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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. Rise, 50 Mass.App.Ct.
836 (2001)
Appeals Court of Massachusetts,
No. 99‑P‑211.
Argued
Decided
Jonathan Shapiro,
Paul B. Linn, Assistant District Attorney, for the
Commonwealth.
Present BROWN, PERRETTA,
and GREENBERG, JJ.
BROWN, J.
The
defendant, a juvenile, appeals from his convictions in the Superior Court of
murder in the second degree (of Kurt Headon), illegal
possession of a rifle, and assault and battery by means of a dangerous weapon
(against Michael Hodge). (FN1) On appeal, the defendant argues that the
District Court judge erred in ordering that he be tried as an adult. The defendant also claims that a Superior Court judge
erroneously denied his motion to suppress a .30 caliber rifle seized pursuant
to a search warrant, and that the trial judge erroneously admitted evidence of
a statement made during booking, erroneously admitted evidence of subsequent
bad acts, unfairly and incorrectly handled evidence relative to motive, and
refused to give a curative instruction after the prosecutor vouched for the
credibility of a Commonwealth witness.
On
Detective
George Foley recovered .30 caliber and .38 caliber [50 Mass.App.Ct. 838] shell casings and bullets from the scene. Ballistics tests determined that all the .38
caliber ammunition was discharged from the same gun and similarly all the .30
caliber ammunition was discharged from another weapon. Nearly a month later, on
The
following evening the defendant was arrested and charged with the shooting at
Corbin's apartment. At booking, the
defendant reported that his address was the second floor of 76 Greenwood Street. A search warrant issued authorizing a search
of the entire house at that address.
Upon executing the warrant, the police found the defendant's mother
sitting on a wicker couch on the first floor.
A search of the couch revealed a .30 caliber rifle that ballistics tests
later revealed as the gun that had discharged the shell casings found at both
the murder scene and Sheila Corbin's apartment.
1. Juvenile transfer. "A transfer hearing is held to determine
whether the child presents a danger to the public, and whether the child is
amenable to rehabilitation within the juvenile justice system."
Commonwealth v. O'Brien, 423 Mass. 841, 845, 673 N.E.2d 552 (1996)
(citation omitted). "General Laws
c. 119, § 61, sets forth the requirements governing a transfer
hearing." (FN3) Commonwealth v. Berry, 420
Mass. 95, 99, 648 N.E.2d 732 (1995).
"There is no specific requirement that a judge weigh these factors
in a certain manner or achieve some predesigned
balance." Ward v. Commonwealth, 407 Mass. 434, 438,
554 N.E.2d 25 (1990), quoting from A
Juvenile v. Commonwealth, 370 Mass. 272, 282, 347 N.E.2d 677 (1976).
The defendant argues that the District Court
judge, sitting in a juvenile session, erred in ordering that he be tried as an
adult pursuant to G.L. c. 119, § 61. (FN4)
The defendant contends that the judge did not appropriately consider all
of the relevant statutory [50 Mass.App.Ct. 839]
factors (FN5) but rather based his decision exclusively on the nature of the
crime.
In that
light it is our task to "determine whether there has been a 'material
failing in the prescribed steps leading to the issuance of the order of
transfer.' " Commonwealth v. O'Brien, supra at 846,
673 N.E.2d 552, quoting from Commonwealth
v. Matthews, 406 Mass. 380, 384, 548 N.E.2d 843 (1990). Commonwealth v. Spencer, 45
Mass.App.Ct. 33, 35‑36, 695 N.E.2d 677 (1998).
[1] We
reject the defendant's argument that the judge improperly based his decision
solely on the seriousness of the crime.
The judge's subsidiary findings, for which there is ample support in the
record, and conclusions set out in a twenty‑six page memorandum of
decision reveal a thorough and detailed consideration of all of the statutory
factors. (FN6)
[2]
"[A] judge may 'attach substantial significance to the seriousness of the
offense, as this does bear on both the danger to the public and an individual's
prospects for rehabilitation.
Seriousness of the offense is also included as an element in the
statute....' " Ward v. Commonwealth, supra at 439, 554
N.E.2d 25, quoting from Commonwealth v.
Costello, 392 Mass. 393, 397, 467 N.E.2d 811 (1984) (citations
omitted). The judge here, however, cited
numerous instances of past behavior and other events that undermined the
defendant's potential for rehabilitation, including: (1) the defendant "deliberately schemed
the assassination of Kurt Headon," (2) a
juvenile record of at least four other separate offenses, (3) "[a] review
of his probation report indicat[ing]
that Tshombe did not appear for appointments, did not
participate in community service, and was not attending school as
required," [50 Mass.App.Ct. 840]
4) the defendant's mother's failure to "follow through with the defendant
on important school issues," and (5) poor school performance. See in this regard Commonwealth v. Berry, 420 Mass. at 99‑100, 648 N.E.2d
732. The judge was also within his
discretion to discount the testimony proffered by the defendant's expert, Dr.
