|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth
v. Otsuki, 411
Supreme Judicial Court of Massachusetts,
Argued
Decided
Robert A. George,
Thomas Mundy, Asst. Dist. Atty. (Marina Medvedev, Asst. Dist. Atty., with
him), for the Com.
Before [411
NOLAN, Justice.
On May 16,
1989, a Suffolk County jury convicted the defendant of the murder in the first
degree of Boston police Officer Roy Joseph Sergei, assault with intent to
murder Boston police Officer Jorge Torres, assault and battery upon Officer
Torres by means of a dangerous weapon, assault by means of a dangerous weapon
upon Boston police Officer Christopher Rogers, assault by means of a dangerous
weapon upon Boston police Officer William Kennedy and unlawfully possessing a
firearm. (FN1) The defendant appeals from the convictions,
claiming that the trial judge committed reversible error when he (1) denied the
defendant's motion to conduct an individual voir dire of the venire as to
prejudice or bias against Asians; (2)
denied the defendant's motions for a required finding of not guilty of murder
in the first degree; (3) denied the
defendant's motion to dismiss based upon the unavailability of bullet
fragments; (4) allowed certain in‑court
identifications of the defendant; and
(5) allowed the Commonwealth to introduce evidence of the defendant's prior
misconduct. The defendant further
requests that we exercise[411
We
summarize the tragic facts of this case as follows. On
The
manager observed the defendant moving a considerable amount of luggage into the
building, including one bag which seemed, from the sound it created when moved,
to contain metal objects. Over the next
one and one‑half days, the receptionist in the rental office saw the
defendant using the public telephone in the building with the assistance of a
black box which made "musical noises," (FN3) and the manager saw him
speaking with a parking meter attendant while standing on the sidewalk in front
of the apartment building.
On October
2, 1987 at approximately 1 A.M., a female occupant of a third‑floor
apartment in the building began to [411 Mass. 221] scream, seeking protection
from a male relative who then was beating her.
The tenant managed to push the man out of her apartment into the common
area. Once safely alone in her
apartment, the tenant screamed out her window for help. (FN4)
A man in the public alley at that time heard the tenant's pleas, asked
for her address, and reported her complaint to the police.
Officers
Kennedy and Sergei, then on duty in a rapid response car, received the report
and proceeded to the apartment building.
Officers Torres and Rogers heard the broadcast while patrolling the area
and decided to respond as back‑up support for Officers Kennedy and
Sergei. The four officers met at the
entrance to the apartment building and rang the tenant's doorbell. The tenant spoke to the officers through her
intercom and explained that the buzzer in her apartment which operated the
front door was broken and she was afraid to leave her apartment to let them in
because her relative was outside her door.
At this
point, Officers Torres and Rogers went to the rear of the building in search of
a back entrance. Officers Kennedy and
Sergei remained in the building foyer, ringing other doorbells and announcing
their presence over the intercom.
Meanwhile, another female tenant heard a loud crashing noise, which she
described as sounding like "something heavy hitting metal." (FN5)
The complaining tenant meanwhile observed through her window a man
jumping from the building to the [411 Mass. 222] fenced‑in courtyard
located in the public alley. She saw him
land, brace himself, run toward a fence in the courtyard, hurdle the fence, and
press himself up against the building.
Once in
the alley, Officers Torres and Rogers observed the defendant in the courtyard,
against the wall of the building.
Officer Torres shone his high intensity flashlight on the defendant and
asked him what he was doing. The
defendant responded, "I'm just hanging around." Officer Torres ordered the defendant to
climb over the fence, out of the courtyard and into the alley. Officer Torres then reported to Officers
Kennedy and Sergei by means of a walkie‑talkie that they had apprehended
a suspect in the alley. The defendant
climbed over the fence as directed and, when he landed on the ground, attempted
to walk away from the police officers.
Officer Torres grabbed the defendant and told him to face the fence and
put his hands up. Standing approximately
one foot from him, Officer Torres started to "pat down" the
defendant. Within seconds, the defendant
shoved Officer Torres, took a semiautomatic pistol from underneath his jacket
and began to fire. Officer Torres yelled
to Officer Rogers, "[H]e has a gun."
In reaction, Officer Rogers pushed the defendant and sought cover behind
an air conditioning unit in the alley.
From this vantage point, Officer Rogers witnessed the defendant chase
and shoot at Officer Torres, who then was attempting to flee the alley. Officer Rogers drew his revolver at this
time, but he could not fire at the defendant because of the dangerous proximity
of Officer Torres. Officer Torres
emerged from the alley screaming, "I've been shot."
