
Q.: "Did you see the second individual who
you've referred to as Sean Lee?"
A.: "Yeah."
COUNSEL
FOR THE DEFENDANT SETTLES: "I
object, Judge."
THE
JUDGE: "The objection's
overruled."
Q.: "Did you see the third individual named
Ricardo Parks?"
A.: "Yeah."
Q.: "Did you know Ricardo Parks by name at
that time?"
A.: "No."
Q.: "How did you see know him [sic ]?"
A.: "Well, I seen him around. I seen‑‑I didn't know him like
everybody else, you know what I'm saying?"
Q.: "Did you know Ricardo Parks by face‑‑"
A.: "I seen him a couple of times‑‑"
Q.: "‑‑by sight?"
A.: "Well, sight."
[422
Mass. 845] Q.: "Well, where had you seen him?"
A.: "I seen him around like you see people
around."
Q.: "With respect to the fourth individual‑‑"
Counsel for Settles interrupted and
requested a side bar conference, which the judge granted. The conference was as follows:
COUNSEL FOR SETTLES: "This gentleman was shown photo arrays,
according to discovery we've been given on one occasion, close in time to the
incident and he failed to pick out my client's photograph. I made a motion that asked this Court to
protect me from any in‑court identification procedure which would be
unnecessarily suggestive. Now, if [the
prosecutor] knew that this witness was going to make an in‑court
identification of my client based on a confrontation where there are five black
males‑‑young black males at counsel table‑‑so it's
absolutely crystal clear to anyone that's on the witness stand who is on trial
and who isn't. I find that to be
outrageous and I want to know what's going on before he makes an in‑court
identification. I specifically asked if
there was going to be an
identification procedure that I would participate in the line up, that I wanted
to be in the line up, and that no eyewitness should be confronted with my
client for the first time in the courtroom and asked to make an
identification."
COUNSEL FOR LEE: "Judge, my objection was somewhat
different because I did not file such a motion.
On other hand, the objection was based upon the fact that one by one
[the prosecutor] was pointing at the Defendants and leading this witness and
asking if they were present. I'd
suggest, Judge, that even without a motion for identification procedure, that
is unnecessarily suggestive. This
individual could have said he had identified my client, he could have‑‑"
THE JUDGE: "He said all of them, first."
COUNSEL FOR LEE: "But Judge, I'm sitting there, [422 Mass. 846] too, and the courtroom is full.
Who knows who he's talking about."
THE JUDGE: "He said all of them."
COUNSEL FOR LEE: "He did not point, your Honor. He did not‑‑he said 'all of
them,' but it was unclear and that's why [the prosecutor]‑‑"
THE JUDGE: "It was‑‑what was
unclear?"
COUNSEL FOR LEE: "Who 'them' was, and that's why [the
prosecutor] resorted to pointing at them one by one."
THE PROSECUTOR: "If a similar‑‑"
THE JUDGE: "We have‑‑all right. I'm happy to hear from the Commonwealth, then
I'll tell you my ruling."
THE PROSECUTOR: "To the extent‑‑with respect
to [counsel for Settles]‑‑"
THE JUDGE: "He can't hear you."
THE PROSECUTOR: "With respect to [counsel for Settles]
objection and concerns, I did not know that this witness was going to say that
'I saw all of them there.' It has been
my understanding that pursuant to discovery, this witness was going‑‑is
going to testify consistent with his police report and his grand jury
testimony. To the extent that I just
asked a question that has been objected to because of the unfairness of the
presentation, I will not‑‑I will withdraw the question and I will
move on to the fifth individual who's been identified as Lazell Cook."
COUNSEL FOR SETTLES: "But he's now said 'all of them‑‑'
"
THE JUDGE: "Well, but he didn't know he was going
to say that. Now you can have him ask
him."
[422
Mass. 847] COUNSEL FOR SETTLES: "Well, that's why I filed my motion that
there'd be line up procedures before confrontation‑‑"
THE JUDGE: "All right. Your objection's overruled. Now, do you want to‑‑and you may
continue to inquire."
