|
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. Rock, 429
Supreme Judicial Court of Massachusetts,
Argued
Decided
Frances L. Robinson for the defendant.
Joseph M. Makalusky, Assistant District Attorney,
for the Commonwealth.
Present:
WILKINS, C.J., ABRAMS, LYNCH, FRIED, &
ABRAMS, J.
The
defendant, Edker Rock, appeals from his convictions of murder in the first
degree and unlawful possession of a firearm.
(FN1) G.L. c. 265, § 1. G.L. c. 269, § 10 (a ). We affirm the
convictions. We decline to exercise our
power under G.L. c. 278, § 33E, in favor of the defendant on the conviction of
murder in the first degree.
On the
night of the murder, two police officers were covertly observing a street
corner in anticipation of drug sales.
The officers saw a man, later identified as the codefendant Jeffrey
Jones, approach the street corner. The
officers heard a gunshot and saw that a man was felled. The codefendant fled to a vehicle, which was
standing with the engine running, passenger door open, lights off, and a driver
inside. The vehicle sped away. A witness saw the vehicle and the
registration plate and gave the information to the police. The officers relayed the information about
the shooting over the radio.
The night
of the shooting, other police officers were in the area, including two
plainclothes officers patrolling in an unmarked vehicle. The officers heard radio calls about the
shooting and, within ten minutes of the shooting, saw two males, the defendant
and the codefendant, running. The
officers followed in the unmarked cruiser, caught up to the men and asked,
"Guys, can I talk to you for a second?" The officers got out of their vehicle. The men appeared nervous and one of the
officers saw a bulge under the defendant's shirt. A patfrisk was conducted, a gun was
recovered, and the two were arrested.
One of the officers who had been observing the corner at the time of the
shooting arrived and identified the codefendant as the shooter. At the time of arrest, the defendant made
several inculpatory statements.
The
defendant moved to suppress certain evidence based on a claim that the police
unlawfully stopped him and conducted an
[429
1. Stop of the suspects. The
defendant contends that the motion judge erred in denying the motion to
suppress. According to the defendant,
the officers effectuated a seizure by pursuing the defendants in the police
cruiser, and that seizure was not founded on reasonable suspicion. We disagree.
[1][2]
"[A] pursuit, which, objectively considered, indicates to a person that he
would not be free to leave the area (or to remain there) without first
responding to a police officer's inquiry, is the functional equivalent of a
seizure, in the sense that the person being pursued is plainly the object of an
official assertion of authority, which does not intend to be denied, and which
infringes considerably on the person's freedom of action."
Commonwealth v. Stoute, 422 Mass. 782, 789, 665 N.E.2d 93
(1996). However, "not every
encounter between a law enforcement official and a member of the public
constitutes an intrusion of constitutional dimensions requiring
justification." Id. Rather, a person is
"seized," "if, in view of all of the circumstances surrounding
the incident, a reasonable person would have believed that he was not free to
leave." Id. at 786, 665 N.E.2d 93, quoting Commonwealth v. Borges, 395 Mass. 788,
791, 482 N.E.2d 314 (1985).
[3] The
motion judge found the following. The
officers were driving an unmarked cruiser when they turned to follow the
defendants. They did not activate the
cruiser's blue lights or sirens. The
officers followed the defendants for 150 feet until the defendants voluntarily
stopped running. One officer left the
cruiser, identified himself, and said, "Guys, can I talk to you for a
second?" One officer stepped
between the two defendants.
We conclude that this pursuit did not rise to
a seizure because a reasonable person would have believed he was free to leave
at the time the officers followed the defendants and at the time the [429 Mass. 612] defendants stopped to talk to the officers. See
Stoute, supra. Approaching in an
unmarked cruiser, leaving the cruiser, and requesting to speak with a citizen,
without more, does not constitute a seizure.
See id. at 789, 665 N.E.2d 93
(court assumed no seizure where officer said, "hold up a minute");
Commonwealth v. Williams, 422 Mass. 111, 116‑117, 661 N.E.2d
617 (1996) (no seizure where police followed running defendant in their cruiser
as police conduct would not have communicated to the reasonable person an
attempt to capture or otherwise intrude on the defendant's freedom of
movement); Commonwealth v. Thinh Van Cao, 419 Mass.
