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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
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. James, 424
Supreme Judicial Court of Massachusetts,
Argued
Decided
Alan Jay Black,
Bernard Grossberg,
Paul B. Linn, Assistant District Attorney, &
Kelly Ann Downes, Assistant District Attorney, for the Commonwealth.
Before WILKINS, C.J., and O'CONNOR, GREANEY, FRIED
and MARSHALL, JJ.
MARSHALL, Justice.
On
On direct
appeal James alleges error in (1) the denial of a motion for a change of venue
and a motion for a continuance; (2) the
denial of a motion to suppress evidence seized from his residence and the
failure of the trial judge to give a limiting instruction concerning the
purpose for which that evidence could be considered; (3) the omission of a cautionary instruction
regarding the testimony of one witness;
(4) the denial of a motion for required findings of not guilty, and (5)
the judge's instructions on reasonable doubt, voluntary intoxication, and
extreme atrocity or cruelty. (FN4) Garcia argues that an extrajudicial statement
of James was admitted in violation of
Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476
(1968). We affirm the convictions. We decline to order a new trial or to
exercise our extraordinary power under G.L. c. 278, § 33E.
1. Facts.
We summarize the pertinent facts as they could have been found by the
jury. On
After
catching Linda, one of the men struck her forcefully across the back of her
head with a tree limb. Three of them
then intrusively searched her for money but, finding nothing of value, released
her. They then crossed the street to
join the others who had caught Harbour.
Linda testified that she heard Harbour calling for help, witnessed
several of the young men kick her as she fell to the ground and then continue to
chase her as she attempted to run away again.
(FN7)
The two
defendants were part of the group who initially chased Harbour as she attempted
to flee. At trial, another participant,
a juvenile, described the events that followed and the roles played by the two
defendants. The group caught the victim
and, as she shouted for help and struggled, carried her to a remote location in
Franklin Field. There, the victim tried
to fight and pleaded for the group to let her go. They ignored her entreaties, stripped off her
clothes and six of the eight attackers then took turns raping her. The eyewitness testified that James was the
first to rape Harbour. Garcia did not
rape her. While she was being raped,
others repeatedly kicked her, and Garcia struck her in the face with a beer
bottle which shattered on impact. James
was the first to attack her with his knife.
He and at least one other slashed Harbour with a knife, stabbing her
arms, stomach, back, and legs. The
stabbing wounds inflicted were consistent with cuts inflicted by two different
kinds of knives and with cuts from the neck of a broken bottle. One or more of the group also beat her with
the tree limb which had been used to assault Linda. The eyewitness also said that Garcia struck
her a second time in the face with another beer bottle.
The
attacks on Harbour lasted for about one‑half hour; she begged for mercy throughout. The group then gathered the victim's clothes
which they took away with them. As they
were moving away, they discussed whether Harbour was still alive. James turned back to Harbour and with a
running jump landed on her, causing her to scream. He then returned to the group and they all
left Franklin Field. They threw [424 Mass. 774] Harbour's clothes into a dumpster and agreed with each other that
they would not say anything about the attack on Harbour. (FN8)
The nude, lifeless body of the victim was discovered the next morning.
At the
scene of the crime, police found the broken glass fragments of a forty‑ounce
"Private Stock" beer bottle under and around the victim's head. Near her body they also found the broken
parts of a large tree branch, pieces of a condom, and articles of the victim's
clothing. A footwear pattern was
discovered on one of the pieces of discovered clothing.
The
medical examiner determined that Harbour had died from 132 knife wounds
covering her entire body, at least eighteen blunt force injuries, and extensive
blood loss. The pattern of blood loss
suggested that Harbour had sustained the wounds while she was struggling, and
that she had died slowly from loss of blood.
He further determined that there were variations in the knife wounds
that were consistent with wounds caused by both single‑edged knives, such
as the knife later found in James's residence, and double‑edged knives,
such as the knife found later in Garcia's residence.
During the
subsequent investigation, one of the attackers gave a statement to the police
identifying the assailants, including both defendants. (FN9)
On November 18, 1990, the police obtained warrants to search the
defendants' homes for "007" or similar knives, dark clothing, face
masks, and sneakers. (FN10) At James's residence, the police recovered an
"007" knife and five pairs of sneakers. The police seized a knife and two pairs of
sneakers from Garcia's residence.
On
November 19, 1990, James waived his Miranda rights and made a statement to the police
that was recorded. He told the police
that on the night of the killing he had been at home drinking beer with
friends. He identified Garcia as one of
those present. He said that at
approximately 8 P.M. he and [424
Mass. 775] the others left his
house; they walked with Garcia to his
nearby residence, left him there and then all went their separate ways. James said that Garcia mentioned in passing
that he might go to his girl friend's house, but James did not know whether he
had done so. James told the police that
he himself had gone to his girl friend's house, where he stayed for the
remainder of that night. He recalled
that the next day, at approximately 1 P.M. or 2 P.M., he had received a
telephone call from "one of [his] boys," whom he thought was Garcia. James denied participating in the rape and
murder of Harbour.
This young
woman testified at trial. She
contradicted the statement James had given to the police and denied that he had
been with her on the night of Halloween, 1990.
James did not testify. Garcia
presented an alibi defense. His brother
and his brother's girl friend each testified that from 8:30 to 10:30 P.M. on
the night of the attack on Harbour, they had visited Garcia's home where he
lived with his mother. They said that
Garcia was at home during that entire time, studying for a Spanish test. (FN11)
[1][2] 2.
Change of venue or continuance.
There was extensive media coverage of the crimes. In addition, two days before the start of the
trial, there was a march and candlelight vigil to oppose crimes of violence within
the Black community, during the course of which the victim and the
circumstances of her death were remembered.
