Opinion
11-P-1663
02-29-2016
COMMONWEALTH v. KENNETH FAULK.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Kenneth Faulk, was charged with murder in the first degree and carrying a firearm without a license, in connection with the shooting death of Derrick Wilson. Following a Superior Court jury trial, the defendant was convicted of the lesser included offense of murder in the second degree, and of the firearms charge. This is his consolidated appeal from his convictions and from an order denying his motion for a new trial. We affirm.
The trial judge having retired, the motion for a new trial was heard and decided by a different judge. The issues raised in the motion for a new trial overlap those raised on direct appeal and are not separately set forth.
Facts. The essentials of the Commonwealth's case may be summarized as follows. As shown by videotape surveillance footage obtained from a camera system installed at the scene, on April 30, 2007, the defendant entered 33 Dover Street, Brockton, with the victim, Derrick Wilson, right behind him. The defendant stopped, turned, and appeared to speak to the victim. The victim then followed the defendant up a set of stairs. Two minutes later, the victim slid feet first down the stairs, and lay at the foot of the stairs, struggling. Within seconds, the defendant came down the stairs, stepped over the victim, and left the building. A few minutes later, the defendant returned with a female companion, and kicked the victim's foot and his head.
According to the medical examiner, the victim died from a gunshot wound to the chest. It appears from the video footage that no one entered or left through the second-floor door at the time of the incident. There was evidence that the third floor of the building was locked. When the defendant initially spoke with police, he told them that he had not entered the building with the victim. After being shown still images from the video, he acknowledged his presence but claimed not to know if he had heard gunshots, or if there had been any kind of fight or struggle on the stairs. He said that he kicked the victim to wake him up.
A cigarette butt at the second-floor landing was linked to the defendant by deoxyribonucleic acid (DNA) evidence, and a projectile found in the wall at the top of the second-floor landing was linked to the victim by DNA evidence. However, no weapon or shell casings were recovered. Strands of "Mardis Gras" beads worn by the victim were broken, and beads were found scattered -- including one at the top of the landing -- suggesting a struggle.
Discussion. 1. Suicide defense. The defendant's theory of defense was that the victim had committed suicide. In support of that defense, the defendant was permitted to introduce a limited number of records showing that at or around the time of the victim's death he was suffering from mental illness. On appeal, the defendant renews two claims asserted in his motion for a new trial: (1) by not allowing the introduction of more of the victim's mental health records, the judge committed error and violated the defendant's right to present evidence in his defense, and (2) because the defense did not know about the victim's mental illness until the trial was underway, his expert, forensic psychologist Jodie Shapiro, was unable to undertake a complete review of the victim's medical records and could not give a full opinion as to the victim's mental state.
There is no basis to infer that the Commonwealth was to blame in this regard.
The defendant does not contend, however, that his trial counsel rendered ineffective assistance.
Neither claim has merit. Despite the improbability of suicide given the circumstances of the victim's death, the trial judge allowed the defendant to adduce evidence in support of this theory. Limiting that evidence to records close in time to the date of death was well within the judge's discretion. See generally L.L. v. Commonwealth, 470 Mass. 169, 185 n.27(2014). Furthermore, neither the exclusion of additional mental health records nor the lack of time for Dr. Shapiro to develop her opinion prejudiced the defendant. Even after Dr. Shapiro had the opportunity to review the victim's complete records thoroughly in preparing an affidavit supporting the defendant's new trial motion, she could go no farther than to state that "it is not unreasonable to hypothesize that the decedent may have had a wish to harm or kill himself around the time of the alleged incident." This assessment is not, as the defendant contends, powerful evidence in support of his theory of suicide. It amounts to no more than conjecture.
2. Victim's state of mind. The defendant also argues that the trial judge erred by excluding hearsay testimony from a police officer who was told by the victim's former girl friend and her roommate that the victim and the former girl friend had argued about ninety minutes before he died. However, none of the defendant's three justifications for the admission of the officer's testimony has merit. The fact that the statements were relevant to the victim's state of mind does not cure the hearsay problem. The foundational requirements for the admission of the hearsay statements as excited utterances were not established. See Commonwealth v. Simon, 456 Mass. 280, 296, cert. denied, 131 S. Ct. 181 (2010). And the residual exception to the hearsay rule recognized in Fed. R. Evid. 807 is unavailing, as Massachusetts has not adopted this rule. See Mass. G. Evid. § 802 (2015); Commonwealth v. Pope, 397 Mass. 275, 281-282 (1986). The judge did not abuse his discretion in excluding the testimony.
The defendant claims that this evidence would have aided his suicide defense because the victim had a documented history of becoming depressed after arguments with his former girl friend. Both women were unavailable at trial.