Then,
Officers Kennedy and Sergei approached the alley entrance. Officer Kennedy placed himself against the
wall of the apartment building and drew his revolver. Officer Sergei continued walking toward the
mouth of the alley, and he there encountered the defendant. Officers Torres and Kennedy observed the
defendant at this point look to his right, hesitate for a few seconds, turn toward Officer Sergei, and
fire several times at Officer Sergei, hitting him in the chest, right flank,
and right buttock. Officer Sergei fell
to the ground and the defendant fled the scene, running down
MassachusettsAvenue. [411 Mass.
223] Officer Torres pulled out his
revolver and fired three or four shots at the defendant. He then went to assist Officer Sergei on the
sidewalk and there collapsed as a result of the bullet wounds he had sustained
to his left arm, left buttock, rectum, and chest. Officer Kennedy fired a single shot and
chased the defendant for a distance. The
defendant escaped.
Officers
Torres and Sergei each required extensive surgery and medical care. Officer Torres remained hospitalized for over
two weeks and eventually he recovered from his injuries. Officer Sergei's condition was complicated by
the spinal injury he sustained. There
was competent medical testimony that Officer Sergei's spinal cord damage resulted
in lower extremity weakness which, in turn, caused him to develop blood clots
in his legs and ultimately suffer a fatal pulmonary embolus.
The
subsequent investigation of the crimes revealed the following significant facts
about the defendant. From September,
1987, to the date of the crime, the defendant was wanted for a Federal parole
violation in the Southern District of Texas.
The defendant faced up to ten years in prison as a result of this
violation. In August, 1987, the
defendant purchased a Sig Sauer nine‑millimeter pistol, a box of
Winchester nine‑millimeter "Silver Tip" bullets, a Taurus .38
caliber special, a pair of "Packmeyer grips," a pack of glazier .38
caliber special ammunition, and a box of Fiuchi nine‑millimeter
ammunition under the name David Michael Taira at the Alamo Gun Shop in the
Bellaire section of Houston, Texas.
In the
aftermath of the shootings, investigators found several cartridges from a
semiautomatic pistol in and around the alley.
The investigators also discovered a fragment of a bullet and its jacket
just outside the alley entrance. A
ballistics expert tested these materials and concluded that they were fired
from the defendant's Sig Sauer semiautomatic nine‑millimeter pistol. Furthermore, this material was the same type
of ammunition later found, pursuant to a search warrant, in the defendant's
Commonwealth Avenue apartment. [411
Mass. 224] Tests conducted by the
ballistics expert would warrant the conclusion that the two bullets that were
removed from the body of Officer Sergei were fired from the defendant's Sig
Sauer pistol. The Commonwealth presented
evidence that the defendant's latent fingerprint appeared on a bullet contained
in one of the cartridges located at the scene of the crime.
Each of
the witnesses who observed the defendant at the time of the shooting described
his attire at that time: blue jeans,
sneakers, a striped shirt, and a dark jacket with white cuffs. Blood‑stained clothing fitting this
description was found later in the defendant's car. The striped shirt also had a hole on its
right side, consistent with the passage of a bullet. Lead residue, as would appear as a result of
the impact of one of the Boston police‑issued lead bullets, was detected
on this shirt.
On August
31, 1987, one month before the incident in Boston, an off‑duty San
Francisco police officer, Sergeant Greg Lynch, had observed the defendant
outside a movie theater. Sergeant Lynch
noticed that the defendant was carrying a gun with a blue steel handle in a
holster under his jacket. Lynch saw the
defendant drive away in a "newer" silver or light blue Plymouth
automobile with a Texas registration plate.
Later, he made a computer inquiry into the identity of the vehicle
owner. The police department recorded
this information and the name "David M. Taira," which they received
from the Department of Motor Vehicles of Texas and entered in their
computer. (FN6)
James
Burkhart, a witness for the Commonwealth, testified that he met the defendant
while the two were in Federal prison.
Burkhart stated that the defendant talked with him [411 Mass. 225]
sometime in late September, 1987, and stated that he was going to Boston to
meet a "Mr. Joost." The
defendant called Burkhart again in early October and stated that he had been
involved in a shooting in Boston and had been shot in the arm. The defendant further told Burkhart that, if
he wanted a car, he could pick up the defendant's Plymouth Sundance automobile
in a Dayton, Ohio, parking lot. The
defendant told Burkhart that he could have the car and its contents, but that
he wanted Burkhart to dispose of the Sig Sauer nine‑millimeter pistol
located in the console. Burkhart agreed
and the defendant mailed Burkhart the keys to the automobile, the parking
receipt, and directions to the lot.