Ebert, reasoning that the defendant's persistent misconduct negated Dr. Ebert's
conclusions. There was no error.
2. Motion to suppress. The defendant contends that the Superior
Court judge erred in denying his pretrial motion to suppress evidence of the
.30 caliber rifle seized pursuant to a search warrant. According to the defendant, the search
warrant was constitutionally and statutorily (see G.L.
c. 276, §§ 1, 2) defective for lack of specificity or particularity in the
description of the place to be searched.
On
November 2, 1994, Boston police officers executed a warrant for 76 Greenwood Street, described in the warrant as a "2
1/2 story beige wooden dwelling."
The two weapons allegedly used by Levar Rise
and the defendant in the murder of Kurt Headon,
particularly a .30 caliber rifle, any related ammunition, as well as items to
show ownership or control of the premises were the objects of the search. The defendant claims that the structure at 76
Greenwood Street contains two distinct apartments, both of which were searched
upon the execution of the warrant. The
defendant introduced evidence at the suppression hearing that Boston police
detective John Martel, the affiant, knew at the time of his application for the
warrant that 76 Greenwood Street contained two apartments but failed to attest
to this in his affidavit. Compare Commonwealth v. Luna, 410 Mass. 131,
135‑137, 571 N.E.2d 603 (1991).
[3] The
motion judge found that "Martel had probable cause to search both units
within 76 Greenwood Street."
Compare Commonwealth v. Erickson,
14 Mass.App.Ct. 501, 504, 440 N.E.2d 1190
(1982). That finding is not clearly
erroneous, given the affiant's belief derived from his "knowing the Rise
family for the past four years" and his observations on prior visits to
the premises that "members of the Rise family occupied the entire
premises." See Commonwealth v. LaPlante, 416 Mass. 433,
439, 622 N.E.2d 1357 (1993). This
opinion was buttressed by the other recitations in the affidavit. (FN7)
[4][5][6]
In any event, we fairly could conclude that the defendant [50 Mass.App.Ct. 841] lacked standing to challenge the search. A defendant may be granted automatic standing
to challenge the seizure of property in the possession of another at the time
of the search if "possession of the seized evidence at the time of the
contested search is an essential element of guilt." Commonwealth v. Amendola, 406 Mass. 592, 601, 550 N.E.2d 121
(1990). See Commonwealth v. Lodge, 431 Mass. 461, 474‑475, 727 N.E.2d
1194 (2000). The automatic standing
rule, however, "does not relieve a defendant who unlawfully intruded on
someone else's reasonable expectation of privacy from establishing that he had
a reasonable expectation of privacy himself." Commonwealth v. Carter, 424
Mass. 409, 412, 676 N.E.2d 841 (1997).
Here, the
defendant in answer to a routine booking question stated that he lived on the
second floor of 76 Greenwood Street.
(FN8) The gun was found in the
first floor apartment in a room that the defendant claimed was rented to a
person not connected to the suspected offenses.
(FN9) A defendant may not
"assert the constitutional rights of someone in no way involved with his
allegedly criminal conduct." Id. at 411 n. 3, 676 N.E.2d 841. Therefore, the defendant lacked standing to
challenge the search of the first floor apartment at 76 Greenwood Street. (FN10)
3. Booking statement. Detective Martel testified that the
defendant gave his address as the second floor of 76 Greenwood Street when he
was being booked on November 2, 1994.
The defendant contends that the admission of his address was
erroneous because the statement was elicited before he was advised of his
Miranda rights. (FN11)
[7] The
trial judge ruled that the booking officer's request for the defendant's
address properly fell within the "routine booking [50 Mass.App.Ct. 842] question" exception to the Miranda rule. See
Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct.
2638, 110 L.Ed.2d 528 (1990). Even
though "responses to booking questions [may be] testimonial in nature,
their use would not be prohibited by art. 12 unless incriminatory evidence was
obtained by compulsion." Commonwealth v. Acosta, 416 Mass. 279,
283, 627 N.E.2d 466 (1993).
[8] In
order for the booking question to be compelled, it must be designed or
reasonably likely to elicit an incriminating response. See
Commonwealth v. White, 422 Mass. 487, 500‑502, 663 N.E.2d 834
(1996). There is no indication here that
the question of where the defendant lived would have been reasonably likely to
elicit an incriminating response. At the
time the defendant was booked, the police had already applied for the warrant
to search 76 Greenwood Street.