383, 388, 644 N.E.2d 1294, cert. denied, 515 U.S. 1146, 115 S.Ct. 2588, 132
L.Ed.2d 836 (1995) (no seizure where officer approached and asked questions
about identity in unconfined public space, and did not indicate that subjects
could not terminate encounter).
[4] We disagree
with the defendant's contention that "pursuit here began when [the
officers] turned their cruiser the wrong way up a one way street with the
stated intention of stopping the two [defendants]." See
Williams, supra. The fact that the
officers turned the wrong way does not necessitate a conclusion that a
reasonable person would feel he was not free to leave. See
Commonwealth v. Wedderburn, 36 Mass.App.Ct. 558, 559‑561, 633 N.E.2d
1058 (1994) (no pursuit where officer drove unmarked cruiser across opposing
traffic lane at forty‑five degree angle at normal pace). Further, the officers' intent to stop the
defendants, absent any outward manifestation of that intent, is not relevant to
whether a reasonable person would feel he was free to leave.
We turn to
the seizure of the weapon and the subsequent arrest. At some point after the officers left the
cruiser, one of the officers patted the defendant down and removed a gun from
his clothing. The defendant correctly
asserts that the officer effectuated a search when he performed the
patfrisk. However, the defendant is
incorrect when he claims that this search was improper.
[5][6] A
patfrisk must be supported by a reasonable belief, based on specific and
articulable facts, that the defendant was armed and potentially dangerous. See
Commonwealth v. Wing Ng, 420 Mass. 236, 237‑239, 649 N.E.2d 157
(1995). The judge found that when the
officers left the cruiser, they observed that the defendants were sweating,
nervous, breathing heavily, and looking at each other and in all
directions. The defendant kept moving so
as not to allow the officers to see his right side. One of the officers saw a pronounced bulge
protruding under the defendant's shirt in the [429 Mass. 613] rear
right hip area. The officer knew that a
shooting had just occurred in the vicinity, that weapons were often concealed
in the hip area, and that they had seen the defendants at approximately 11
P.M., running in a high crime area.
These facts objectively supported a reasonable belief that the defendant
was armed and thus potentially dangerous.
See id. Thus, the patfrisk was warranted and the
evidence gathered subsequent to the search was properly admitted. (FN4)
[7] 2. Juror dismissal. On the fifth day of trial and before deliberations,
the judge informed counsel that a matter had come to his attention during
recess and that he was going to inquire of one of the jurors outside the
presence of the jury. In response to
questions, the juror stated that he had met an acquaintance on a bus and told
the acquaintance he was a juror. The
juror denied having told the acquaintance that he smoked marijuana in order to
stay awake during the proceedings. The
judge then questioned the victim's sister.
She stated that she was riding an MBTA train on the previous Friday and
that she heard the juror say that he had to smoke marijuana in order to stay
awake at trial. Over defense counsel's
objection, the judge dismissed the juror.
The defendant contends that the judge's
decision to dismiss the juror requires reversal because "there was no
legitimate basis for the Court's action."
(FN5) According to the defendant,
there was no showing in the record that the juror was unable to perform his
duty as a juror, Commonwealth v. Connor,
392 Mass. 838, 847, 467 N.E.2d 1340 (1984), and the allegation of the victim's
sister was insufficient to justify the judge's decision. The defendant, noting that the juror was the
only young black male on the jury, asserts that the dismissal caused a
"real and unique" loss which denied the defendant his right to a jury
of his choosing.
"The
court shall have the discretionary authority to dismiss a juror at any time in
the best interests of justice."
G.L. c. 234A, § 39. In making his
ruling, the judge implicitly accepted the testimony of the witness and rejected
the testimony of the juror, [429
Mass. 614] stating "what [the
juror] has denied and the other [person] has testified to causes me
concern."
[8] Both
the Commonwealth and the defendant are entitled to a sober, conscious
jury. See Commonwealth v. Keaton, 36 Mass.App.Ct. 81, 87, 628 N.E.2d 1286
(1994) (acknowledging that right to fair trial is placed in jeopardy if juror
sleeps through testimony and noting that it is incumbent on judge to ensure
that all jurors hear evidence). Where a
judge has seen and heard a witness, the judge determines credibility. If a judge, after evaluating credibility,
believes testimony that a juror is using drugs during the course of a trial,
the judge has discretion to remove that juror.
3. Prejudice from impermissible statements. According to the defendant, the prosecutor
improperly injected sympathy into the trial.