Burkhart travelled to Dayton, Ohio, retrieved the car, and drove to his
parents' house in Salem, Missouri.
Burkhart gave his father the weaponry that was in the car. (FN7)
Burkhart returned to San Francisco where he deposited the clothing and
other items from the car in a storage locker rented by the defendant.
As a
result of Sergeant Lynch's information, San Francisco police, in cooperation
with Boston police, were able to trace the defendant's car to Burkhart. After much negotiation, Burkhart entered into
an immunity agreement and testified for the Commonwealth. Burkhart supplied investigators with
considerable information regarding the defendant, and he aided them in locating
him in Mexico. The defendant ultimately
was apprehended by Federal authorities in Guadalajara, Mexico, and was
extradited to the United States for prosecution in the Commonwealth.
The
defendant testified at trial. In
essence, he defended himself on the ground that he had been misidentified as
the person involved in the shooting on October 2, 1987. The defendant claimed that he purchased the
weapons and rented the apartment as part of a deal with James Burkhart to set
up a "safe house" in Boston, where Burkhart allegedly [411 Mass. 226]
planned to commit armed robbery. The
defendant testified that Burkhart and his criminal associate, Tony Kang, a
Korean‑Chinese individual, came to Boston on October 2, 1987. According to the defendant, while the three
men were in the Commonwealth Avenue apartment, Kang accidentally shot the
defendant in the arm. The defendant
stated that he thereafter left Boston and drove to Chicago to seek medical
attention from a nurse who was the girl friend of a friend. Since he was "on the lam" due to
the parole violation, the defendant explained, he was afraid to seek medical
attention at a hospital.
The
defendant concluded his testimony by recounting his travels back to Texas,
where his father arranged for him to receive medical treatment in Mexico. The defendant stated that he remained in
Mexico with relatives and did not return to the United States because of the
outstanding Federal arrest warrant for his parole violation.
1. Individual voir dire. The defendant claims that the judge erred in
denying his request to question the venire on an individual basis regarding
prejudice or bias against Asians. The
defendant asserts that the failure to permit the inquiry violated his
fundamental right to a fair trial under Federal law.
Prior to
jury selection, the defendant presented the judge with a motion for an
individual voir dire and thirty‑two proposed questions for potential
jurors. One of the questions inquired
into the jurors' possible bias or prejudice against persons of Asian or
Oriental extraction. The judge denied
the defendant's motion, stating that he believed the jury already responded to
most of the proposed questions when answering the jury
questionnaire. The judge invited the
defendant, however, to request additional juror questioning whenever he wanted
further assurance of a juror's impartiality.
On the
first day of empanelment, approximately fifty‑nine potential jurors
appeared for consideration. The judge
questioned the entire venire as to their bias or prejudice against [411 Mass.
227] the defendant generally, (FN8) and then he interviewed each member of the
venire individually. At the end of the
day five jurors were declared indifferent and seated on the jury. At no time did the defendant seek to ask any
potential juror about his or her bias or prejudice against Asians.
A second
venire assembled for questioning the following day. The defendant moved to strike this venire and
the five jurors seated the previous day on the ground that neither venire
included Oriental persons. Defense
counsel informed the judge at that time that the defendant was "[f]ull‑blood
Japanese." The judge denied the
defendant's motion and the jury selection was completed. During a lobby conference following the jury
selection, the judge informed defense counsel that he did not realize that the
defendant was Japanese, this fact never having been brought to his attention
nor having been apparent to him after meeting the defendant. In light of this information, however, the
judge offered to question the jurors individually in his lobby to ascertain
whether any of them harbored prejudice or bias against Asian persons. The defendant rejected this offer, expressing
the view that the inquiry could inflame the minds of the jurors.
In Commonwealth v. Young, 401 Mass. 390,
398, 517 N.E.2d 130 (1987), we adopted the rule that a judge must conduct an
individual voir dire of prospective jurors on the issue of racial prejudice in
cases involving interracial murder. As a
matter of law we held that in such cases a substantial risk exists that the
extraneous issue of race will affect the impartiality of the jury. Id. We based this principle on our
superintendency powers to implement the policy set forth in G.L. c. 234, § 28,
and not on constitutional considerations. Young, supra at 398 n. 8, 517 N.E.2d 130.