Further,
at the time of his booking, the defendant was fourteen years old. The police would not have been able to book
the defendant without first summoning an interested adult. See G.L. c. 119, §
67. (FN12) See also
Commonwealth v. Hogan, 426 Mass. 424, 430, 688 N.E.2d 977 (1998). We are thus not prepared to say an inquiry at
booking concerning the address of a fourteen year old juvenile cannot be
made. In these circumstances, the
routine booking question asked of the minor defendant did not violate art. 12
of the Massachusetts Declaration of Rights.
4. Evidence of subsequent bad acts. The Commonwealth, over objection, was
allowed to introduce evidence of subsequent bad acts allegedly committed by the
defendant to show that he had access to the murder weapon. The defendant contends that this was error
because the Commonwealth failed to meet its burden of proof and the probative
value of the evidence was outweighed by its prejudicial effect. We disagree.
See Commonwealth v. Leonard,
428 Mass. 782, 785‑786, 705 N.E.2d 247 (1999).
[9][10] [50 Mass.App.Ct.
843] In order for evidence of other
bad acts to be admissible, the Commonwealth must show by a preponderance of the
evidence "that the act occurred and that the defendant was the
actor." Id. at 785, 705 N.E.2d 247 (citation
omitted). The facts are sufficient to
prove, by a preponderance of the evidence, that the defendant committed the
shooting into Corbin's apartment. The
Commonwealth introduced evidence that there was an altercation between the
defendant and Sheila Corbin on November 1, 1994, that resulted in physical
violence. (FN13) Later that same evening, upon returning to
her apartment, Corbin discovered that someone had fired bullets into her
residence while she was away. Corbin
called the police and the police gathered shell casings from near the apartment.
Ballistic evidence from the shell casings revealed that the gun used to
shoot into Corbin's apartment was the same gun used in the shooting of Headon and Hodge.
Witnesses testified that they saw the defendant shoot into Corbin's
apartment. Witnesses from the Headon murder scene also testified that they saw the
defendant shoot at Kurt Headon with a rifle.
[11] The
defendant's claim that the prejudicial effect of the evidence outweighs the
probative value is unavailing. Contrary
to the defendant's contentions, the connection between the defendant, the
murder of Kurt Headon and the shooting into Corbin's
apartment was not so attenuated as to preclude its admission in evidence.
5. Evidence of motive. The judge allowed the Commonwealth to
introduce evidence regarding the defendant's motive to kill Kurt Headon, but did not allow the defendant to introduce
evidence of other people who might have had a motive to kill Headon. The
defendant contends that the admission of the motive evidence and the denial of
his request to admit similar evidence was error. There was no error in either respect.
[12] The
motive evidence allowed by the judge included testimony regarding various
altercations between Kurt Headon and members of the
Rise family, although none involved the defendant and Headon. There was testimony that Kurt Headon had previously broken into and stolen property from
the home of the defendant's cousin, Jawana Rise, and
that another of the defendant's cousins, Ray Rise, had shot Kurt Headon in retaliation and was being prosecuted for the
shooting. The Commonwealth argued that
the defendant's motive to shoot Headon [50 Mass.App.Ct.
844] was to prevent him from
testifying against the defendant's cousin, Ray.
[13]
Motive evidence is clearly admissible in a murder trial. See
Commonwealth v. Ashley, 427 Mass. 620, 624, 694 N.E.2d 862 (1998). "Determination of the weight of such
evidence is for the jury, and evidence which merely suggests rather than
'clearly shows' a motive for the crime may still be ruled admissible. There is no requirement that evidence [of
motive] be conclusive in order to be admissible." Id. at 624‑625, 694
N.E.2d 862, quoting from Commonwealth v.
St. Germain, 381 Mass. 256, 271, 408 N.E.2d 1358
(1980).
Here, the
evidence supported a reasonable inference that the defendant was aware of Headon's alleged burglary and his pending testimony against
Ray Rise. There was testimony that the
four Rise cousins frequented the same areas and frequently discussed the
burglary. Ray Rise's court proceedings
were matters of public record. The
evidence suggested a motive for the shooting of Headon.
[14] The
judge did not err in excluding the defendant's proffered evidence that other
people had a motive to kill Headon. (FN14)
Evidence offered by the defendant to show that others had motive to
commit the crime "poses a real threat of prejudice, especially the risk of
confusing jurors by diverting their attention to wholly collateral matters
involving persons not on trial." Commonwealth v. Rosa, 422 Mass. 18, 22,
661 N.E.2d 56 (1996). Here, the
defendant sought to introduce motive evidence relating to events wholly
collateral to the crime charged without any evidence to suggest that either of
the individuals named actually committed the crime in question.
[15] 6. Closing argument. In his closing argument, defense counsel argued
that a Commonwealth witness, Jerome Davis, was not credible because he was
motivated to aid the prosecution in return for favorable consideration at his
pending
probation hearing. The prosecutor responded by stating that this
was not true and, if it were, he would have told the jury "because there
is a legal obligation" for him to do so.
