Opinion
15-P-30
07-24-2017
COMMONWEALTH v. Brian KELLY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in Superior Court, the defendant, Brian Kelly, was found guilty on several firearms-related charges. His motion for a new trial was subsequently denied. He appeals, claiming that his trial counsel was ineffective, that he was prejudiced by the admission of improper evidence, and that it was error to allow an uncharged offense to be used as the underlying felony for one of the firearms charges. We affirm.
Unlawful possession of a firearm, unlawful possession of a loaded firearm, assault with a dangerous weapon, and possession of a firearm with a defaced serial number during the commission of a felony. A nolle prosequi was entered on one count of being an armed career criminal.
We consolidated the defendant's direct appeal with his appeal from the denial of his motion for new trial.
Background. On May 27, 2011, the defendant and his girl friend, Renee Courtois, were involved in an argument with a group of people outside a home in Lynn. Returning to a barbecue from a nearby convenience store, Antonio Pacheco, Jeffrey Robles, and Melissa Duran came across the argument, leading to a harsh exchange of words between Pacheco's group, the defendant, and Courtois. As a result, Pacheco was stabbed. After the stabbing, Robles and Pacheco tried to leave, with the defendant and Courtois following. Meanwhile, Duran called the police. During their retreat, Robles and Pacheco came across the defendant and Courtois once again, at which time the defendant pointed a gun at the pair. Upon hearing police sirens, the defendant threw the gun into a nearby yard.
Once police arrived, they detained the defendant and Courtois. Robles and Jerron Johnson, a witness to the events, then identified the defendant as the person who had been brandishing a gun. The police took the defendant into custody, and recovered a gun in the area where the defendant had pointed it.
At trial, Duran stated that the defendant had slashed at Pacheco with a knife, while Robles stated that Courtois was the stabber. Pacheco testified that he "blacked out" at 15 Shepard Street on the way back to the barbecue, coming to his senses shortly before the police arrived only to realize he had been stabbed. Johnson testified that he did not witness the incident and that the statements he made at the scene had merely been reiterations of what others had said.
Prior to the defendant's trial, Courtois pleaded guilty to one count of assault and battery by means of a dangerous weapon.
Discussion. 1. Ineffective assistance of counsel. The defendant argues that his trial counsel was ineffective for not impeaching Pacheco with evidence of recent criminal charges and for failing to call Suzanne Frederick as a witness. We disagree.
When attempting to establish a claim of ineffective assistance of counsel, a defendant "bears the burden of proving entitlement to a new trial by showing that the behavior of counsel fell below that of an ordinary, fallible lawyer and that such failing ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ " Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974).
a. Failure to impeach a witness. Some two months before the incident, Pacheco had been charged with firearms violations in the District Court. The defendant's trial counsel was aware of these charges and informed the judge that he was considering impeaching Pacheco with them. However, after Pacheco testified that he remembered nothing about the altercation, trial counsel explicitly told the judge that he had made a tactical decision not to impeach Pacheco with the firearms charges.
Trial counsel stated to the judge:
"I know we had a lengthy discussion about Mr. Pacheco's criminal record and my use or nonuse. I've tactically decided not to use it at this particular point. I just want that on the record."
"In general, failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance." Commonwealth v. Garvin, 456 Mass. 778, 791-792 (2010), quoting from Commonwealth v. Bart B., 424 Mass. 911, 916 (1997). Further, "[a]n attorney's tactical decision amounts to ineffective assistance of counsel only if it was manifestly unreasonable when made." Commonwealth v. Hudson, 446 Mass. 709, 716 (2006), quoting from Commonwealth v. Martin, 427 Mass. 816, 822 (1998). We cannot say that the tactical decision not to impeach Pacheco was manifestly unreasonable. As the motion judge (who was also the trial judge) found, Pacheco's testimony was likely beneficial to the defendant. Pacheco's inability to remember the altercation prevented him from implicating the defendant in any of the crimes. It was properly within trial counsel's discretion to determine whether impeachment of Pacheco would be in the defendant's best interests. See Commonwealth v. Knight, 437 Mass. 487, 501-503 (2002).
b. Failure to call a witness. According to the police report, when Lynn police Sergeant Richard Donnelly arrived at the scene he was approached by Suzanne Frederick, who told him that she was one of the residents of the home where the altercation had occurred, and that she had seen the entire altercation through her second floor window. Frederick stated that she observed "an extremely big and husky white male" and a white female arguing with people in front of her home. She saw the pair engage Pacheco in conversation, and then watched as the white male swiped at Pacheco with a knife. Both the white male and female then fled. Although both the defendant and the Commonwealth indicated that they might call Frederick as a witness at the trial, neither party did so.