[1]
Significantly, the defendant does not rely on the Young case or the reasoning it employs to support his claim. Rather, the defendant asserts that he was
denied a right based on Federal law to have an individual voir dire conducted. Federal[411 Mass. 228] law requires, however, that an individual
voir dire be conducted only in cases "where racial issues 'are
inextricably bound up with the conduct of the trial.' "
Young, supra at 399, 517 N.E.2d 130, quoting Ristaino v. Ross, 424 U.S. 589, 597, 96 S.Ct. 1017, 1021‑22,
47 L.Ed.2d 258 (1976). Since the issue
of race was not even remotely connected to the conduct of this trial, there is
no ground on which to assert a constitutionally based right to an individual
voir dire in this case. "[T]he mere
fact that the defendant and the victim[s] [were] of different races does not
impose constitutionally mandated voir dire on the issue of race."
Young, supra at 400, 517 N.E.2d 130, citing Commonwealth v. Hobbs, 385 Mass. 863, 874, 434 N.E.2d 633
(1982). To be sure, there was no
suggestion at trial that "the defendant was a special target of racial
bias." Young, supra at 400, 517 N.E.2d 130. (FN9)
[2] Even
viewing the defendant's claim under the
Young rule, we find it is without merit.
The record indicates that the judge did not know that the defendant was
"[f]ull‑blood Japanese," or, more importantly, that the
defendant was concerned he would be the object of racial prejudice as a result
of his background. Defense counsel's
inclusion of one question regarding prejudice or bias against Asians in his set
of thirty‑two proposed questions to the jurors cannot be regarded as
having notified the judge or the Commonwealth of this fact. The defendant never brought this particular
issue to the judge's attention when the judge denied the defendant's motion to
have the questions answered by the venire, despite having been informed by the
judge that he would hear counsel on any particular matter he wanted to raise
before the potential jurors. Furthermore,
it is apparent from the record that the question of an individual voir dire on
the [411 Mass. 229] issue of racial prejudice was first properly raised by the
judge, after he considered the defendant's motion to strike the second venire
on the ground of a lack of representation of Asian persons. The defendant did not desire at that time to
question the jury, citing the likelihood of inflaming the minds of the jury by
doing so, despite the judge's offer to perform the questioning in a nonleading
manner. The judge is not required to
raise these issues for the defendant, especially where he has no factual basis
for inquiring into them. The
responsibility for addressing this issue must fall to the defendant.
[3] In any
event, the defendant has not demonstrated how the failure of the judge to
conduct an individual voir dire prejudiced his case. Commonwealth v. A Juvenile (No.
2), 396 Mass. 215, 224, 485 N.E.2d 170 (1985). Given the substantial amount of evidence
supporting a finding of the defendant's guilt in this matter, there appears no
reason to believe that the jury improperly considered race in arriving at their
findings.
2. Denial of the defendant's motions for a
required finding of not guilty. The
defendant argues that he was entitled to a required finding of not guilty of
murder in the first degree because the Commonwealth failed to introduce any
evidence of premeditation or deliberation.
In light of the evidence presented at trial, this argument borders on
the preposterous.
[4][5] In
order to establish premeditation and deliberation, it is incumbent on the
Commonwealth to demonstrate that the defendant's resolve to kill as a result of
reflection which "[was] not so much a matter of time as of logical
sequence." Commonwealth v. Soares, 377 Mass. 461,
469‑470, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62
L.Ed.2d 110 (1979), quoting Commonwealth
v. Tucker, 189 Mass. 457, 495, 76 N.E. 127 (1905). The Commonwealth abundantly proved the
element of deliberate premeditation in this case.
The
Commonwealth presented evidence at trial from which the jury reasonably could
find that, on the night of the shooting, the defendant believed that the police
had come to the apartment building to arrest him on the Federal warrant which issued
as a result of his parole violation.