(FN12) Those events also were
widely covered by the media. In light of
this, the defendants sought a change of venue or, in the alternative, a
continuance of the trial. The judge
denied both motions, rulings that the defendants allege deprived them of their
right to a fair and impartial jury. A
trial judge has substantial discretion in deciding whether to grant a motion
for change of venue or continuance based on pretrial publicity. See
Commonwealth v. Colon‑Cruz, 408 Mass. 533, 551, 562 N.E.2d 797
(1990);
Commonwealth v. Bianco, 388 Mass. 358, 367, 446 N.E.2d 1041, S.C., 390 Mass. 254, 454 N.E.2d 901
(1983). We conclude that the judge did
not abuse his discretion in denying the motions.
[3] We
have said that a trial judge should exercise the discretionto [424 Mass. 776] change venue or to continue a trial "with great caution and
only after a solid foundation of fact has been first established."
Commonwealth v. Colon‑Cruz, supra at 551, 562 N.E.2d 797,
quoting Commonwealth v. Smith, 357
Mass. 168, 173, 258 N.E.2d 13 (1970).
There is no dispute here concerning the extent of the pretrial
publicity. But the existence of pretrial
publicity alone, even if extensive, does not constitute such a foundation. See
Commonwealth v. Colon‑Cruz, supra, and cases cited;
Delle Chiaie v. Commonwealth, 367 Mass. 527, 532, 327 N.E.2d 696
(1975), citing Sheppard v. Maxwell,
384 U.S. 333, 354‑355, 86 S.Ct. 1507, 1517‑1518, 16 L.Ed.2d 600
(1966). Rather, a defendant must show
that in the totality of the circumstances, "such publicity deprived him of
his right to a fair trial." Delle Chiaie v. Commonwealth, supra. See
Commonwealth v. Angiulo, 415 Mass. 502, 515, 615 N.E.2d 155 (1993).
The defendants
failed to make that showing. On appeal,
as they did below, the defendants emphasize in particular the march and
candlelight vigil and the media coverage of those events two days before the
start of the trial. They argue that this
increased the potential for prejudice in the minds of the jurors, but they do
not point to any evidence to that effect.
The judge recognized the possible impact on the jurors of the pretrial
publicity, (FN13) and he took careful steps to ensure that the media coverage
did not interfere with the fairness of the trial. He conducted an individual voir dire of each
prospective juror, asking each whether he or she had been exposed to any
pretrial publicity about the case, and if so, whether they could nevertheless
be impartial. (FN14) See
Commonwealth v. Colon‑Cruz, supra at 552, 562 N.E.2d 797;
Commonwealth v. Bianco, supra at 368, 446 N.E.2d 1041. [424
Mass. 777] On several occasions
potential jurors were excused at least in part because the media coverage of
the crimes had left them unable to be impartial. In other cases the judge accepted, as he was
entitled to, the statement of jurors of their "disinterest and freedom
from emotional or intellectual commitment." Id. On defense motions, the judge also ordered
that the jury be sequestered.
[4] A
defendant's right to a fair and impartial jury does not require that jury
members have no prior knowledge of the crime.
We have reviewed the record, and there is no indication that the
defendants were tried before a biased jury. Commonwealth v. McLaughlin, 352 Mass.
218, 225, 224 N.E.2d 444, cert. denied, 389 U.S. 916, 88 S.Ct. 250, 19 L.Ed.2d
268 (1967). The verdicts demonstrate
that the jury were able to sift through the evidence and reach their verdicts
with respect to each defendant, finding them not guilty with respect to certain
charges and guilty with respect to others.
[5] 3.
Motions to suppress. The
defendants next claim that evidence found during searches of their respective
residences should have been suppressed because the search warrants were
constitutionally defective. The judge
found, and we agree, that an affidavit attached to the warrants contained
sufficient facts to establish probable cause to support the warrants and to
believe that the listed items reasonably could be expected to be located at
James's and Garcia's residences. He also
concluded, correctly, that the underlying information was not stale.
[6][7] An
affidavit to establish probable cause must contain "enough information for
an issuing magistrate to determine that the items sought are both related to
the criminal activity under investigation, and that they reasonably may be
expected to be located in the place to be searched at the time the search
warrant issues." Commonwealth v. Cinelli, 389 Mass. 197,
213, 449 N.E.2d 1207, cert. denied, 464 U.S. 860, 104 S.Ct. 186, 78 L.Ed.2d 165
(1983). Affidavits must be "tested
and interpreted by magistrates and courts in a commonsense and realistic fashion.... Recital of some of the underlying circumstances
in the affidavit is essential if the magistrate is to perform his detached
function and not serve merely as a rubber stamp for the police."
Commonwealth v. Atchue, 393 Mass. 343, 346, 471 N.E.2d 91 (1984),
quoting United States v. Ventresca,
380 U.S. 102, 108‑109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). [424
Mass. 778] We have also said that
courts should not invalidate a warrant by interpreting the affidavit "in a
hypertechnical, rather than a commonsense manner." Id.
Here, it
was reasonably likely that the items specified in the affidavit and seized
during the searches would be found at the defendants' residences. Based on specific facts obtained from
eyewitnesses to the attacks and described in detail in an affidavit of one of
the investigating police officers, the police were authorized to search for
"007" or similar knives, sneakers, dark clothing, and face
masks. As the judge found, all of these
items are durable, of continuing utility to the defendants, and it was
reasonable to expect that they would be kept at home, particularly as
they are not inherently incriminating to possess. See
Commonwealth v. Cinelli, supra at 213‑214 & n. 16, 449 N.E.2d
1207;
Commonwealth v. Cefalo, 381 Mass. 319, 329‑330, 409 N.E.2d 719
(1980).
With
respect to the weapons, the affidavit recited that the members of the group
that attacked Harbour were known to carry "007" knives on a regular
and continuing basis. There was no
reason for the defendants to dispose of these items when they were unaware that
they had been identified to the police. Commonwealth v. Cinelli, supra at 213,
449 N.E.2d 1207. Moreover, knives,
unlike firearms, can be cleaned of any incriminating evidence. (FN15)
[8][9] Nor
are we persuaded that the warrants were defective because the information in
the supporting affidavit was stale.