The defendant now claims that failing to call Frederick amounted to ineffective assistance of counsel. Appellate counsel submitted an affidavit in support of the motion for new trial stating that he had met with Frederick to discuss what her testimony at trial would have been. According to the affidavit, Frederick would have stated that she never saw a gun in the white male's possession while she watched the scene outside her window.
The pertinent part of the affidavit reads:
"[Frederick] told me that she lived on the second floor of the home where the encounter took place.... She watched the incident from her window. During the incident, she saw a white male and female arguing with some other people in front of her house. She never saw the white male with a gun during the entire encounter. At some point in time she heard someone yell ‘gun’—she then backed away from the window so that she would not get shot."
Merely showing that trial counsel could have called additional witnesses is not sufficient to establish an ineffective assistance of counsel claim. Commonwealth v. Ortega, 441 Mass. 170, 178 (2004). "To prevail, the defendant must show that the purported testimony would have been relevant or helpful." Ibid., citing Commonwealth v. Beauchamp, 49 Mass. App. Ct. 591, 609-610 & n.23 (2000).
At trial, after the judge asked about the possibility of Frederick testifying, trial counsel explicitly stated that his decision not to call her as a witness was tactical. This decision was not manifestly unreasonable, as Frederick's statements would not have been relevant or helpful to the defendant's case. According to the police report, Frederick saw a man matching the description of the defendant swipe a knife at Pacheco. This statement would have supported the uncharged underlying felony for the defaced firearm charge, discussed infra. According to appellate counsel's affidavit, Frederick would also have testified that she heard someone shout "gun" outside of her window during the incident. This statement would have corroborated other witnesses' statements that there was a gun present. Finally, regarding her testimony that she did not see the defendant with a gun in front of her house, no other testimony established that the defendant had shown a gun at any point before he followed Robles and Pacheco away from the scene of the stabbing and onto a different street. Calling Frederick to testify solely to reaffirm the absence of the gun in front of her home would have opened her up to cross-examination on the issues discussed supra, which "would have done more harm than good." Commonwealth v. Irick, 58 Mass. App. Ct. 129, 133 (2003). For these reasons, the failure to call Frederick as a witness was not manifestly unreasonable.
Trial counsel stated:
"I have had conversations with Ms. Frederick, probably about 15 minutes' worth.... So as a result, I've made a tactical decision not to call her as a witness."
At trial, both Robles and Johnson retracted statements made at the scene that the defendant had pointed a gun at them during the original altercation. Duran also testified that she did not see a gun at that time.
2. Improper evidence. Due to the contradictory and incomplete testimony at trial, the Commonwealth introduced several out-of-court statements made by Robles and Johnson through the testimony of the responding Lynn police officers. Sergeant Michael Kmiec testified that while he was standing approximately fifteen to twenty feet from the prone defendant, Robles told him, "That's the guy with the fucking gun. One hundred percent. I've never been so positive about anything in my whole life." Officer Michael O'Connell testified that Johnson attributed the gun to "the big white guy." Officer John Geary testified that while standing approximately twenty-five feet from the defendant, who was on the ground, Johnson came up to him, pointed to the defendant, and said that the defendant had pointed a gun at him. After Geary asked Johnson to describe the gun, Johnson said that it was a "black .25 automatic." The defendant takes issue with each of these statements, which we address in turn.
Johnson's statement that "[the defendant] threw the gun in this area here" was properly admitted as a prior inconsistent statement, which the judge instructed the jury was to be used only to gauge credibility of the witness. See G. L. c. 233, § 23 ; Commonwealth v. Perez, 460 Mass. 683, 700 (2011).