[25] Settles' motion, quoted above,
sought a lineup procedure with respect to any witness that the prosecutor
intended to call for the purpose of identifying Settles. Nothing in the record suggests that the
prosecutor expected Taylor to identify Settles.
No judicial error, prosecutorial misconduct, or unfairness
occurred. Indeed, the following
testimony of Taylor, elicited on cross‑examination by Settles's attorney
strongly suggests that the identification testimony was relatively, or
completely, harmless and came as a surprise to the prosecutor:
Q.: "Sir, on February‑‑you
pointed out Ronald Settles on Wednesday.
You said, all of them, remember that, all of them were there? Do you remember that?"
A.: "Yes, I remember‑‑"
Q.: "Ronald Settles was sitting right where
he's sitting today, correct?"
A.: "Um."
Q.: "On Wednesday?"
A.: "Wait a second, I said all of them were
there?"
Q.: "Yes."
A.: "Who's Ronald Settles?"
Q.: "Prior to January 25, 1990, you had
never even heard the name Ronald Settles, correct?"
A.: "Correct."
Q.: "This is Ronald Settles, right
here."
A.: "Okay."
[422
Mass. 848] Q.: "Ever seen him around the neighborhood
in Mattapan prior to January 25, 1990?"
A.: "No, I don't recall seeing him."
Q.: "In fact, prior to January 25, 1990,
you'd never seen him in your life, correct?"
A.: "Correct."
Q.: "On Wednesday you sat in that very seat
and said all of them, remember that?
You don't remember that?"
A.:
"I don't know, all of them most likely was there. He's the one I didn't identify because I
didn't know him, just like you said."
"...
Q.: "Do you recall, on Wednesday of this
week, sitting where you're sitting now, and saying in answer to the question,
who do you see at counsel table that was there? All of them."
A.: "I probably said all of them."
Q.: "You recall it now? Did you see Ronald Settles there?"
A.: "I don't remember. I might have not identified him. I don't remember."
Q.: "Well‑‑"
A.:
"Listen to what I'm saying.
I didn't identify him, I don't remember seeing him there, like, can you
understand, can you understand?"
"...
Q.:
"Why did you think all of them on Wednesday?"
"...
A.:
"I might have spoke premature, just like I said your client, I did
not pick him out in the photograph because I did not know your client, so if I
was not lying then, why would I lie now about your client?"
"...
[422
Mass. 849] A.: "I did not pick him out, I did not
implicate him in doing anything, therefore, I'm sure if he did, I don't know
him, or if he did anything."
[26] (12) Denial of defendant's requests
to attend view. Settles argues that
the judge violated his constitutional rights guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights when she denied his request to attend the
jury's view of Newtowne Court and the Cambridge police station. We reject that argument.
We have held repeatedly that a defendant
does not have a right to be present during a jury view. Commonwealth v. Owens, 414
Mass. 595, 604, 609 N.E.2d 1208 (1993). Commonwealth v. Curry, 368 Mass. 195,
198, 330 N.E.2d 819 (1975). Commonwealth v. Snyder, 282 Mass. 401,
414, 185 N.E. 376 (1933), aff'd, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674
(1934).
Commonwealth v. Dascalakis, 246 Mass. 12, 31, 140 N.E. 470
(1923). More specifically we have stated
that "[i]t is a violation of neither the Fourteenth Amendment to the
United States Constitution, Snyder v.
Massachusetts, 291 U.S. 97 [54 S.Ct. 330, 78 L.Ed. 674] (1934), affirming Commonwealth v. Snyder, 282 Mass. 401,
[185 N.E. 376] (1933), nor art. 12 of the Declaration of Rights of the
Massachusetts Constitution, Berlandi v.
Commonwealth, 314 Mass. 424, 449‑453 [50 N.E.2d 210] (1943), to
conduct a view in the absence of the defendant." Commonwealth v. Curry, supra. We continue to adhere to that view.