While the principle that facts supporting probable cause must be
"closely related to the time of the issue of the warrant [so] as to
justify a finding of probable cause at that time." Sgro v. United States, 287
U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed. 260 (1932), [424 Mass. 779] the
timeliness must be "determined by the circumstances of each case." Id.
at 210‑211, 53 S.Ct. at 140. Commonwealth v. Atchue, supra at 349, 471
N.E.2d 91. In this case the passage of
eighteen days before the issuance of the search warrant was not
unreasonable. See 2 W.R. LaFave, Search
and Seizure § 3.7(a), at 348 (3d ed. 1996).
The judge was correct to deny the motions to suppress.
[10] 4.
Admission in evidence of knives seized at defendants' residences. The defendants challenge the admission of
knives seized at their residences, asserting that the relevance of the evidence
was outweighed by the unfair prejudice arising from the admission of the
knives. Because, they argue, there was
no evidence that the defendants used the knives on the night of the killing,
and because the evidence was seized at a time too remote from the killing, the
jury would draw adverse conclusions about their character and their propensity
to commit crimes based on nothing more than their possession of the
knives. It was in the judge's discretion
to admit the knives that were in the defendants' possession and that could have
been used by them in the murder of Harbour. Commonwealth v. Toro, 395 Mass. 354, 356,
480 N.E.2d 19 (1985), and cases cited.
We conclude that the judge acted entirely properly when he did so. (FN16)
"[I]t
is commonly competent to show the possession by a defendant of an instrument
capable of being used in the commission of the crime, without direct proof that
that particular instrument was in fact the one used." Commonwealth v. O'Toole,
326 Mass. 35, 39, 92 N.E.2d 618 (1950).
The knives found in the defendants' residences were relevant to show
that the defendants had the means of committing the offense. (FN17) Commonwealth v. Storey, 378 Mass. 312, 322, 391 N.E.2d 898
(1979), cert. denied, [424 Mass. 780] 446 U.S. 955, 100 S.Ct. 2924, 64
L.Ed.2d 813 (1980); Commonwealth v. Bartolini, 299 Mass. 503,
512, 13 N.E.2d 382, cert. denied, 304 U.S. 565, 58 S.Ct. 950, 82 L.Ed. 1531
(1938) (possession, and familiarity with use of knife to dismember victim's
body "alone would fall far short of proving guilt, but in connection with
the other evidence in this case, it had some legitimate probative
force"). Whether or not the knives
in question were in fact used in the killing was an issue "the jury surely
understood." Storey, supra. (FN18)
[11] The
defendants next assert that there was a substantial likelihood of a miscarriage
of justice because the judge did not instruct the jury to limit their
consideration of the knives to the issue whether the defendants had the means
to commit the offense. (FN19) There was no error. Where evidence is admissible to show the
possession by the defendant of an instrument capable of being used to commit
the crime charged‑‑particularly where, as here, the probative value
of the evidence outweighed any prejudicial effect‑‑we have held
that a limiting instruction is not required.
See Commonwealth v.Hamilton, supra
at 322, 582 N.E.2d 929; Commonwealth v. Storey, supra at 322, 391
N.E.2d 898.
[12] [424 Mass. 781] 5. The Bruton issue. Relying on Bruton v. United States, 391 U.S. 123,
135‑136, 88 S.Ct. 1620, 1627‑1628, 20 L.Ed.2d 476 (1968), Garcia
asserts that his constitutional right to confront an adverse witness was
violated by the admission of the extrajudicial statement of his nontestifying
codefendant James. Bruton v. United States, supra at 135‑136,
88 S.Ct. at 1627‑1628, held that a defendant was deprived of his Federal
constitutional rights of confrontation (FN20) when his codefendant's
"powerfully incriminating extrajudicial statements" inculpating him
in the crime were admitted and the codefendant did not testify and expose
himself to cross‑examination, despite the prophylactic instructions to
the jury to consider the confession only against the codefendant.
Garcia
argues that James's statement, taken in the context of the testimony of the
eyewitness to the attack and of the failure of James's alibi defense, was
powerfully incriminating of him, and that there is a "substantial
possibility" that in determining his guilt the jury relied on James's
statement, notwithstanding the limiting instructions from the judge. Garcia recognizes that James's statement does
not directly inculpate him in the attack on Harbour. His claim rests rather on a series of
inferences which he says the jury could have drawn from the statement; the prejudicial inculpatory connection
between James's statement and himself, he says, "may be supplied by the
content of the statement taken in connection with other evidence in the
case." Commonwealth v. LeBlanc, 364 Mass. 1, 8,
299 N.E.2d 719 (1973).
James's
statement refers frequently to Garcia by name;
James referred to Garcia as "one of my boys" and as a friend
of his, and James placed the two together several hours before the murder, as
well as having a conversation on the day following the murder. The repeated references to him, Garcia says,
strengthened the Commonwealth's case against him, lent credibility to the
Commonwealth's case that the defendants corroborated to create a cover‑up
after the murder,[424 Mass. 782]
and "pulled [him] into" James's demonstrably false alibi. We consider his claims in light of our
rulings and those of the Supreme Court subsequent to Bruton.
In Richardson v. Marsh, 481 U.S. 200, 208,
107 S.Ct. 1702, 1707‑1708, 95 L.Ed.2d 176 (1987), the Supreme Court
substantially restricted the scope of its
Bruton rule, limiting its application to cases where the codefendant's
statement "expressly implicate[s]" the defendant, leaving no doubt
that it would prove to be "powerfully incriminating." Id.,
quoting Bruton, supra at 124 n. 1,
135, 88 S.Ct. at 1621 n. 1, 1627‑1628.
The Bruton rule is a
"narrow exception" to the "almost invariable assumption of law
that jurors follow their instructions," and there is no Bruton error where the statement
becomes incriminating "only when linked with evidence introduced later at
trial." Richardson, supra at 206, 208, 107 S.Ct.
at 1707, 1707. Our considerations of
the Bruton rule mirror that
standard. Where a nontestifying
codefendant's statement inferentially inculpates another defendant, we have
recognized that it is not constitutionally required to consider the evidentiary
context of the codefendant's statement so long as there is an adequate limiting
instruction. Commonwealth v. Keevan, 400 Mass. 557,
570, 511 N.E.2d 534 (1987) ("where the challenged statement does not
directly inculpate the defendant, other evidence may be relevant to determine
if the risk of contextual implication is pressing enough to invalidate the
effect of limiting instructions; but ...
absent any direct inculpation, an appropriate instruction is sufficient to
obviate Bruton concerns").