With this [411 Mass. 230] thought in mind, the defendant armed himself
with a semiautomatic weapon and attempted to flee out the back of the building. The jury further could have found that, while
shooting at, wounding, and chasing Officer Torres in the public alley, the
defendant anticipated a confrontation with one or more police officers at the
entrance to the alley. (FN10) As expected, the defendant encountered the
victim, Officer Sergei. At the moment the
defendant arrived at the entrance to the alley, he turned, observed Officer
Sergei, hesitated for a few seconds, and then fired at least three rounds from
his semiautomatic weapon at Officer Sergei, hitting him in the chest, flank,
and buttock. There was competent medical
evidence that Officer Sergei died as a result of the trauma he suffered from
the bullet wounds. We would be hard
pressed to create a factual scenario more compelling than this to illustrate
deliberately premeditated murder. The
judge properly denied the defendant's motions for a required finding of not
guilty of murder in the first degree.
3. The missing ballistic evidence. The defendant argues that the judge erred
when he denied the defendant's motion for dismissal based on the Commonwealth's
alleged loss of bullet fragments which were removed from Officer Sergei at
Brigham and Women's Hospital prior to his death. The defendant theorized that this evidence
may have been exculpatory, because it could have proved that Officer Sergei was
shot by a weapon other than the one claimed to have been in the defendant's
possession at the time of the shooting.
The judge denied the defendant's motion, finding that the bullet
fragments had been lost by the hospital staff and that neither the Commonwealth
nor its agents ever possessed them. We
will not disturb these findings of fact in the absence of clear error.
Commonwealth v. Hine, 393 Mass. 564, 568, 471 N.E.2d 1342 (1984).
[6][7]
Whenever potentially exculpatory evidence is lost or destroyed, the judge must
weigh (1) the Commonwealth's culpability[411 Mass. 231] as to the lost evidence; (2) the materiality of the lost
evidence; and (3) the potential
prejudice to the defendant as a result of the unavailability of the evidence.
Commonwealth v. Willie, 400 Mass. 427, 432, 510 N.E.2d 258
(1987). In the present case, the judge
found that neither the Commonwealth nor the police possessed the bullet
fragments at any time. Based on credible
testimony, the judge concluded that the hospital staff failed to follow the
written hospital procedure for maintaining ballistic evidence and subsequently
lost the bullet fragments. These facts
justified the judge's conclusion that the Commonwealth was not culpable for
this loss. See Commonwealth v. Pisa, 372 Mass. 590, 596‑597, 363 N.E.2d
245, cert. denied, 434 U.S. 869, 98 S.Ct. 210, 54 L.Ed.2d 147 (1977).
[8][9]
Evidence is material if, in considering the entire record, it creates a
reasonable doubt as to the defendant's guilt that would not otherwise exist.
Commonwealth v. Wilson, 381 Mass. 90, 107, 407 N.E.2d 1229 (1980),S.C., 399 Mass. 455, 504 N.E.2d 1060
(1987). Quite apart from the missing
bullet fragments, the Commonwealth introduced substantial evidence at trial
which warranted finding that Officer Sergei died as a result of injuries caused
by bullets which could have come from the defendant's weapon. Therefore, even if the missing bullet
fragments would have established that Officer Sergei was shot by bullets
discharged from two different weapons, it is difficult to see how they would
raise a doubt as to the defendant's guilt.
The judge correctly concluded that the missing evidence was not material
to the defendant's case.
[10]
Lastly, the judge determined that the defendant was not prejudiced by the fact
of the missing bullet fragments. A
defendant may be prejudiced by lost or destroyed evidence, if such evidence is
exculpatory. Commonwealth v. Willie, 400 Mass. 427,
433, 510 N.E.2d 258 (1987). A defendant
is entitled to relief, however, only if he establishes that the missing
evidence provides a reasonable possibility of being favorable to his cause
"based on concrete evidence rather than a fertile imagination."
Commonwealth v. Neal, 392 Mass. 1, 12, 464 N.E.2d 1356 (1984). The defendant claims prejudice in this case
to the extent that, without the missing ballistic evidence, he could not
support [411 Mass. 232] his testimony that either Burkhart or Kang shot Officer
Sergei. Given the overwhelming evidence
with respect to the defendant's possession and use of the murder weapon, the
defendant's argument clearly is the product of a fertile imagination. The judge properly denied the defendant's
motion to dismiss based on the missing bullet fragments.
4. Witness identifications. The defendant claims that the judge erred in
allowing a witness who was present at the scene of the shooting to identify the
defendant at trial. (FN11) The defendant moved for a mistrial based on
the alleged failure of the Commonwealth to provide him with information
concerning the witness's prior identification of the defendant from a
newspaper picture. The defendant further
claims that the judge erred in denying his motion to suppress the out‑of‑court
identifications of the defendant by Officers Torres and Rogers. The defendant asserts that he is entitled to
a new trial because the circumstances of all three identifications were
unnecessarily suggestive. There is no
merit to these arguments.
