Opinion
13-P-843
12-05-2014
COMMONWEALTH v. HOLDEN H., a juvenile.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The juvenile appeals from his convictions of three counts of armed assault with intent to kill, assault and battery by means of a dangerous weapon, assault and battery, unlawful possession of a firearm, carrying a loaded firearm, discharging a firearm within five hundred feet of a building, and adjudications of delinquency. The juvenile asserts numerous errors which we address seriatim, referring to the facts material to each issue as the jury could have found them.
Testimony of gang affiliation. The juvenile asserts that it was prejudicial error for the judge to allow the arresting officer to testify, over the juvenile's objection, about the juvenile's gang affiliation. The judge denied the juvenile's pretrial motion in limine to exclude all such references. The conclusory assertion of error in the juvenile's brief does not rise to the level of appellate argument under Mass.R.A.P.16(a)(4), as amended, 367 Mass. 921 (1975). The juvenile did not produce the motion in limine as part of his record appendix as required by rule 16(a)(6), and does not cite to any authority that delineates the limitations on the admission of evidence of gang affiliation. See Commonwealth v. Bradshaw, 385 Mass. 244, 279 (1982).
Even were the argument properly presented, we would not agree with the juvenile's assertion of error, which is based on a view of the evidence that is limited to one sole motive for the attack, that of a love triangle. There was also evidence that the juvenile was defending what he considered neighborhood turf. It was thus well within the judge's exercise of discretion to determine that the probative nature of the limited reference to gang membership outweighed any prejudice. See Commonwealth v. Correa, 437 Mass. 197, 201 (2002), citing Commonwealth v. Maldonado, 429 Mass. 502, 504-505 (1999). Given the other strong evidence in the case, one isolated reference made to the jury "did not influence the jury, or had but very slight effect." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).
The evidence was that several weeks before the shooting, the juvenile said, "You're from the Hill. You're not even supposed to be down here," to one of the three girls who was attacked. And immediately before the fight the juvenile said, "I told you not to come back around here again," to another one of the victims.
All other gang references to which the juvenile points were elicited as part of the detective's background or to provide context to the ongoing investigation which led to the juvenile's arrest. For example, on direct examination, Officer Femino explained what a Field Interrogation and Observation (FIO) form is and that he was familiar with the juvenile from conducting previous FIO's. Specially, the testimony was as follows:
Q: "[W]hat . . . type of information is typically put on the FIO report?"
A: "The reason why you stopped the individual and spoke with them, whether it be a gang investigation or a drug investigation."
Q: "Or, just some interaction which is innocuous, correct?
A: "Correct. It could be a mere encounter." Furthermore, these and other references, including an FIO earlier on the day of the juvenile's arrest, for which no reason was specified, were not objected to at trial. Even were we to discern an error, there was no substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563564 (1967).
Juror voir dire regarding the juvenile's nickname. The juvenile asserts that the judge should have declared a mistrial, sua sponte, once it came to her attention that jurors discovered the juvenile's nickname during deliberations. Before trial, the judge granted the juvenile's motion in limine to exclude all references to his gang nickname. The Commonwealth scrupulously adhered to this evidentiary ruling during trial. After the jury delivered its verdict, the judge was informed that the juvenile's nickname appeared in one of the photos properly admitted in evidence and given to the jury to examine during deliberations. The judge conducted a voir dire of each juror and asked each the same question, namely whether he or she had learned the juvenile's nickname during deliberations. To those who responded in the affirmative, the judge asked whether that knowledge had influenced the juror's determination of guilt or innocence. Nine of the twelve jurors indicated they learned of the juvenile's nickname during deliberations, but said the knowledge did not influence their verdict in any way. Both parties were satisfied with the venire and neither party requested that the judge ask any additional questions. Defense counsel did not move for a mistrial, and indicated at sentencing that "[jurors' knowledge of the nickname] did not interfere with the administration of justice in anyway [sic]."
The parties have framed this issue as one that involves the introduction of extraneous material into the jury's deliberations and we address it in that posture. We review findings on a motion for postverdict inquiry regarding extraneous information for clear error. See Commonwealth v. Bright, 463 Mass. 421, 443 (2012). Here, however, the juvenile made no motion for postverdict inquiry, see Commonwealth v. Kincaid, 444 Mass. 381,386 (2005), so on her own initiative, the judge prudently inquired of the jurors whether they had been exposed to the juvenile's nickname and, if so, whether their vote had been influenced thereby. Thus, in the absence of a motion by the juvenile, the judge employed the voir dire procedure applicable to a mid-trial evaluation of the harm occasioned by the introduction of inadmissible or extraneous material. This was technically error, since it did not strictly follow the procedure outlined in Kincaid, supra, though we conclude that under these circumstances it was a sensible course. See Commonwealth v. Fidler, 377 Mass. 192, 196-198, 201 (1979). Our review of the error, to which there was not only no objection, but appreciative endorsement voiced by the defense, is for a substantial risk of miscarriage of justice. We perceive no such risk; the nine jurors who had become aware of the juvenile's nickname during deliberations were unanimous in declaring it had not affected their votes. Had the posttrial procedure prescribed by Fidler and Kincaid been followed, it is clear that the Commonwealth would have sustained its burden to demonstrate a lack of prejudice.