[13][14]
James's exculpatory statement to the police does not identify Garcia in any way
as associated with the crimes charged.
In fact his references to Garcia are entirely consistent with the alibi
defense presented by Garcia at trial.
(FN21) We recognize, of course,
that James did make repeated references to Garcia in his statement. But a statement that does nothing more than
raise an association between the defendants is not sufficient to give rise to a Bruton challenge. See
Commonwealth v. Corradino, 368 Mass. 411, 419, 332 N.E.2d 907 (1975). There may be some circumstances where a
statement merely associating one defendant with another is so incriminating
that it may violate the Bruton
principle, even if it does not directly inculpate him. United States v. DiGregorio,
605 F.2d 1184, 1190 (1st Cir.), cert. denied, 444 U.S. 937, 100 S.Ct. 287, 62
L.Ed.2d 197, and cert. denied [424
Mass. 783] sub nom. Yanis v. United States, 444 U.S. 983,
100 S.Ct. 489, 62 L.Ed.2d 411, and cert. denied sub nom. Delvecchio v. United States, 444 U.S. 944, 100 S.Ct. 302, 62
L.Ed.2d 312 (1979) (fact that codefendant's extrajudicial admission tended to
corroborate government's case against defendant was insufficient to invoke Bruton ). See,
e.g., Commonwealth v. Bongarzone, 390
Mass. 326, 345, 455 N.E.2d 1183 (1983) (Bruton
rule violated with admission of statement about two professional drug dealers
who trafficked in major supplies of marihuana and threatened bodily harm to
others, where it was clear that two dealers referred to defendants). In each case, we must determine on the basis
of our own reading of the record whether the statement is sufficiently
prejudicial to require reversal because the average jury would have found the
case against the affected defendant significantly less persuasive without it.
Commonwealth v. Corradino, supra at 419, 332 N.E.2d 907, quoting Schneble v. Florida, 405 U.S. 427, 432,
92 S.Ct. 1056, 1059‑1060, 31 L.Ed.2d 340 (1972). See
United States v. Limberopoulos, 26 F.3d 245, 253 (1st Cir.1994) (statement
"cannot be supposed to have implanted in the jurors'
minds the kinds of powerfully incriminating impressions against which Bruton protects").
We have
held that there is a risk of contextual incrimination in cases only where the
circumstances of the case and the nature of the codefendant's statement so
obviously implicate the defendant in the crime itself as virtually to
constitute direct incrimination. See Commonwealth v. Johnson, 412 Mass. 318,
323, 588 N.E.2d 684 (1992); Commonwealth v. Cifizzari, 397 Mass. 560,
573, 492 N.E.2d 357 (1986); Commonwealth v. LeBlanc, supra at 8, 299
N.E.2d 719. Garcia's claims of
prejudice are far more attenuated than the claims in any of those cases. The essence of his argument is that only the
testimony of one eyewitness explicitly placed him at the scene and as one of
the most active participants in the crime.
Because the James statement "corroborated" the eyewitness
account in some respects, he says, it tended to lend crucial credibility to the
eyewitness account, severely tilting the scales against Garcia's alibi
defense. We do not agree. There were numerous discrepancies between James's
statement and the testimony of the eyewitness, and we are not persuaded that
there was any powerful corroboration by James's statement of the eyewitness
account of Garcia's participation in the crimes. See
Richardson, supra at 208‑211, 107 S.Ct. at 1707‑1709. Were we to adopt Garcia's argument, any
extrajudicial statement of a nontestifying codefendant that refers to the
defendant[424 Mass. 784]
by name would, if admitted as to the codefendant, violate the Bruton principle, even though the
statement directly exculpates the defendant.
(FN22) Because there was no
inculpation of Garcia, any possible harm to Garcia could be, and was here,
curtailed by prophylactic instructions. Commonwealth v. Pontes, 402 Mass. 311,
315, 522 N.E.2d 931 (1988).
The judge
was keenly aware of Garcia's Bruton
concerns, and he carefully and appropriately instructed the jury in the
strongest terms possible to consider the evidence of James's statement only
against James and not against Garcia. He
required that each juror, "Put that right down in your notebook,"
(FN23) and then confirmed that each juror had done so by requiring that they
affirmatively indicate compliance by nodding their heads. During the final instructions to the jury,
the judge again instructed the jury that James's statement "was admitted
into evidence exclusively against William [Cory] James. It is not in evidence against Mr. Carlos
Garcia." In light of the clear and
forceful instructions to the jury we are satisfied that there was no violation
of Garcia's right of confrontation.
[15] 6.
Required findings of not guilty.
The defendants argue that it was error for the judge to deny their
motions for required findings of not guilty.
Because, they claim, the Commonwealth's case rested on the testimony of
the juvenile witness whose testimony was inherently unreliable‑‑in
light of his agreement with the Commonwealth and his admission that he had lied
previously to the police‑‑they claim that no rational trier of fact
could find for the Commonwealth beyond a reasonable doubt. Their argument lacks merit.
[16][17]
The standard for evaluating a motion for a required finding of not guilty is
"whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt" (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671,
677, 393 N.E.2d 370 (1979), S.C., 423
Mass. 129, 667 N.E.2d 818 (1996), [424
Mass. 785] quoting Jackson v. Virginia, 443 U.S. 307, 318‑319,
99 S.Ct. 2781, 2788‑2789, 61 L.Ed.2d 560 (1979). The defendants do not argue that the
juvenile's testimony, if believed, was insufficient to support the convictions
beyond a reasonable doubt. Their claim
that his testimony was inherently unreliable is nothing more than an issue
of credibility, an issue that is solely within the province of the jury. When assessing the sufficiency of the
evidence, we resolve issues of credibility in favor of the Commonwealth; "[i]t does not matter that some of the
evidence could be characterized as equivocal or contradictory."