The defendant cites several alleged prejudicial errors including appeals
to sympathy in the prosecutor's opening statement, the testimony of the
victim's sister, and appeals to sympathy in the prosecutor's summation. The defendant objected to each alleged
error. (FN6)
[9] Before
determining whether prejudicial error exists, we must first ask whether an error
occurred at all. During opening
statement, the prosecutor described the fact that the victim and his sister had
talked the night of the shooting, and that the two had planned to celebrate the
sister's birthday, which was the day after the shooting. The prosecutor stated that the victim was
prevented from doing so because "two men had other plans" for the
victim that night. The defendant
objected.
[10] We
conclude that there was nothing improper about this statement. The prosecutor was "free to state in
[her] opening anything that [she] expects to be able to prove by
evidence." Commonwealth v. Hartford, 346 Mass. 482,
486, 194 N.E.2d 401 (1963), quoting
Commonwealth v. Clark, 292 Mass. 409, 410, 198 N.E. 641 (1935). Indeed, the prosecutor did attempt to elicit
testimony about the victim and his sister's plans. However, the judge sustained the defendant's
objection and precluded the line of questioning. There was no error. Id.
[11][12] [429 Mass. 615] The defendant next complains that the victim's sister was allowed
to testify, even though the victim had already been identified by three other
witnesses and the sister had no other relevant information. (FN7)
We stress that "there is no error where a member of the victim's family likely to elicit
sympathy testifies as to some relevant issue, even a relatively peripheral one
and even where another witness could have given the same information without
evoking the same level of sympathy from the jury." Commonwealth v. Santiago,
425 Mass. 491, 496‑497, 681 N.E.2d 1205 (1997), S. C., 427 Mass. 298, 693 N.E.2d 127 (1998). Here, in view of the fact that several
witnesses identified the victim prior to the sister's testimony, we doubt the
value of the sister's identification testimony.
The Commonwealth suggests that the evidence as to what the victim did
was relevant to "humanize" the proceedings. Id. at 495, 681 N.E.2d
1205. While the prosecutor may, in
opening statement or summation, "tell the jury something of the person
whose life ha[s] been lost in order to humanize the proceedings," the
testimony of a relative may not be elicited for the sole purpose of creating
sympathy.
Id. The witness must testify to something relevant. See id. We conclude, however, that any error in
calling the sister does not warrant a new trial. (FN8)
The witness's testimony was brief.
She stated that her birthday was the day after the shooting, that she
saw her brother at a store before the shooting, and that she went to the crime
scene and the hospital after the shooting.
She also testified that she identified the victim. Contrast
Santiago, supra at 496, 681 N.E.2d 1205 (witness testified about victim's
personal relationships, pregnancy, schooling, job, and recent birthday
celebration).
[13] The
defendant also complains that the prosecutor appealed to sympathy during
summation, when she stated that the victim was unable to testify because
"he's dead.... Twenty‑one
years old, standing on a street corner chatting.... And although [the victim] never set foot in
this courtroom ... he spoke to you during this trial.... That's what is important in this
case." Again, the defendant
objected. The Commonwealth [429 Mass. 616] concedes, and we agree, that this statement may have been
"excessive."
Because
the defendant objected, we consider whether, "in the context of the entire
argument and the case as a whole," the summation constituted
"prejudicial error." Id. at 500, 681 N.E.2d 1205, citing Commonwealth v. Loguidice, 420 Mass.
453, 454, 650 N.E.2d 1254 (1995); Commonwealth v. Daggett, 416 Mass. 347,
352 n. 5, 622 N.E.2d 272 (1993); Commonwealth v. Smith, 387 Mass. 900,
912, 444 N.E.2d 374 (1983). We note at
the outset that "closing argument is identified as argument, the jury
understands that, instructions from the judge inform the jury that closing
argument is not evidence, and instructions may mitigate any prejudice in the
final argument.... A certain measure of
jury sophistication in sorting out excessive claims on both sides fairly may be
assumed." Commonwealth v. Kozec, 399 Mass. 514,
517, 505 N.E.2d 519 (1987). See Commonwealth v. Wilson, 427 Mass. 336,
350, 693 N.E.2d 158 (1998); Commonwealth v. Sanna, 424 Mass. 92, 107,
674 N.E.2d 1067 (1997).
Applying
the factors set forth in Santiago, we
conclude that a new trial is not warranted.