The defendant claims that Robles's statement, "That's the guy with the fucking gun," is inadmissible hearsay because it was used to bolster the Commonwealth's case rather than to impeach Robles. This argument is unpersuasive, as "a witness's pretrial identification is admissible for substantive purposes ... where ‘the identifying witness testifies at trial and is subject to cross-examination.’ " Commonwealth v. Housewright, 470 Mass. 665, 676 (2015), quoting from Commonwealth v. Barbosa, 463 Mass. 116, 130 (2012). See Mass. G. Evid. § 801(d)(1)(C) (2017). Here, Robles testified at trial and was subject to cross-examination. Additionally, "identification evidence must be accompanied ... by some form of accusation relevant to the issue before the court ... in order to be relevant to the case." Commonwealth v. Adams, 458 Mass. 766, 772 (2011). In this case, it was, given Robles's mention of a gun in his statement.
The defendant next claims Johnson's statement that it was "the big white guy" was not a valid prior identification because it was made at a distance of "from twenty-five to thirty feet away where [the defendant] was face down on the ground." The motion judge properly admitted the testimony as a statement of prior identification. We discern no abuse of discretion. See Commonwealth v. Murray, 461 Mass. 10, 21 (2011), citing Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
Finally, the defendant argues that the admission of Johnson's statement that the gun was a "black .25 automatic" without a limiting instruction was improper. Without a limiting instruction, the jury were free to use this hearsay testimony as substantive evidence that Johnson saw the defendant with a gun very similar to the one police later found at the scene. Because trial counsel did not object, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002). Where identical evidence had already been introduced at trial without limitation, there was no substantial risk of a miscarriage of justice. See Commonwealth v. Womack, 457 Mass. 268, 275 (2010). Johnson himself testified that he told police the gun was a "black .25 auto," even if he stated that he was only repeating what he had heard from others at the scene.
The judge properly instructed the jury on their use of Johnson's prior identification. It appears from the transcript that the judge admitted the descriptor of the gun as a prior inconsistent statement, but inadvertently forgot to include that particular statement in her instructions to the jury on how to consider Johnson's prior statements.
3. Underlying offense for the defaced firearm charge. The defendant's final contention is that it was impermissible for the Commonwealth to use the uncharged felony of assault and battery by means of a dangerous weapon (related to Pacheco's stabbing) (ABDW) as the underlying offense for the charge of possessing a firearm with a defaced serial number during the commission or attempted commission of a felony under G. L. c. 269, § 11B. The defendant claims three errors relating to the uncharged ABDW: (a) that an uncharged offense cannot be used to satisfy the statute, (b) that there was no nexus between the uncharged ABDW and the defaced firearm charge, and (c) that there was insufficient evidence to support an ABDW charge.
a. Uncharged offense. The pertinent part of G. L. c. 269, § 11B, inserted by St. 1937, c. 199, states:
"Whoever, while in the commission or attempted commission of a felony, has in his possession or under his control a firearm the serial number or identification number of which has been removed, defaced, altered, obliterated or mutilated in any manner shall be punished...."
The Commonwealth properly used the uncharged ABDW as a predicate offense for the defaced firearm charge. See Commonwealth v. Gernrich, 476 Mass. 249, 251 (2017) ("The language of a statute is interpreted in accordance with its plain meaning"). The statute sets forth that possession of the defaced firearm is required only during the commission or attempted commission of a felony. Nothing in § 11B suggests that the defendant must be charged with that felony before being charged under the statute.
Additionally, as the motion judge noted, the language in § 11B closely resembles that of the felony-murder language found in G. L. c. 265, § 1. That statute provides that "[m]urder committed ... in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree." The Supreme Judicial Court has repeatedly stated that under this language, uncharged offenses may serve as the underlying basis for a felony-murder conviction. See Commonwealth v. Eagles, 419 Mass. 825, 839 n.16 (1995) ; Commonwealth v. Smiley, 431 Mass. 477, 491 (2000) ; Commonwealth v. Stokes, 460 Mass. 311, 315 (2011) ; Commonwealth v. Rivera, 464 Mass. 56, 81 (2013).