Commonwealth v. Ruci, 409 Mass. 94, 97, 564 N.E.2d 1000 (1991),
quoting Commonwealth v. Melchionno,
29 Mass.App.Ct. 939, 940, 558 N.E.2d 18 (1990).
The trial judge properly denied the motions for required findings of not
guilty.
[18] 7. Instructions
concerning the credibility of the juvenile witness. The defendants argue that it was error for
the trial judge not to instruct the jury to consider with special care the
eyewitness testimony of a juvenile who prior to trial had reached an agreement
with the Commonwealth. (FN24) They rely on Commonwealth v. Ciampa, 406 Mass. 257, 547 N.E.2d 314 (1989), in
which we held that a plea agreement that provided that the prosecution would
recommend a particular sentence in return for a witness's "truthful"
testimony, in conjunction with repeated references to the truthfulness
requirement, gave rise to an implication that the Commonwealth could verify or
had verified the truthfulness of his statements. Id. at 260‑261, 547
N.E.2d 314. See Commonwealth v. Evans, 415 Mass. 422, 427, 614 N.E.2d 653
(1993). Because of the danger that the
jury would infer that the Commonwealth knows or can discover whether the
witness is telling the truth, we said that "the judge must specifically
and forcefully tell the jury to study the witness's credibility with particular
care," and that the judge must focus "the jury's attention on the
particular care they must give in evaluating testimony given pursuant to a plea
agreement that is contingent on the witness's telling the truth."
Ciampa, supra at 266, 547 N.E.2d 314.
[19][20]
Here the judge generally instructed the jury that in [424 Mass. 786]
determining the credibility of the witnesses the jury could "consider the
witness'[s] motive for testifying and, of course, the interest or lack of
interest that a particular witness may have in the outcome of the
trial." He also instructed that
the jury could "consider any promises, any rewards or inducements that you
find are material on the issue."
He did not give Ciampa instructions. (FN25)
None of
the dangers to which we alluded in Ciampa
is present here. First, prior to his
testimony in this case the juvenile witness already had been tried as a
juvenile and found delinquent; he was no
longer subject to any promises, rewards, or inducements by the
Commonwealth. There was thus no
discussion before the jury, let alone emphasis, that his agreement with the
Commonwealth was contingent on the veracity of, or the Commonwealth's satisfaction
with, his testimony against James
and Garcia. The jury heard that he had
agreed to testify against the defendants in return for a trial as a juvenile
rather than as an adult. But that fact
was raised during cross‑examination by defense counsel in order to attack
the juvenile's credibility; the cross‑examination
sought to establish that the juvenile had changed his testimony repeatedly in [424 Mass. 787] response to inducements that he be tried as a juvenile, rather
than as an adult.
There was
no reason for the jury to believe that the Commonwealth had any influence over
the juvenile's testimony, nor could they have inferred that the Commonwealth
was vouching for his credibility. See Commonwealth v. Grenier, 415 Mass. 680,
686‑687, 615 N.E.2d 922 (1993); Commonwealth v. Evans, supra at 427, 614
N.E.2d 653. In these circumstances, no Ciampa instructions were required.
[21][22]
8.
Instructions on reasonable doubt.
The defendants argue that the judge's instructions on reasonable doubt
were constitutionally defective because they lowered the Commonwealth's burden
of proof below the standard required by the due process of law provisions of
the Fifth and Fourteen Amendments to the United States Constitution and art.
12. (FN26) We disagree.
The jury
charge on reasonable doubt was based in part on the language of Commonwealth v. Webster, 59 Mass. (5 Cush.) 295, 320 (1850), (FN27)
instructions that have been upheld by the United States Supreme Court, Victor v. Nebraska, 511 U.S. 1, 7‑17,
114 S.Ct. 1239, 1244‑1248, 127 L.Ed.2d 583 (1994), and since Victor, by us, if the use of the phrase
"moral certainty" "is linked with language that lends content to
the phrase." Commonwealth v. Pinckney, 419 Mass. 341,
345, 644 N.E.2d 973 (1995). See Commonwealth v. Latimore, 423 Mass.
129, 140, 667 N.E.2d 818 (1996); Commonwealth v. Shanahan, 422 Mass. 631,
632, 664 N.E.2d 424 (1996). As part of
the Webster charge, the judge here
instructed that the jurors should have an "abiding conviction" that
the defendants were guilty, and that "[i]t is not sufficient to establish
a probability, even a strong probability, that the fact charged is more likely
to be true than not true...." The
Supreme Court found this language sufficient "to alleviate any concerns
that the phrase moral uncertainty might be misunderstood in the abstract."
Victor, supra at 21, 114 S.Ct. at 1250. [424 Mass. 788] Moreover, in this case the moral
certainty standard was not linked in any respect with examples from everyday
life, which we have noted tend to lessen the degree of certainty required to an
unconstitutional level. See Commonwealth v. Bonds, 424 Mass. 698,
677 N.E.2d 1131 (1997); Commonwealth v. Ferreira, 373 Mass. 116,
129‑130, 364 N.E.2d 1264 (1977).
[23][24][25]
In this case the judge repeated almost verbatim the instructions that he had
given to the jury in Commonwealth v.
Mack, 423 Mass. 288, 291, 667 N.E.2d 867 (1996), (FN28) which we
commended. The defendants argue that
following his references to "mathematical certainty," the judge
should have made immediately clear that reasonable doubt is equivalent to
"near certitude." There is no
such requirement. We repeat that
"we do not require that judges use any particular words to instruct the
jury." Id. When reviewing a jury instruction
defining reasonable doubt, "the constitutional question is 'whether there
is a reasonable likelihood that the jury understood the instructions to allow
conviction on proof insufficient to meet the [In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ]
standard.' " Commonwealth v. Pinckney, supra at 342,
644 N.E.2d 973, quoting Holland v. United
States, 348 U.S. 121, 140, 75 S.Ct. 127, 137‑138, 99 L.Ed. 150
(1954). There is no suggestion that they
did not listen attentively to the judge's instructions (FN29) and did not
understand that a high degree of certainty was required before the jury could
find the defendants guilty of the crimes for which they were charged. We see no reason why we should deviate from
our ruling in Mack.
