Opinion
18-P-1381
02-05-2020
COMMONWEALTH v. Erving CRUZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant was convicted of murder in the second degree in connection with a stabbing death in Taunton. He filed a timely notice of appeal with this court. He later moved for a new trial and requested an evidentiary hearing on his new trial motion. This court stayed the defendant's direct appeal pending resolution of his new trial motion. A Superior Court judge denied the defendant's motion for a new trial without an evidentiary hearing. The defendant filed a timely appeal, which was consolidated with his direct appeal. We affirm the defendant's conviction, and the orders denying the defendant's motion for new trial and request for an evidentiary hearing.
Discussion. The defendant makes three claims on appeal. First, he contends that newly discovered and newly available evidence negates the theory that he was a joint venturer in the stabbing, warranting an evidentiary hearing and new trial. Second, he argues that the Commonwealth's closing argument at trial improperly disparaged his defense counsel, and included unsubstantiated statements, constituting prejudicial error. Third, he claims that the Commonwealth's failure to redact a statement ruled inadmissible from a videotape recording played at trial was prejudicial error.
1. Motion for new trial. The defendant argues in his brief that "[t]he motion court erred in denying [his] new trial motion where newly discovered and newly available witnesses demonstrated that the Commonwealth's key witness [Jared Brown Garnham (Jared) ] ... actually himself unilaterally committed the stabbing, showing that justice may not have been done." The defendant further argues that "[a]s the Commonwealth's case was far from overwhelming and heavily relied on Jared's testimony ... it was error for the court to deny the motion" without an evidentiary hearing. We disagree.
"Where the defendant's motion for a new trial raises an issue ‘of constitutional dimension ... we are not bound by an abuse of discretion standard, but rather examine the issue independently.’ " Commonwealth v. Drayton, 473 Mass. 23, 32 (2015), quoting Commonwealth v. Conkey, 443 Mass. 60, 66-67 (2004). The defendant's motion raises an issue of constitutional dimension because his proffered newly discovered and newly available evidence pertains to a third-party culprit defense. See Drayton, supra at 35 ("the right to defend against criminal charges by presenting third-party culprit evidence is of a constitutional dimension" [citation omitted] ).
"[A] judge may rule on the issue or issues presented by such motion[s for a new trial] on the basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised by the motion or affidavits." Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). "Whether a substantial issue has been raised depends on the seriousness of the issue and the adequacy of the defendant's showing." Commonwealth v. Britto, 433 Mass. 596, 608 (2001), citing Commonwealth v. Stewart, 383 Mass. 253, 257–258 (1981). "A judge may also consider whether holding a hearing will add anything to the information that has been presented in the motion and affidavits." Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004), citing Commonwealth v. DeVincent, 421 Mass. 64, 68 (1995). "If the theory of the motion, as presented by the papers, is not credible or not persuasive, holding an evidentiary hearing to have the witnesses repeat the same evidence ... will accomplish nothing." Goodreau, supra at 348-349 (denying motion for evidentiary hearing on motion for new trial).
Like the motion judge, we conclude that, even if all of the proffered new evidence were to be credited, that evidence raises no substantial issue. See Goodreau, 442 Mass. at 348-49. The question is whether "there is a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial." Commonwealth v. Sullivan, 469 Mass. 340, 350 (2014), citing Commonwealth v. Grace, 397 Mass. 303, 306 (1986). In other words, we ask "whether the evidence probably would have been a ‘real factor’ in the jury's deliberations." Sullivan, supra at 350-351, quoting Grace, supra.