[27] (13) Sufficiency of the evidence to
warrant Lee's conviction of murder of Rigoberto Carrion. The theory of the Commonwealth's murder case
against Lee was felony‑murder;
that he was a joint venturer in the armed robbery of Jesse McKie and
that Carrion was killed during the commission of that felony. There was evidence that Lee intentionally
encouraged or assisted Gordon in the armed robbery and that he did so while
sharing with Gordon the mental state required for that crime. Thus, the evidence was sufficient to warrant
Lee's conviction of the armed robbery. Commonwealth v. Ortiz, 408 Mass. 463, 466‑467,
560 N.E.2d 698 (1990). Lee does not
contend otherwise. The critical question
as to Lee's murder conviction is whether there was evidence that Carrion's
death occurred in the course of that armed robbery. Id. at 467, 560 N.E.2d
698. Accord Commonwealth[422 Mass. 850]
v. Nichypor, 419 Mass. 209, 215, 643 N.E.2d 452 (1994). If it did, Lee was guilty of murder in the
first degree. G.L. c. 265, § 1 (1994
ed.).
[28][29]
"In reviewing the denial of a motion for a [required finding] in a
criminal
case, we determine whether the evidence offered by the Commonwealth,
together with reasonable inferences therefrom, when viewed in its light most
favorable to the Commonwealth, was sufficient to persuade a rational jury
beyond a reasonable doubt of the existence of every element of the crime
charged." Commonwealth v. Campbell, 378 Mass. 680,
686, 393 N.E.2d 820 (1979). See Commonwealth v. Latimore, 378 Mass.
671, 676‑677, 393 N.E.2d 370 (1979).
"It was not necessary for the Commonwealth to show that the
homicide[ ] occurred while the [armed robbery] was still in progress, as long
as the homicide[ ] [was] connected with and incident to the [armed robbery] and
as long as the [armed robbery] and the homicide[ ] took place at substantially
the same time and place." Commonwealth v. Ortiz, supra at 466, 560
N.E.2d 698. Accord Commonwealth v. Nichypor, 419 Mass. 209, 215, 643 N.E.2d 452
(1994). Lee asserts that the killing of
Carrion was completely gratuitous and unrelated to the robbery while the
Commonwealth says that it was connected with and incident to the robbery. We are satisfied that the evidence warranted
that the killing occurred in connection with and incident to the armed robbery
and at substantially the same time and place.
[30][31][32]
A homicide may be deemed to be connected with and incident to a felony if
"the homicides occurred as part of the defendant's effort to escape
responsibility for the underlying felony." Commonwealth v. Ortiz, supra. The Commonwealth argued to the jury that
Carrion was killed because he was a witness to the killing of McKie. Although there was no testimony that Carrion
was killed for that specific reason, it was a reasonable inference to have been
drawn from the evidence introduced. Tracy
Williams testified that he, McKie, and Rigoberto Carrion had arrived together
at Newtowne Court. Williams testified
that he observed the defendant Gordon stab McKie as other members of the group
viciously beat McKie. On hearing McKie's
cries for help Williams left the Newtowne Court to find the police. Williams further testified that during the
beating and stabbing of McKie, Carrion was standing in the entranceway about
ten to fifteen feet from McKie and facing the direction of the beating. Earle Taylor, [422 Mass. 851] another
eyewitness, further corroborated Williams' testimony. Taylor testified that after the group had
beaten and stabbed McKie, Carrion attempted to leave the area, but the group
converged on him beating and fatally stabbing him. The killing of the only remaining eyewitness
associated with the first murder victim could reasonably be inferred as an
attempt to escape responsibility for the armed robbery. We note that, although there may have been
other inferences possible, under the sufficiency of the evidence standard, we
need only consider whether the inference was "reasonable and
possible." Commonwealth v. Cohen, 412 Mass. 375,
380, 589 N.E.2d 289 (1992). See Commonwealth v. Latimore, supra at 676,
393 N.E.2d 370 (inferences sufficient if not "too remote according to the
usual course of events"). In
addition, the Commonwealth introduced evidence which supported the jury's
finding that the killing occurred at substantially the same time and place of
the armed robbery as evidenced by testimony indicating the fatal stabbing of
Carrion took place moments after the group had finished their vicious attack on
McKie. Furthermore, because Carrion's
murder occurred during the course of the robbery, the Commonwealth satisfied
its burden that the felony was independent of Carrion's homicide.