[26][27][28][29]
9.
Instructions on voluntary intoxication. The defendants claim that the judge's
instructions on voluntary intoxication were erroneous because they did not
adequately discuss the relationship between the specific criminal intent needed
to [424 Mass. 789] prove certain of the charges and
intoxication. (FN30) There was evidence that the defendants were
part of a group that had consumed several bottles of beer before they attacked
Harbour, and that James was one of those who had participated in a beer‑drinking
contest shortly before the killing.
There was no evidence that suggested that either defendant was or
appeared to have been impaired to any degree by alcohol. Voluntary intoxication instructions are not
required where the evidence does not suggest a condition of "debilitating
intoxication" that could support a reasonable doubt as to whether a
defendant was capable of forming the requisite criminal intent.
Commonwealth v. Morgan, 422 Mass. 373, 377, 663 N.E.2d 247 (1996).
Commonwealth v. Herbert, 421 Mass. 307, 316, 656 N.E.2d 899 (1995).
[30] Here,
the judge gave an intoxication instruction even though the fact that James and
Garcia had consumed some quantity of beer prior to the killing did not support
a reasonable inference that they were so intoxicated at the time of the killing
that they could not form the requisite criminal intent. (FN31)
Even if we were to conclude, which we do not, that voluntary
intoxication instructions were required in this case, "[a]ll that we have
ever required be said to juries about the effect of [alcohol] consumption on a
defendant's intent or knowledge would be satisfied by a simple instruction that
the jury may consider credible evidence of the effects of the defendant's
consumption of [alcohol] in deciding whether the Commonwealth[424 Mass. 790] had met its burden of
proving the defendant's state of mind beyond a reasonable doubt."
Commonwealth v. Sires, 413 Mass. 292, 300, 596 N.E.2d 1018
(1992). We are satisfied that the judge
fulfilled this requirement by instructing the jury several times that they
could take into account the effects of alcohol on the defendants' state of
mind. There was no error, and no
substantial miscarriage of justice.
[31][32]
10.
Instructions on extreme atrocity or cruelty. Relying on Commonwealth v. Hunter, 416 Mass. 831, 837, 626 N.E.2d
873 (1994), James argues that the judge's instructions on extreme atrocity or
cruelty were unconstitutionally vague because he failed to limit the jury's
discretion to consideration of the factors delineated in Commonwealth v. Cunneen, 389 Mass. 216, 227, 449 N.E.2d 658
(1983). (FN32) There, we wrote that in determining whether a
murder was committed with extreme atrocity or cruelty, a jury may consider seven
factors. (FN33) Subsequently, in Commonwealth v. Hunter, supra at 837, 626 N.E.2d 873, we stated,
in dictum, that evidence of at least one of the Cunneen factors must be found as a prerequisite to a finding of
murder with extreme atrocity of cruelty.
(FN34) We have since decided that
the Hunter rule is not to be applied
retroactively. Commonwealth v. Semedo, 422 Mass. 716,
726, 665 N.E.2d 638 (1996).
In this
case, the judge instructed the jury that they could consider the seven Cunneen factors for murder with extreme
atrocity or cruelty, but, as the judge instructed in Hunter, he added that "extreme atrocity or cruelty is not
limited to cases with such evidence."
Although this latter component of the charge was in violation of Hunter, the trial was completed [424 Mass. 791] two years prior to our ruling in Hunter, and is not subject to our ruling in that case.
Semedo, supra.
Moreover,
there was compelling evidence of the cruelty and brutality of the killing of
the victim, and we cannot imagine that in this case the jury did not find at
least one, if not all, of the Cunneen
factors. We conclude that there is no
substantial likelihood of a miscarriage of justice requiring reversal on the
basis of the instructions on extreme atrocity or cruelty. See
Commonwealth v. Kosilek, 423 Mass. 449, 456, 668 N.E.2d 808 (1996) (where
"jury found the defendant guilty on the theory of premeditated and
deliberate murder, as well as extreme atrocity or cruelty, it is highly
unlikely that the defendant was prejudiced by the instruction");
Commonwealth v. Semedo, supra at 726, 665 N.E.2d 638.
11. Relief under G.L. c. 278, § 33E. In accordance with our statutory
obligations, we have considered the record as a whole. We have determined that there is no reason to
exercise our authority under G.L. c. 278, § 33E, either to order a new trial or
to reduce the verdict to murder in the second degree or manslaughter. The defendants were convicted of vicious
crimes in an admirably conducted trial. The
convictions will stand.
Judgments affirmed.
(FN1.) Three against Carlos Garcia and two
against William Cory James.
(FN2.)
The jury found James not guilty of armed assault with intent to rob a second
victim. The judge sentenced James to
concurrent terms of life imprisonment on the convictions of murder in the first
degree and armed robbery, and an additional term of from twenty‑five to
thirty years on the aggravated rape conviction to be served after the
completion of his sentence for murder in the first degree.
(FN3.)
The jury found Garcia not guilty of armed assault with intent to rob a second
victim. The trial judge sentenced Garcia
to concurrent terms of life imprisonment on the convictions of murder in the
first degree and armed robbery, and an additional term of from fifteen to
twenty years for the aggravated rape conviction to be served after the
completion of his sentence for murder in the first degree.
(FN4.)
On May 10, 1996, Garcia filed a motion to adopt the arguments presented by
James; he filed no separate brief with
respect to any of those issues. We allow
his motion, and consider the issues on appeal as though raised originally by
both defendants.
(FN5.)
These young men were juveniles at the time and were tried separately from James
and Garcia. See, e.g., Commonwealth v. Floyd P., 415 Mass.
826, 615 N.E.2d 938 (1993); Commonwealth v. Barnes, 40 Mass.App.Ct.
666, 667 N.E.2d 269 (1996).
(FN6.)