[11] The
defendant first contends that Officer Torres's identification of the defendant
from a photographic array, after his exposure to pretrial publicity, was made
under unduly suggestive circumstances and should have been suppressed. "Under our decisions a criminal defendant
has the burden to prove, by a preponderance of the evidence, that the witness
was subjected by the State to a pretrial confrontation, either photographic or
in person, 'so unnecessarily suggestive and conducive to irreparable mistaken
identification' as to deny the defendant due process of law."
Commonwealth v. Venios, 378 Mass. 24, 26‑27, 389 N.E.2d 395
(1979), quoting Commonwealth v. Botelho,
369 Mass. 860, 865‑866, 343 N.E.2d 876 (1976). In considering whether to suppress such
evidence, a judge should consider the totality of the circumstances attending
the confrontation [411 Mass. 233] to determine whether it was unnecessarily
suggestive. Commonwealth v. Botelho, supra.
[12] In
this case, the judge found that there was nothing in the photographic array or
in the manner in which the photographs were reproduced and displayed to Officer
Torres that tainted his identification of the defendant. In reviewing a judge's denial of a
defendant's motion to suppress, this court will "accept the motion judge's
subsidiary findings of fact absent clear error." Commonwealth v. Yesilciman,
406 Mass. 736, 743, 550 N.E.2d 378 (1990), and cases cited. There was no error in the judge's denial of
the motion to suppress Officer Torres's identification. Officer Torres was shown a photographic array
of eleven photographs while he was in the hospital seven days after the
shooting. There was nothing improper
about the number of photographs or the seven‑day delay.
Commonwealth v. Downey, 407 Mass. 472, 478, 553 N.E.2d 1303
(1990). Officer Torres testified that he
had not seen any photographs of the defendant, either on television or in the
newspapers, prior to viewing the photographic array. Considering these facts, we conclude that the
judge did not err in allowing Officer Torres's pretrial identification in
evidence. Because the circumstances of
the officer's pretrial identification were not unnecessarily suggestive, no
taint attached to his in‑court identification. Commonwealth v. Clifford,
374 Mass. 293, 304, 372 N.E.2d 1267 (1978), and cases cited.
[13][14][15]
The crux of the defendant's argument against Officer Rogers's identification is
that the circumstances of his out‑of‑court identification of the
defendant, which was based on seeing the defendant's portrayal on a wanted
poster, were highly suggestive and thus tainted his in‑court
identification. The judge found that
Rogers's identification resulted from an unintentional, accidental
confrontation. In examining the totality
of the circumstances, we agree with the judge that this confrontation was not
unnecessarily suggestive. Rogers
observed the wanted poster over the shoulder of another police officer who was
unaware of Rogers's presence. It was
only at that point that Rogers recognized the photograph on the poster and
notified the detectives that this photograph was a [411 Mass. 234] portrayal of
the individual whom he had seen on the night of the shooting. While an identification from a single
photograph can be inadmissible, it is not subject to a per se exclusion.
Commonwealth v. Storey, 378 Mass. 312, 317, 391 N.E.2d 898 (1979),
cert. denied, 446 U.S. 955, 100 S.Ct. 2924, 64 L.Ed.2d 813 (1980). An accidental confrontation, when the police
make no attempt to elicit an improper identification, is permissible.
Commonwealth v. D'Ambra, 357 Mass. 260, 263, 258 N.E.2d 74
(1970). There being no evidence of any
improper police activity‑‑indeed, the defendant does not even
contend that there is any such evidence‑‑we affirm the judge's
denial of the motion to suppress Rogers's identification.
[16] The defendant next asserts that the
prosecution failed to provide him with exculpatory information that a witness
had identified him from a newspaper photograph, and contends that this
identification was also the product of unnecessarily suggestive circumstances. On cross‑examination, the witness
stated that she had seen the defendant's photograph in a newspaper in the
summer of 1988 and that she had later so informed the Commonwealth. On the following day of trial, the defendant
moved to strike and thereafter moved for a mistrial based on the witness's
testimony. The judge denied these
motions. On appeal, "our review is
limited to whether it was an abuse of discretion for the judge to deny such a
motion." Commonwealth v. Perez, 405 Mass. 339, 345
n. 8, 540 N.E.2d 681 (1989). Based on
the record as a whole, we cannot say that the judge abused his discretion. Contrary to the defendant's assertion, there
is a dispute as to whether the witness communicated with the district
attorney's office after seeing the defendant's picture in a newspaper and
whether the Commonwealth possessed this information. The prosecutor did not learn about the
witness's observation of the newspaper photograph until the day of her testimony. There is nothing in the record to show that
the Commonwealth even possessed the supposedly exculpatory information which
the defendant claims the Commonwealth withheld from him.