In support of his new trial motion, the defendant submitted evidence of incriminating statements Jared had made after the defendant's trial. The defendant also submitted evidence of incriminating statements Jared had made to a witness who was unavailable at the time of the defendant's trial. However, at trial, the defendant had already presented a third-party culprit theory implicating Jared, including hearsay evidence that Jared had confessed to participation in the crime. The defendant's new evidence thus served only marginally to bolster the defendant's apparently unpersuasive trial theory. Further, to the extent the defendant's new evidence impeached Jared's trial testimony, the new evidence was not a compelling ground for a new trial. See Commonwealth v. Cowels, 470 Mass. 607, 621 (2015) (new evidence that merely impeaches witness's testimony will rarely form basis for new trial). Additionally, none of the defendant's new evidence directly exculpated him. The new evidence may support, at least to an extent, the inference that Jared stabbed the victim. But to exculpate the defendant, a fact finder must draw the further inference that the defendant was not a joint venturer in the killing alongside Jared or others. In short, the defendant's new evidence only went so far.
At trial, the jury viewed surveillance footage of the defendant chasing the victim toward the site of the stabbing, while Jared remained behind. A witness testified to seeing a man who matched the description of the defendant, but not Jared, chase the victim with a knife. Another witness testified that the defendant not only admitted to stabbing the victim, but intended to blame someone named "J" for the stabbing, who was also present that night and who was dressed similarly to the defendant. Moreover, the jury viewed a videotape recording of the defendant's police interview in which he repeatedly changed his story; eventually admitted both that he had chased the victim, and was in the backyard where the victim was stabbed; repeatedly denied knowing who Jared was; and never suggested that Jared or anyone matching Jared's description had chased the victim.
The case against the defendant as a joint venturer was strong. We conclude that there was no substantial risk that the jury would have reached a different result had they heard the defendant's new evidence at trial. See Sullivan, 469 Mass. at 350, citing Grace, 397 Mass. at 306. The motion for a new trial was properly denied without a hearing.
2. Prosecutor's closing argument. The defendant contends that inappropriate remarks in the prosecutor's summation deprived him of a fair trial. We review the remarks "in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009).
The defendant first argues that the prosecutor improperly disparaged defense counsel by referring to him as "a very capable lawyer" who was "so skilled" and who had made an "effort to confuse [the jury]" about who committed the murder. Yet, prosecutors are entitled to comment on defense attorneys' skill and trial strategy, and even to suggest that the jurors may be led astray, insofar as may be necessary to put the jury on notice to evaluate defense counsel's statements carefully. See Commonwealth v. Raposa, 440 Mass. 684, 697 (2004) (statement that defense counsel could "spin gold from straw" not improper). See also Commonwealth v. Jackson, 428 Mass. 455, 463-464 (1998) (statement that defense counsel was "clever lawyer" who used "smoke screen" permitted). To the extent the prosecutor's remarks approached error, the judge gave a curative instruction, to which the defendant did not object, regarding the propriety of vigorous defense opposition to unfavorable Commonwealth evidence. This was sufficient to cure any possible prejudice. See Commonwealth v. Daggett, 416 Mass. 347, 355 (1993).
The defendant next takes issue with the prosecutor's statements that defense counsel's analysis of the evidence was "unfair" to the witnesses and the Commonwealth. Yet the prosecutor was entitled to address the defense's trial strategy and characterization of witness testimony. See Commonwealth v. Cohen, 412 Mass. 375, 388 (1992). Here, the prosecutor's remarks were limited to a critique of defense counsel's expectations for eyewitnesses and were not repeated to the point of impropriety. Compare Commonwealth v. Scesny, 472 Mass. 185, 203-204 (2015). To the extent these statements resemble error, the trial judge's instruction regarding the propriety of vigorous opposition to unfavorable evidence cured any potential prejudice. See Daggett, 416 Mass. at 355.
The defendant also asserts that the prosecutor misstated evidence in closing by suggesting that "[of thirteen] stab wounds, the one in the forehead, came from [the defendant]." The defendant argues that because one particular witness, Jared, did not connect the stab wound to the defendant, the prosecutor's statement was not based on the evidence. However, the prosecutor did not attribute his statement to a single witness.