(FN9) First, the judge issued
clear instructions, twice telling the jurors that they were to put emotion
aside. (FN10) See
Commonwealth v. Kent K., 427 Mass. 754, 761 & n. 7, 696 N.E.2d 511
(1998);
Santiago, supra at 500, 681 N.E.2d 1205. Second, and perhaps more significantly, the
jurors exhibited an ability to examine the law and the facts without regard to
the emotional pleas, in compliance with the judge's instruction. Id.
The jury acquitted the defendant of one charge and acquitted the codefendant
altogether. See Commonwealth v. Gordon, 422 Mass. 816, 831, 666 N.E.2d 122
(1996). Thus, the verdict itself is
strong evidence that the jurors were not swayed by emotion and shows that the
jurors were able to sort out the "excessive" argument. See
Kozec, supra at 517, 505 N.E.2d 519.
Finally, the case against the defendant was quite strong. (FN11)
After balancing these factors "in the context of the entire
arguments[429 Mass. 617]
[and testimony] and the case as a whole," we conclude that
"the prosecutor's improper statements [did not] 'constitute[ ] prejudicial
error.' " Commonwealth v. Wilson, 427 Mass. 336,
351, 693 N.E.2d 158 (1998), quoting
Santiago, supra at 500, 681 N.E.2d 1205.
[14] 4. Jury instructions. The defendant argues that the judge made
several errors in instructing the jury.
The defendant objected to these instructions. According to the defendant, the judge erred
by instructing the jury on the third prong of malice, as the Commonwealth's
case was predicated on a theory of deliberate premeditation. Thus, the defendant contends, a new trial is
warranted.
We
disagree. The Commonwealth presented
evidence that the defendant was a joint venturer in a deliberately premeditated
murder. "The correct instruction on
premeditation and the [verdict of murder in the first degree] by reason of
deliberate premeditation, renders inconsequential the reference in the [jury]
instruction to the third prong of malice." Commonwealth v. Hamilton,
426 Mass. 67, 75, 686 N.E.2d 975 (1997).
[15] The
defendant next argues that the judge erred in the instructions related to joint
venture liability. The judge instructed
that the Commonwealth must "prove that the defendant was present at the
scene of the crime." He then
defined that as "physically present at or near the scene of the
crime." Counsel objected, arguing
that the jury could return a verdict of guilt, based on that instruction, if he
received the gun away from the scene of the crime and was not present at the
corner where the victim was shot.
(FN12) As the defendant was not
convicted of receiving a stolen motor vehicle, the defendant contends that the
jury must have determined that the defendant was not driving the getaway
vehicle and that he was not present at the scene of the crime. Thus, the defendant concludes, there is a
strong probability that he was convicted on a legally insufficient theory of
joint venture liability. See Commonwealth v. Ortiz, 424 Mass. 853,
856, 679 N.E.2d 1007 (1997) (to convict as joint venturer where defendant not
present at [429 Mass. 618] scene of crime, Commonwealth must
produce evidence that defendant was accessory before the fact).
We
disagree. The instruction that the
defendant had to be "physically present at or near the scene of the
crime" substantially comports with language we deemed
"exemplary" in Commonwealth v.
Echavarria, 428 Mass. 593, 598‑599 n. 3, 703 N.E.2d 1137 (1998)
("agreeing to stand by or near the scene to render aid or assistance, [or]
encouragement"). The instruction
properly defined joint venture liability.
See Commonwealth v. DiBenedetto,
427 Mass. 414, 422, 693 N.E.2d 1007 (1998) ("guilt as a joint venturer
required the defendant's presence at or near the scene"). (FN13)
[16]
Finally, the defendant attacks the judge's refusal to give an instruction on
finger prints, after evidence was admitted which showed that the defendant's
palm print was found on the getaway vehicle.
He asserts that his right to a fair trial necessitated an
instruction that his palm print on a motor vehicle found in the general area
where the defendant was on that night could not be used as the sole evidence to
convict him, absent evidence that the print was made at the time of the
commission of the crime. We disagree.
The
circumstantial evidence at trial was sufficient to support an inference that
the defendant's palm print was placed on the vehicle during or immediately
after the commission of the crime.
(FN14) Further, there was no
evidence that the defendant had touched the vehicle at any other time. Thus, "[t]he trial judge properly
exercised his discretion in declining to give the requested instruction."