(FN15) The defendant contends
that the prosecutor's remarks constituted improper vouching for Davis's
credibility, and that the court erred by refusing a curative[50 Mass.App.Ct.
845]
instruction after the prosecutor's statements. Cf.
Commonwealth v. Pearce, 427 Mass. 642, 644, 695 N.E.2d 1059 (1998).
The
defendant's argument is unavailing. The
prosecutor's statement was not a personal belief in the credibility of the
witness but, rather, an accurate statement of the law and evidence. See
Commonwealth v. Schand, 420 Mass. 783, 791, 653
N.E.2d 566 (1995), citing Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (prosecutor has a legal duty
to disclose any promises offered by the government to a witness).
Judgments affirmed.
(FN1.) The defendant was acquitted of the
charge of armed assault with intent to murder Hodge.
(FN2.)
Levar Rise was tried separately, and was convicted of
first degree murder. His appeal is
pending before the Supreme Judicial Court.
(FN3.)
In 1996, the Legislature enacted the youthful offender act, St.1996, c. 200,
and repealed G.L. c. 119, § 61. Commonwealth v. Clint C.,
430 Mass. 219, 222, 715 N.E.2d 1032 (1999).
However, this appeal is governed by the former statute, prior to its
being repealed.
(FN4.)
The defendant was born November 12, 1979, and was fourteen years of age at the
time of the murder.
(FN5.)
The statutory factors are: "the
nature, circumstances, and seriousness of the alleged offense; the child's court and delinquency
record; the child's age and
maturity; the family, school and social
history of the child; the success or
lack of success of any past treatment efforts of the child; the nature of services available through the
juvenile justice system; the adequate
protection of the public; and the
likelihood of rehabilitation of the child." G.L. c. 119, § 61,
as amended by St.1991, c. 488, § 3.
(FN6.)
Some fifteen pages of the memorandum are devoted to subsidiary findings on the
factors that undermined the defendant's potential for rehabilitation,
including, but not limited to, the abysmal academic attendance record and the
continued behavioral problems the defendant exhibited when he did attend
school, e.g., swearing at teachers, urinating in public, harassing other
students and other such disruptive conduct.
The judge also made reference to the defendant's lack of positive family
support, his court and delinquency record, and his repeated misconduct while in
the custody of the Department of Youth Services.
(FN7.)
Detective Martel averred, among other things, that witnesses saw both the
defendant and Levar Rise run toward that structure
after the shooting at Corbin's house and that moments later Levar
was pat‑frisked in front of the structure, and no weapon was found. Martel also averred that a letter carrier
confirmed that the defendant and Levar lived at this
address.
(FN8.)
We note in passing that the defendant's affidavit in support of his motion to
suppress recites, "I have never lived at 76 Greenwood Street."
(FN9.)
The defendant has a dilemma: if the
structure is, in fact, two separate apartments, and the defendant resides in
the upper unit, he lacks standing to challenge the search of the first floor
apartment; if the defendant had full
access to the interior of the structure, the multi‑unit character of the
premises evaporates in a constitutional sense.
(FN10.) Deciding as we do, we need not reach
the question whether the admission of the .30 caliber rifle was harmless
error. We are inclined to think it would
have been. See Commonwealth v. Perez, 411 Mass. 249, 261, 581 N.E.2d 1010 (1991).
(FN11.) The defendant presses this point, as
he must, under art. 12 of the Massachusetts Declaration of Rights.
(FN12.) General Laws c. 119, § 67, as amended
by St.1991, c. 519,§ 2, provides in pertinent part: "[W]henever a
child between seven and seventeen years of age is arrested with or without a
warrant, as provided by law, the officer in charge of the police station ... to
which the child has been taken shall immediately notify ... at least one of the
child's parents, or, if there is no parent, the guardian or person with whom it
is stated that such child resides, and shall inquire into the case." It would seem only reasonable that a booking
officer, in order to satisfy the statutory responsibilities and in order to
complete the administrative booking process, would have to ask a juvenile who
had been arrested and taken into custody, where he or she lived. The defendant's claim of error thus also
falters on the issue of compulsion in light of the statutory command of c. 119,
§ 67.
(FN13.)
The record indicates that Corbin got the better of the defendant in that
altercation.
(FN14.) The defendant sought to show that Headon testified against two men not connected to this case
in any way.
(FN15.) The prosecutor argued as follows: "The one thing that [counsel] forgot to
mention, of course, is that if [Davis] was getting anything from the
Commonwealth, me, you would be told that because there is a legal obligation.
"I
wish I had the power all these defense attorneys suggest we have that I could
walk down the hall and pardon people left and right but it simply doesn't happen. He is getting nothing, otherwise you would
have heard about it. To quote [counsel],
'It's not like that.' It's not like
that because it isn't."