Commonwealth v. Ortiz, supra at 466‑467, 560 N.E.2d 698. See
Commonwealth v. Quigley, 391 Mass. 461, 465‑466, 462 N.E.2d 92
(1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2356, 86 L.Ed.2d 258 (1985).
[33][34]
In addition to the requirement that the deaths occurred in the course of the
robbery, the Commonwealth was required to establish that the deaths were the
natural and probable consequences of the felony. Commonwealth v. Ortiz, supra
at 467, 560 N.E.2d 698; Commonwealth v. Matchett, 386 Mass. 492,
504‑505, 436 N.E.2d 400 (1982); Commonwealth v. Devlin, 335 Mass. 555,
566‑567, 141 N.E.2d 269 (1957). It
is evident that in the instant case the killings of McKie and Carrion were part
of a continual criminal transaction. If
it were not for the underlying felony, it is probable that McKie would not have
been beaten and stabbed. Similarly, if it were not for the killing of
McKie, and if Carrion had not witnessed the killing, it is probable that
Carrion would not have been attacked, beaten, and fatally stabbed. However, because the underlying felony of
armed robbery did occur, and because McKie was killed, and because Carrion did
witness the entire event, the jury were warranted in concluding that the death
of Carrion was a natural and probable consequence of the armed robbery.
[422 Mass. 852] We conclude that there was sufficient evidence introduced at
trial to support each element the Commonwealth was required to prove beyond a
reasonable doubt in order to secure a conviction of first degree murder based
on a theory of joint venture felony‑murder.
[35] (14) The
judge's refusal to instruct jury concerning possibility of Lee's having
received stolen property. Lee
requested the judge to instruct the jury that if they were to find that it was
as likely that Lee only received McKie's stolen jacket from another person as
that he participated in the theft, they must find him not guilty of
robbery. The judge rightly declined to
give that instruction. The requested
instruction would not have been incorrect, but it would have added nothing of
value to the instructions the judge gave with respect to the elements of the
crime with which Lee was charged, armed robbery, and the Commonwealth's burden
to prove each of those elements beyond a reasonable doubt.
[36] (15) Did
the judge err as to Settles by giving a consciousness of guilt instruction
without limiting it to Gordon and Lee?
Settles argues that the judge's jury instruction on consciousness of
guilt was erroneous because there was no evidence of his consciousness of
guilt. We agree that there was no
evidence of Settles' consciousness of guilt but we do not agree that the
instruction was erroneous. In connection
with her instruction on that subject, the judge did not mention Settles or any
of the defendants by name. She simply
told the jury that, if they were to find that a defendant had fled, made false
statements, or concealed or destroyed evidence, they could, but were not
required to, consider such evidence as consciousness of guilt on that
defendant's part. Settles objected to
that instruction stating that it allowed the jury to consider that there was
evidence of Settles' consciousness of guilt.
Counsel did not directly request the judge to tell the jury that there
was no evidence of Settles' consciousness of guilt or that her consciousness of
guilt instruction was limited to the cases against Gordon and Lee.
Although
it would have been preferable for the judge to have explicitly limited her
consciousness of guilt instruction to Gordon and Lee, we are not persuaded that
the general instruction could reasonably be construed by the jury as suggesting
that there was any evidence of Settles' consciousness of his own guilt (as
distinguished from his consciousness of
[422 Mass. 853] the guilt of
Gordon and Cook‑‑passengers in Settles' vehicle following the
incident). We conclude that there was no
error.
(16) G.L. c. 278, § 33E, relief. After thorough review of the law and the
evidence, we are persuaded that we should not exercise our extraordinary power
under G.L. c. 278, § 33E, to reverse or reduce the murder convictions of Gordon
and Lee.
Judgments affirmed.
(FN1.) Three indictments against Sean Lee, two
against Ventry Gordon, and one against Ronald Settles. In the interest of judicial economy, we shall
consider Settles' appeal along with the appeals properly before this court.