[17]
Additionally, there was nothing suggestive about the circumstances of the
witness's identification. In the absence
of [411 Mass. 235] police manipulation of the press, "simple exposure to
the media is not sufficient ground to suppress an identification."
Commonwealth v. Colon‑Cruz, 408 Mass. 533, 542, 562 N.E.2d 797
(1990). "The initial burden rests
on the defendant to show, by a preponderance of the evidence, that, considering
the totality of the circumstances attending the particular identification, the
witness was subjected by the State to
an identification so unnecessarily suggestive and conducive to irreparable
misidentification as to deny the defendant due process of law" (emphasis
added).
Commonwealth v. Holland, 410 Mass. 248, 253, 571 N.E.2d 625
(1991). In this case, the State
subjected the witness to nothing; she
simply happened upon the newspaper photograph on her own. Her identification testimony was properly
presented to the jury.
5. Denial of the motions to exclude certain
evidence of the defendant's past misconduct. The defendant strenuously argues that the
judge erred when he allowed the Commonwealth to introduce evidence of prior bad
acts. First, the defendant contends that
the judge improperly allowed Sergeant Greg Lynch to testify as to his
observations of the defendant outside a San Francisco movie theater in August,
1987. Specifically, the defendant argues
that Lynch's description of a handgun he saw the defendant carrying on that
occasion was irrelevant and highly prejudicial.
(FN12) The defendant moved to
strike the testimony on that ground. The
Commonwealth responded, and the judge agreed, that the testimony properly was
admitted for the purpose of demonstrating that the defendant possessed the
means to accomplish the crime, regardless of whether the defendant actually
employed that means to commit the crime.
Since the defendant objected to the testimony, we consider whether the
judge abused his discretion in allowing the testimony and committed palpable
error. [411 Mass. 236] Commonwealth v. Marangiello, 410 Mass.
452, 456, 573 N.E.2d 500 (1991).
[18][19]
"Evidence of prior bad acts is not admissible to show that the defendant
has a criminal propensity or is of bad character." Commonwealth v. Robertson,
408 Mass. 747, 750, 563 N.E.2d 223 (1990).
Such evidence, if relevant, may be admitted, however, if it is offered
for a purpose other than impugning the defendant's character, and if its probative value is not
substantially outweighed by any prejudice. Id.
The testimony of Sergeant Lynch passes muster under this test. As the Commonwealth states, the testimony
speaks to the defendant's ability to possess the means to commit the crimes
alleged.
Id. The judge properly
determined, moreover, that the probative value of this evidence outweighed any
possible prejudice to the defendant by its admission. (FN13)
[20][21]
The defendant also attacks the judge's decision to allow the Commonwealth to
introduce evidence of various weapons discovered in the defendant's car at the
time Burkhart possessed it, as well as weapons found in the San Francisco
storage locker rented by the defendant.
Contrary to the defendant's assertions, however, the Commonwealth did
not introduce this evidence. Instead,
the defendant elicited this testimony from Burkhart during cross‑examination. Having opened the door to this information,
the defendant essentially invited the Commonwealth to address the issue on
redirect examination. See Commonwealth v. Mahoney, 400 Mass. 524,
532, 510 N.E.2d 759 (1987). For this
reason, the defendant's claim of prejudice is highly suspect. Even assuming, however, that the testimony
prejudiced the defendant in some manner, such prejudice did not create a
substantial risk of a miscarriage of justice in this case. Commonwealth v. Lawrence,
404 Mass. 378, 394, 536 N.E.2d 571 (1989).
The Commonwealth's case against the defendant was very strong, and the
jury had abundant evidence [411 Mass. 237] to convict the defendant of murder
and other crimes, regardless of this testimony.
[22] The
defendant next asserts that the evidence of his status as a fugitive from
justice should have been excluded at trial because it unfairly portrayed him as
a danger to society. We disagree. This relevant evidence established a critical
aspect of the Commonwealth's case, namely, motive. The Commonwealth introduced evidence of the
defendant's parole violation in order to explain why he fled from the apartment
building when the police arrived.