We use the same fictitious name as the Appeals Court used in a related
case. See Commonwealth v. Barnes, supra at 667, 667 N.E.2d 269.
(FN7.)
Linda did not see Harbour again. A man
whom she did not know, who happened on the scene of the assault, offered to
take Linda to a hospital. When she
declined, he took her to her home. She
never saw the man again and the police never located him.
(FN8.)
Later that night, the Boston fire department responded to a report of a
dumpster fire in the Franklin Field housing project and extinguished the fire.
(FN9.)
He described the attack in detail, and said that members of the group routinely
carried "007" knives that they used against Harbour. The medical examiner testified that some of
Harbour's injuries were consistent with being attacked with such a knife.
(FN10.) Statements to the police by one of the
attackers and by Linda confirmed that the group all had been wearing dark
clothing, "Lone Ranger" type face masks, and sneakers.
(FN11.)
Garcia's mother could not testify because she had passed away before the trial.
(FN12.) According to information submitted to
the judge, the events were part of the fifth annual Black Youth Pride March.
(FN13.) The judge observed, however, that the
reason for the march was not to focus on the death of Harbour but on violence
within the Black community. He also
observed that both defendants intended to present alibi defenses (which they
did) and that the news reports were not necessarily prejudicial to them. Neither counsel objected to the judge's
characterization of the news reports.
(FN14.) Before he commenced his questioning of
the jurors, the judge invited counsel to inform him whether they believed that
there was any area that needed further examination with respect to any
particular juror. From time to time
during the individual voir dire by the judge, counsel did request that additional
questions be asked of a particular juror, requests that were granted in each
case by the judge. The defendants now
complain that the judge did not allow counsel to conduct individual
examinations of jurors, as had been the case in Commonwealth v. Colon‑Cruz, 408 Mass. 533, 552, 562 N.E.2d 797
(1990). At trial, counsel did not make
any such request. In any event, there is
no requirement that counsel examine jurors, particularly where the judge is so
responsive to questions suggested by trial counsel. See
Commonwealth v. Bianco, 388 Mass. 358, 368, 446 N.E.2d 1041, S.C., 390 Mass. 254, 454 N.E.2d 901
(1983);
Delle Chiaie v. Commonwealth, 367 Mass. 527, 532, 327 N.E.2d 696
(1975).
(FN15.) There is evidence that this
occurred. The knife found at the
residence of James had been tampered with so as to allow the removal of the
blade, and the knife appeared to have been recently and thoroughly
cleaned. The defendants rely here, as
they did below, on United States v.
Charest, 602 F.2d 1015, 1017 (1st Cir.1979), to support their claim that
probable cause to search their residences for knives was not established. In
Charest, unlike here, the court reasoned that a defendant would not keep at
home an incriminating handgun which could be readily identified as the murder
weapon through ballistics tests. Id.
Knives, unlike guns, are not subject to ballistics‑type
identifying data; it was reasonable to
conclude that they were likely to be found at the residence of the defendants
in view of the reliable information given to the police that members of the
group carried "007" knives on a continual basis.
(FN16.) The defendants also argue that it was
prejudicial error for the judge to admit in evidence a number of pairs of
sneakers seized from the defendants.
While the sneakers were marked for identification, they were not
admitted in evidence and the argument is meritless.
(FN17.) An eyewitness testified that James
stabbed Harbour repeatedly. The medical
evidence was that Harbour was stabbed with both a blunt‑edged weapon and
a sharp‑edged weapon; the knife
seized from James's residence had a blunt edge and the medical examiner
testified that the knife was consistent with causing the blunt‑edge
wounds, and that it could have been used in the murder. See
Commonwealth v. Hamilton, 411 Mass. 313, 322, 582 N.E.2d 929 (1991);
Commonwealth v. Gagnon, 408 Mass. 185, 199‑200, 557 N.E.2d 728
(1990);
Commonwealth v. Ascolillo, 405 Mass. 456, 461, 541 N.E.2d 570
(1989).
Garcia's
claim rests on an independent factual basis, but the argument with respect to the
knife seized at his house relates generally to James's argument and is
appropriately incorporated by reference, pursuant to Mass.R.A.P. 16(j), 365
Mass. 860 (1974). There was no direct
testimony that Garcia used a knife during the attack on Harbour. But there was circumstantial evidence that
his knife could have been one of the murder weapons. There were multiple sharp‑edged knife
wounds inflicted on Harbour, consistent with the knife seized at Garcia's
residence, and the medical examiner testified that the knife could have been
used to attack Harbour. In addition, the
Commonwealth proceeded against Garcia on a theory of joint venture. To establish his culpability, the Commonwealth
was not required to present direct evidence of who actually inflicted the fatal
wounds.
Commonwealth v. Williams, 422 Mass. 111, 121‑22, 661 N.E.2d
617 (1996). There was strong
circumstantial evidence that at least one assailant stabbed Harbour with a
knife such as Garcia's.
(FN18.)
James argues that there was no evidence of any blood on his knife and the knife
was not directly proved to be the murder weapon. However, there was evidence that the knife
had been thoroughly cleaned, from which the jury could have inferred that James
had sought to eradicate all traces of the victim's blood. Such evidence could evince consciousness of
guilt.
Commonwealth v. Jackson, 417 Mass. 830, 843, 633 N.E.2d 1031 (1994).
Commonwealth v. Toney, 385 Mass. 575, 584 n. 4, 433 N.E.2d 425
(1982).
(FN19.) Neither defendant requested a limiting
instruction as to the purpose for which the evidence was offered, and no such
instruction was given. The judge did
instruct the jury that the Commonwealth need not prove that the knives were the
same as those used in the murder.
(FN20.) Garcia also claims protection under
art. 12 of the Massachusetts Declaration of Rights which guarantees a defendant
the right "to meet the witnesses against him face to face." He does not argue that art. 12 provides greater
protection than does the Sixth Amendment to the United States Constitution, or
that our analysis should differ depending on the constitutional source of the
protection claimed.