An amalgamation of witness testimony does in fact give rise to the inference suggested by the prosecutor. The medical examiner testified that the victim had twelve stab wounds on his body and one distinct incised wound on his head, thereby allowing the inference that one assailant inflicted wounds to the chest while a different assailant inflicted the wound to the head. Additionally, one witness testified that the defendant and another assailant chased the victim with knives in their hands. Jared testified that the victim fell to the ground when the defendant and another assailant hit him. Another witness testified that the defendant admitted stabbing the victim upon catching up with him. The sum of the evidence at trial allowed a reasonable inference that the defendant, upon catching up with the victim, hit the victim in the head with a knife, knocking the victim to the ground. See Commonwealth v. Ahern, 96 Mass. App. Ct. 197, 202 (2019), citing Commonwealth v. Kozec, 399 Mass. 514, 516 (1987) (in closing argument counsel may argue facts in evidence and reasonable inferences therefrom). Because the evidence supported the prosecutor's statement, there was no error.
As a result of the medical examiner's unavailability at trial, a videotape recording of her deposition testimony was shown to the jury.
3. Failure to redact inadmissible statement. Finally, the defendant argues that prejudicial error resulted when the Commonwealth failed to redact a statement previously ruled inadmissible from a videotape recording that was played for the jury at trial. The jury heard the statement as part of the videotape recording of the defendant's police interview. Specifically, the statement consisted of a detective telling the defendant that she had an independent witness who placed the defendant at the scene of the murder and who heard the defendant say, "Yeah, I got him," referring to the victim. The trial judge ruled the detective's statement inadmissible.
At trial, both parties acknowledged that playing the previously excluded statement was unintentional, and defense counsel did not move for a mistrial. After the inadmissible portion of the videotape recording was inadvertently played, the trial judge immediately issued a strong instruction to the jury to "completely disregard every word [the jury] just heard." The judge then dismissed the jury and discussed the inadmissible portion of the videotape recording with both parties, requesting the parties' approval of additional curative instructions. Defense counsel had an opportunity to confer with the defendant and to suggest wording for a further curative instruction. When the jury returned, the trial judge gave the jury another strong curative instruction.
The judge further instructed: "And I can't emphasize that more strongly than to say that. I expect the jurors to follow my strong, vigorous, contempora[neous] remarks."
"Jurors, when we broke, the video played a statement made by a person who was interviewing [the defendant]. When that statement was made and it referred to words connected to this case, I immediately interjected myself and forcefully and repeatedly told you to erase it. And I want to repeat it in this sense: I've told you throughout that the words of someone who is asking the questions can never be used for the truth, are only used for the purpose of getting an understanding of the answer. And it's my responsibility to make sure that this case is one that honors the rule of law. Those words I have previously said have no place in this proceeding, cannot be considered by this jury, and I simply repeat and know this jury will follow my instructions that that's what you'll do. You erase consciously those words and you think about it in this [way] now: There's going to be a deliberation. During that deliberation, don't ever let those words come out. Don't ever subconsciously think about them. They're out. I think we've said enough."
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Notwithstanding the forceful curative instructions, to which the defendant did not object, the defendant contends that the prejudice was not cured. He argues that the inadmissible statement "was the only information before the jury from which an inference might be drawn that [the defendant] himself stabbed the victim." However, as discussed above, a witness testified to seeing the defendant chase the victim with a knife. Another witness testified that the defendant admitted stabbing the victim several times. These witnesses offered the jury an equal, if not better, opportunity to draw the inference that the defendant stabbed the victim. In light of the other evidence in the case on the same point, as well as the strong and repeated curative instructions, which satisfied all parties at the time, "we can say with confidence that it ‘did not influence the jury, or had but very slight effect.’ " Commonwealth v. Harris, 481 Mass. 767, 777 (2019), quoting Commonwealth v. Brown, 456 Mass. 708, 725 (2010).
Judgment affirmed.
Orders denying motion for new trial and request for evidentiary hearing affirmed.