Evidence of prior misconduct is admissible for this purpose. (FN14) Commonwealth v. Libran, 405 Mass. 634,
640, 543 N.E.2d 5 (1989).
[23] Finally,
the defendant argues that the judge should not have allowed the Commonwealth to
present evidence of the defendant's flight, his hiding in Mexico, and his
subsequent arrest by Federal authorities.
The defendant claims that the introduction of such evidence placed him
in an unfavorable light and constituted reversible error. The evidence offered by the Commonwealth
properly was provided to the jury as evidence of the defendant's consciousness
of guilt.
Commonwealth v. Toney, 385 Mass. 575, 583‑584, 433 N.E.2d 425
(1982). There was no error in the
admission of this evidence.
6. G.L. c. 278, § 33E. After reviewing the entire record, we are
satisfied that there exists no reason for us to exercise our extraordinary
power under G.L. c. 278, § 33E, to disturb the verdict of murder in the first
degree returned in this case.
Judgments affirmed.
(FN1.) The jury found the defendant not guilty
on indictments charging assault with intent to murder Officers Rogers and
Kennedy.
(FN2.)
There was evidence at trial that the defendant used several aliases, including
Mark Taira, David Taira, and John Ling.
The defendant testified at trial and admitted that he had done so.
(FN3.)
The defendant testified that the black box was an "acoustical modem"
which enabled him to place long‑distance calls to a computer and leave
messages.
(FN4.)
The tenant's apartment windows faced the rear of the building and overlooked
Public Alley No. 905.
(FN5.)
The Commonwealth proceeded at trial on the theory that the defendant saw the
police cruisers in front of the building, heard the police ringing the doorbell
and assumed that the police had come to arrest him on a warrant that had issued
for his arrest based on his violation of Federal parole. As a result, the defendant planned an
escape. In keeping with this theory, the
Commonwealth contended at trial that the sound reported by the female tenant
was caused when the defendant jumped from the second‑story rear staircase
of the building to an air conditioning unit several feet below. In support of this theory, the Commonwealth
introduced evidence of footprints found on the air conditioning unit which were
similar to those found in the defendant's apartment.
(FN6.)
Approximately five or six weeks following this incident, Sergeant Lynch
observed several wanted posters depicting the defendant. He testified that he recognized the defendant
as the person whom he saw outside the movie theater and confirmed his
suspicions by checking the police computer information and matching it with the
information supplied by the Boston police on the wanted poster. Sergeant Lynch reported his findings to his
police captain.
(FN7.)
The weapons later were retrieved from Burkhart's father and presented as
evidence at trial. Ballistics experts
for the Commonwealth performed tests on the weapon and ammunitions and, based
on their findings, opined at trial that the bullets which struck Officers
Torres and Sergei were discharged from the defendant's Sig Sauer semiautomatic
pistol.
(FN8.) The judge asked the venire: "Are any of you aware [or] sensible of
any bias or prejudice in relation to the defendant, the Commonwealth, or any of
the possible witnesses in this case?"
(FN9.) Indeed, the trial judge pointed out,
"[R]ace has no place in this case....
[T]he person who was firing at police officers was firing at blue
uniforms, not firing at people of different races, colors." Furthermore, the record reflects that, although
the defendant is Japanese, the victims included two white men (one of whom was
the murder victim, Officer Sergei), an Hispanic, and a black man. Given these demographics, it is hard to
figure that the jury regarded the defendant's race as a significant factor in
this case.
(FN10.) The Commonwealth contended at trial
that the defendant knew that other officers would appear in the alley area,
since he overheard Officer Torres radio that he had apprehended a suspect
there.
(FN11.) This witness observed the defendant
during the shoot‑out with the police on October 2, 1987. She saw the defendant while she was standing
across the street from the apartment building, approximately 116 feet away from
the alley entrance.
(FN12.) As part of his claim of prejudice, the
defendant contends that Sergeant Lynch described a gun different from the
murder weapon and, therefore, his testimony had no probative value and resulted
in substantial harm to the defendant.
The Commonwealth asserts that Sergeant Lynch described a gun like the
murder weapon, the only variation being the color: dark blue rather than black.
(FN13.) It is noteworthy that the defendant
testified at trial that Sergeant Lynch may very well have seen him carrying a
gun at a San Francisco theater.
(FN14.) We note that the defendant capitalized
on this evidence while he testified in an effort to explain his actions while
"on the lam."