The juvenile's burden in bringing a motion for a postverdict inquiry is normally to demonstrate that extraneous material was introduced to the jury. That fact was, however, already demonstrated to the judge in this case, and is not in dispute. Accordingly, the burden then shifted to the Commonwealth to demonstrate an absence of harm beyond a reasonable doubt. See Kincaid, supra at 386.
"Where jurors "may have been exposed . . . to material that 'goes beyond the record and raises a serious question of possible prejudice,' [the judge] should conduct a voir dire of jurors to ascertain the extent of their exposure to the extraneous material and to assess its prejudicial effect. . . . 'Whether to declare a mistrial is within the trial judge's discretion.'" Commonwealth v. Correa 437 Mass. at 200, quoting from Commonwealth v. Maldonado, 429 Mass. at 506.
The juvenile suggests on appeal that the effect of the references to gang membership rendered the introduction of the juvenile's nickname into the jury deliberations presumptively prejudicial. However, the jury members clearly testified that their verdict was not influenced by the nickname at a point in time after they had already heard about gang membership.
Prosecutor's closing argument. The juvenile asserts numerous errors in the prosecutor's closing argument. Defense counsel made no objection to the closing argument; therefore, we review the juvenile's claims for a substantial risk of a miscarriage of justice. See Commonwealth v. Guy, 441 Mass. 96, 109 (2004).
First, the juvenile claims that the prosecutor improperly vouched for the truthfulness of the two witnesses who positively identified the juvenile. "The credibility of witnesses is obviously a proper subject of comment." Commonwealth v. Murchison, 418 Mass. 58, 60 (1994). "Improper vouching occurs if 'an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.'" Commonwealth v. Kee, 449 Mass. 550, 560 (2007), quoting from Commonwealth v. Ortega, 441 Mass. 170, 181 (2004). The prosecutor's comments were rooted in the evidence presented to the jury of the witness's 911 call and were fair inferences from that evidence.
Second, the juvenile claims that the prosecutor misstated the facts regarding the juvenile's previous relationship with one of the victims. The prosecutor is entitled to relay the facts, and fair inferences therefrom, to the jury. See Commonwealth v. Tassinari, 466 Mass. 340, 355 (2013). The witness testified that the juvenile had been harassing her, and that the juvenile spit on her and continued to harass her and "put his hands on [her]." The prosecutor's statements were accurate descriptions of the testimony elicited at trial.
The juvenile also asserts that the prosecutor misstated that the altercation may have been the result of a "love triangle gone sour." However, the juvenile does not provide a reference to the trial transcript, and the court cannot find any such reference in the prosecutor's closing argument. As such, we do not address this contention. We note as well that on appeal, the juvenile himself relied on the "love triangle" evidence to argue that the references to gang membership were more prejudicial than probative.
Finally, the juvenile claims that the prosecutor improperly discussed the motive in the case. We do not agree. The prosecutor appropriately informed the jury that the Commonwealth was not obligated to establish motive as an element of the offense. In that context he also suggested that motive was difficult to ascertain. We review a prosecutor's remarks "in light of the 'entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial.'" Ibid., quoting from Commonwealth v. Ortiz, 463 Mass. 402, 415 (2012). We consider closing arguments in their entirety, and do not separate particular remarks from their context. See Commonwealth v. Caswell, 85 Mass. App. Ct. 463, 473-474 (2014). The comments were designed to show the jury both that the Commonwealth did not have the burden to prove motive and that motive is sometimes unknowable. As such, the comments did not create a substantial risk of a miscarriage of justice.
Eyewitness confidence. The juvenile asserts that the judge should have granted the juvenile's motion in limine to exclude testimony about each eyewitness's confidence in her identification. The juvenile properly objected to the testimony that each eyewitness was "one hundred percent sure" of her identification of the juvenile. As such, the claim is properly preserved for review and, as an evidentiary matter, is reviewed for an abuse of discretion. Eyewitness confidence is a proper line of inquiry. See Commonwealth v. Cruz, 445 Mass. 589, 595-596 (2005); Commonwealth v. Cowans, 52 Mass. App. Ct. 811, 814 (2001). The judge did not abuse her discretion in denying the motion in limine and allowing the testimony as to eyewitness confidence.
Judgments affirmed.
Adjudications of delinquency affirmed.
By the Court (Grainger, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 5, 2014.