3. Prosecutor's closing argument. In closing, the prosecutor commented that the defendant's suicide theory was "ridiculous," "outrageous," and "the height of desperation." He called the victim "pathetic," and said that the defendant stepped over him as if he were "no more than an insect on the floor," and left him to "bleed out, vomit on himself, and die in a dirty hallway." The defendant argues that these and other comments in the same vein improperly disparaged the defendant and his theory of defense, and unnecessarily appealed to the sympathies of the jury. The Commonwealth, for its part, argues that the prosecutor was entitled to ask the jury to reject a defense theory that defied logic, and to argue the graphic facts of the case in support of the first degree murder theory of extreme atrocity and cruelty.
We need not dwell on whether the prosecutor may be said to have overreached because, even if he did, the defendant is not entitled to appellate relief. Defense counsel did not object to the comments in question; accordingly, we review only for a substantial risk of a miscarriage of justice. In view of the strength of the Commonwealth's evidence, the judge's pertinent instructions (i.e., that closing arguments were not evidence and that the jury must decide the case only on the evidence and not to be swayed by prejudice or sympathy), and the jury's rejection of the charge of murder in the first degree, we discern no such risk. See, e.g., Commonwealth v. McLaughlin, 431 Mass. 506, 511 (2000); Commonwealth v. Boyajian, 68 Mass. App. Ct. 866, 869 (2007).
4. Motion to suppress. The day after the shooting, the defendant voluntarily went to the police station for an interview. Before being questioned, he was read his Miranda rights. He asked, "What does this mean? Like am I getting arrested? Like, can my lawyer speak or. . . ." An officer interjected that the defendant was not under arrest. The defendant then signed the Miranda waiver form, and the interview proceeded.
The defendant later moved to suppress the statements made at the interview. Relevant here, he contended that his mention of a lawyer was an invocation of his right to counsel. He reiterates that argument on appeal, claiming that the motion judge erred in concluding otherwise. We disagree. The motion judge was entitled to conclude on the evidence before him (including the videotape of the interview) that the defendant did not make an unequivocal request for an attorney. The motion to suppress properly was denied on that basis. See generally Commonwealth v. Corriveau, 396 Mass. 319, 331 (1985); Commonwealth v. Obershaw, 435 Mass. 794, 800-801 (2002).
5. Moffett arguments. We have considered and reject the arguments submitted by the defendant in a brief filed pursuant to Commonwealth v. Moffett, 383 Mass. 201, 207-209 (1981). The defendant has not shown that there was a systematic exclusion of minorities from the jury selection process. See Berghuis v. Smith, 559 U.S. 314, 327 (2010). Furthermore, the right to a jury that is representative of a cross section of the community does not require that every jury have constituents of every group in the population, because that would not be feasible. Commonwealth v. Soares, 377 Mass. 461, 481-482, cert. denied, 444 U.S. 881 (1979).
There was no error in the disqualification of two jurors due to a language barrier and a third juror because the prosecutor had prosecuted the juror's three sons. These exclusions do not reflect a pattern of excluding members of a discrete group, and the defendant has not shown that it is likely that these jurors were excluded because of race. See Commonwealth v. Garrey, 436 Mass. 422, 428 (2002).
The judge could conclude in his discretion that, by waiting to raise the issue until the jury were deliberating, the defendant had waived his claim that a juror had been asleep during the trial. Compare other waiver cases, i.e., Commonwealth v. Rowe, 257 Mass. 172, 174 (1926) (waiver of right to be tried by jury); Commonwealth v. Martin, 425 Mass. 718, 720-721 (1997) (waiver right to assistance of counsel); Commonwealth v. Beliard, 443 Mass. 79, 89 (2004) (waiver of right to confront witnesses). Even if the defendant had not waived his claim by waiting until the jury were deliberating, in view of the "tentativeness of the information that the juror was sleeping," the judge's decision not to conduct a voir dire was reasonable. Commonwealth v. Beneche, 458 Mass. 61, 79 (2010). See Commonwealth v. Fritz, 472 Mass. 341, 353-354 (2015). Trial counsel, who had not made any personal observations of a sleeping juror, was not ineffective for failing to press the issue further or to ask for a mistrial.
Neither the judge nor the court officers had observed the juror sleeping.
Finally, there is no merit to the defendant's argument that the judge's Bowden instruction was deficient. See Commonwealth v. Bowden, 379 Mass. 472, 486 (1980).
Subsidiary points argued in the defendant's principal brief and his Moffett brief have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Cohen, Grainger & Wolohojian, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 29, 2016.