(FN21.) James stated that he left Garcia at
Garcia's home at approximately 8 P.M., placing Garcia precisely where he claimed
to be during the killing.
(FN22.) In admitting James's statement in its
entirety the judge correctly noted that no Massachusetts case holds "that
putting people together at sometime, one, two, three hours before a crime is
committed constitutes a Bruton
problem."
(FN23.) At the commencement of the trial, the
judge had provided each juror with writing materials and had encouraged them to
take notes of important matters that arose during the course of the trial.
(FN24.) The juvenile was one of the eight who
participated in the attacks on Harbour and Linda. His agreement with the Commonwealth provided
generally that in exchange for a statement to the police and his testimony in
court against others involved in the attacks, he would remain in the juvenile
justice system.
(FN25.) Neither defendant objected to the
instructions on this issue, and the Commonwealth argues that they did not
preserve the issue for appellate review.
James did file a written request that contained "promise or
inducement" instructions more elaborate than those given by the judge, but
he did not request specifically that the judge instruct the jury that the
juvenile's testimony in particular be considered with special care. We have said that where a judge rejects a
request and gives an instruction that is inconsistent with a defendant's
request, the requirements of Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979), are
met.
Commonwealth v. Biancardi, 421 Mass. 251, 253‑254, 656 N.E.2d
1234 (1995). Here, the instructions
given were not, strictly speaking, inconsistent with those requested by
James. However, "the point was
brought to the judge's attention" and we conclude that the claim of
"error was preserved for appellate review." Id. at 254, 656 N.E.2d
1234. See Commonwealth v. Morgan, 422 Mass. 373, 377, 663 N.E.2d 247
(1996). Garcia did request such an
instruction, but based solely on the juvenile's role as an accomplice, not on
the juvenile's plea agreement with the Commonwealth. On appeal, Garcia has not raised an argument
based on the instructions concerning the juvenile's role as an accomplice, and
has thereby waived any such argument.
See Commonwealth v. Gray, 423
Mass. 293, 296‑297, 667 N.E.2d 1125 (1996); Mass.R.A.P. 16(a)(4), as amended, 367 Mass.
921 (1975). As to James, therefore, we
consider whether it was error for the judge not to have given special
instructions regarding the testimony of the juvenile. As to Garcia we consider whether the failure
to give the instruction resulted in a substantial miscarriage of justice.
(FN26.) Because neither defendant objected to
these instructions, we consider whether any error created a substantial
likelihood of a miscarriage of justice.
See Commonwealth v. Grant, 418
Mass. 76, 84‑85, 634 N.E.2d 565 (1994); Commonwealth v. Skinner,
408 Mass. 88, 92, 556 N.E.2d 1014 (1990).
(FN27.)
In Commonwealth v. Webster, 59
Mass. (5 Cush.) 295, 320 (1850),
reasonable doubt was described by Chief Justice Lemuel Shaw as "the state
of the case, which, after the entire comparison and consideration of all the
evidence, leaves the minds of jurors in that condition that they cannot say
they feel an abiding conviction, to a moral certainty, of the truth of the
charge."
(FN28.) In
Commonwealth v. Mack, 423 Mass. 288, 290 n. 5, 667 N.E.2d 867 (1996), in
addition to the Webster charge the
judge instructed the jury in part as follows:
"[T]he Commonwealth is not required to prove the case to an
absolute certainty. The Commonwealth is
not required to prove the case to a mathematical certainty. Mathematical certainty is that level of
certainty that you will have if you add two and two and arrive at four. The Commonwealth is not required to prove its
case to an absolute or mathematical certainty, but it must prove each and every
element of the charge beyond a reasonable doubt."
(FN29.) The judge alerted the jury to the fact
that the Webster instruction was
first articulated in the Nineteenth Century and invited them to be peculiarly
attentive to the language, informing them:
"The language is a little bit stilted, somewhat stilted, so be
attentive if you will."
(FN30.) Neither defendant objected to these
instructions, and the Commonwealth argues that the defendants failed to
preserve their appellate rights. Garcia
did request an additional instruction that intoxication could reduce the degree
of culpability from murder in the first degree to manslaughter. The judge denied the request, reasoning that
the evidence did not in any event warrant intoxication instructions. Appellate rights are properly preserved when
a specific instruction has been requested and rejected by the judge.
Commonwealth v. Biancardi, supra at 253‑254, 656 N.E.2d
1234. While Garcia's rejected request
was not directly on point, in light of the judge's view that no intoxication
instructions were needed in any case, a more tailored request may well have
been denied. As to Garcia, therefore, we
consider the issue on the merits. With
respect to James, we consider whether any error gave rise to a substantial
likelihood of a miscarriage of justice.
We conclude that the instructions withstand scrutiny under either
standard.
(FN31.) At trial the defendants relied
primarily on alibi defenses, and the issue of intoxication was never
raised. The theory on which a case is
tried below cannot be changed on appeal. Commonwealth v. Fano, 400 Mass. 296, 306,
508 N.E.2d 859 (1987), and cases cited.
(FN32.) Garcia was not convicted of murder
with extreme atrocity or cruelty.
Because James failed to raise any objection to this portion of the jury
charge, we review the instruction for an error which creates a substantial
likelihood of a miscarriage of justice. Commonwealth v. Grant, supra. Commonwealth v. Skinner, supra.
(FN33.) These factors include whether (1)
there is evidence of indifference to or taking pleasure in the victim's
suffering, (2) the consciousness and degree of suffering of the victim, (3) the
extent of physical injuries, (4) the number of blows, (5) the manner and force
with which they were delivered, (6) the instrument employed, and (7) the
disproportion between the means needed to cause death and those employed.
Commonwealth v. Cunneen, 389 Mass. 216, 227, 449 N.E.2d 658 (1983).
(FN34.) In
Commonwealth v. Hunter, 416 Mass. 831, 836‑837, 626 N.E.2d 873 (1994),
during the charge on murder with extreme atrocity or cruelty, the trial judge
first instructed the jury on the Cunneen
factors, but then stated that, "extreme atrocity or cruelty is not limited
to such cases of such evidence."