b. Nexus. Next, the defendant argues that because the uncharged ABDW involved a knife, and G. L. c. 269, § 11B, relates to firearms, there is an insufficient nexus between the firearms charge and the ABDW. When faced with the almost identical language of G. L. c. 265, § 18B, which criminalizes the commission of a felony while in possession of a firearm (regardless of whether it is defaced), the Supreme Judicial Court has held that conviction requires proof of "[s]ome nexus between the felony and the firearm in terms of proximity, and logical relation to the nature of the felony itself." Commonwealth v. Hines, 449 Mass. 183, 190 (2007). That standard applies here, as well, and it is easily satisfied, where the defendant possessed the firearm (a weapon of violence) at the time he committed (whether individually or as a joint venturer; see part 3.c., infra ) the ABDW (a violent felony), thus rendering the firearm proximate, and logically related to the predicate felony. See Commonwealth v. Golding, 86 Mass. App. Ct. 55, 58 (2014) ( "[ General Laws c. 265, § 18B,] criminalizes possession at the time a felony is committed, regardless of whether the weapon is employed to commit the felony").
General Laws c. 265, § 18B, as appearing in St. 1998, c. 180, § 56, provides, in pertinent part:
"Whoever, while in the commission of or the attempted commission of an offense which may be punished by imprisonment in the state prison, has in his possession or under his control a firearm, rifle or shotgun shall, in addition to the penalty for such offense, be punished by imprisonment in the state prison for not less than five years...."
c. Sufficiency. Finally, the defendant contends that the evidence was insufficient to support the uncharged ABDW because the conflicting testimony at trial failed to establish that he—and not Courtois—stabbed Pacheco. The Commonwealth responds by asserting that it was not necessary to prove that the defendant was the stabber because the stabbing was a joint venture entered into by the defendant and Courtois.
This argument is raised for the first time on appeal. We nevertheless consider it because "findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice." Commonwealth v. Joyner, 467 Mass. 176, 180 (2014), quoting from Commonwealth v. Powell, 459 Mass. 572, 579 (2011).
An uncharged predicate offense must be supported by the evidence. Commonwealth v. Stokes, 460 Mass. at 315. We review a claim of insufficient evidence in the light most favorable to the Commonwealth to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). In a case of joint venture, "[o]n appellate review, a court considers whether the evidence supports a finding that ‘the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense.’ " Commonwealth v. Akara, 465 Mass. 245, 253 (2013), quoting from Commonwealth v. Norris, 462 Mass. 131, 138-139 (2012). Additionally, it must be shown that the defendant knew that the coventurer was armed with a weapon. See Commonwealth v. Britt, 465 Mass. 87, 100 (2013).
In this case, the jury could infer that—at the least—the defendant and Courtois were familiar with each other, that the defendant and Courtois engaged in a verbal altercation with Pacheco, that Courtois stabbed Pacheco, that the defendant was in a position to view Courtois stab Pacheco, that both the defendant and Courtois followed Pacheco after the stabbing, and that the defendant pointed a gun at Pacheco and Robles once he and Courtois caught up with the pair. "At no time during th[e] conflict did the defendant seek to withdraw." Commonwealth v. Sexton, 425 Mass. 146, 152 (1997). See Commonwealth v. Williams, 475 Mass. 705, 711 (2016) ("The defendant's knowledge of the use of the weapon and continued participation in the robbery thereafter were sufficient to implicate him as a joint venturer"); Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 232-233 (2016).
Further, at the close of evidence, the jury were instructed that to convict the defendant of possessing a firearm with a defaced serial number during the commission or attempted commission of a felony under G. L. c. 269, § 11B, they would have to find that the defendant committed an underlying felony. The jury were instructed on the elements of ABDW and joint venture theory. See Commonwealth v. Jenkins, 458 Mass. 791, 802 (2011) ("[T]he jury are presumed to follow the judge's instructions"). These facts, viewed in the light most favorable to the Commonwealth, were sufficient for a rational jury to find that the defendant committed the predicate felony that was the basis for the defaced firearms charge.
Judgments affirmed.
Order denying motion for new trial affirmed.