Commonwealth v. Wills, 398 Mass. 768, 779, 500 N.E.2d 1341
(1986). See Commonwealth v. LaCorte, 373 Mass. 700, 702 n. 1, 369 N.E.2d 1006
(1977) ("because of other circumstantial evidence in this case, the judge
might well have ruled that the defendant was not entitled to such an
instruction").
[429 Mass. 619] 5. Relief pursuant to G.L.
c. 278, § 33E. After full
consideration of the law and the evidence, we decline to exercise our power
under G.L. c. 278, § 33E, in favor of the defendant. The convictions are affirmed.
So ordered.
(FN1.) The defendant raises no claim of error
related to his conviction of unlawful possession of a firearm.
(FN2.)
The defendant was indicted for murder in the first degree, receiving a stolen
motor vehicle, unlawful possession of a firearm, receiving stolen goods,
possession of burglarious tools, unlawfully attaching motor vehicle plates, and
unlawful possession of ammunition. The
last four charges were dismissed.
(FN3.)
The defendant and the codefendant were tried together. The defendant was acquitted of the charge of
receiving a stolen motor vehicle. The
codefendant was acquitted of all charges.
(FN4.)
The officer reached for the bulge, felt the outline of a firearm, yelled to his
partner that the defendant had a gun, and removed the weapon. The defendant and the codefendant were
arrested.
(FN5.)
Another juror was dismissed a day later and the case was submitted to a jury of
less than twelve. However, the defendant
waived his right to be tried by a jury of twelve, and does not challenge that
on appeal.
(FN6.)
The defendant also describes how, during the prosecutor's summation, the mother
of the victim collapsed, cried, and said that her baby had been murdered. After she was removed, the judge instructed
that this was an emotional case but that the jurors were to "put that
outside of [their] minds." The defendant
does not argue that the outburst was prejudicial. Rather, he appears to raise the outburst in
order to argue that the subsequent instruction was insufficient to cure the
prosecutor's pleas for sympathy.
(FN7.)
Prior to trial, the defendant made a motion in limine to prevent family members
of the victim from testifying. The judge
reserved action on the motion, and the defendant renewed the motion when two
family members cried out during another witness's testimony. On the fifth day of trial, the Commonwealth
called the victim's sister. Defense
counsel objected, but the victim's sister was allowed to take the stand.
(FN8.)
We note that Commonwealth v. Santiago,
425 Mass. 491, 681 N.E.2d 1205 (1997), S.
C., 427 Mass. 298, 693 N.E.2d 127 (1998), was decided after the trial in
this case.
(FN9.)
While Commonwealth v. Santiago, supra,
was decided after the trial in this case, the factors to be considered were all
set forth in cases before this trial.
(FN10.) After a family member's outburst, the
judge instructed that, although people may get emotional, the jurors were to
"put that outside of [their] mind[s] and ... do what [they] are here for
under a controlled approach." The
judge later instructed that the jurors were to decide the case "without
prejudice, without fear and without favor, putting aside any emotional
dimensions that might be attached to this case."
(FN11.) The defendant was caught running with
the murder weapon in close physical and temporal proximity to the crime
scene. The defendant was identified as
being in the area earlier that evening.
The defendant's palm prints were found on the roof and door of the
getaway vehicle. The defendant admitted
to possessing the murder weapon when he spoke with police officers earlier on
the night of the murder, and he admitted being in the area. The defendant shouted "f‑‑‑
them Humboldt [Street, the place of the shootings] bitches. They killed my cousin." He also shouted to his codefendant,
"Hey, Jeff, he's R.P. [rest in
peace]."
(FN12.)
According to the defendant, the judge should have instructed that the defendant
could not be convicted unless he was "present at the shooting of the
victim."
(FN13.) The fact that the defendant was not
convicted of receiving a stolen motor vehicle is not conclusive on the issue
whether the defendant was the driver of the vehicle used for getaway
purposes. For example, the jurors could
have concluded that the defendant did not know the vehicle was stolen or that he
was the thief.
(FN14.) The codefendant, identified as the
shooter, was seen getting into the vehicle, a Mazda, immediately after the
shooting. The vehicle, driven by
someone, sped off. The defendant was
found with the codefendant minutes later, running, within several blocks of the
shooting. The vehicle was found nearby
with the engine still warm. The palm
print was consistent with a driver getting in and out of a vehicle. The defendant was carrying the murder weapon
and a Mazda key.