Opinion
No. 12–P–169.
2013-09-24
COMMONWEALTH v. Kai KRUGER.
By the Court (MEADE, MILKEY & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of assault, four indictments for armed robbery, three indictments for witness intimidation, and four indictments involving use of a firearm.
According to the defendant, “[t]he sole disputed issue in this case was whether the gun possessed by the defendant met the definition of a firearm under G.L. c. 140, § 121, which required proof that ‘a shot or bullet can be discharged’ from it.” On appeal, he argues that permitting the Commonwealth's expert to testify that the gun met the statutory definition of a firearm was prejudicial error; there was insufficient evidence to prove that the gun was a firearm; and permitting the robbery victims to testify that the defendant used a racial epithet during the robbery created a substantial risk of a miscarriage of justice. For the reasons outlined below, we affirm. Background. The charges against the defendant stem from two separate robberies, occurring two days apart, in the Harvard Square area of Cambridge. The defendant raises no issue about the first robbery.
The four indictments were: possession of a firearm while committing a felony, in violation of G.L. c. 265, § 18B; possession of a firearm without a license, in violation of G.L. c. 269, § 10( a ); possession of a loaded firearm, in violation of G.L. c. 269, § 10( n ); and discharging a firearm within 500 feet of a building, in violation of G.L. c. 269, § 12E. On the charge of possession of a firearm or ammunition without a firearms identification card, in violation of G.L. c. 269, § 10( h ), the Commonwealth filed a nolle prosequi.
The second robbery occurred on November 13, 2010. At approximately one o'clock in the morning, three young men
During the early morning hours of November 11, 2010, as the victim Nicholas Gardner was walking across the Harvard campus, on his way home from a falafel restaurant, the defendant approached and pointed a gun at him, demanding Gardner's wallet. Gardner handed over the wallet, along with his cell phone and iPod. The defendant then said “Don't judge me, this is Cambridge, I'm just trying to get by, it's hard here, don't judge me.” He also told Gardner to “[g]et the fuck out of there and not to do anything stupid because he'd be watching.”
were walking on Brattle Street. The defendant rode up on a bicycle, got off the bicycle and approached with a gun in his hand, instructing the victims to “Give me all of your shit ... This is [my] city.” He then said, “You think this is a joke, this isn't a game.” The defendant also referred to the victim, Chukwuma Nwachukwu, “numerous times with the ‘N’ word.”
Chukwuma Nwachukwu, Alec Yeh and Benjamin Silva.
While the robbery was in progress, Cambridge police officer Timothy Lawton drove up in a police cruiser and asked if everything was alright. The defendant told the victims that, if they said anything, he would shoot them. When two of them said, “Everything is fine” but shook their heads to the contrary, Lawton got out of the cruiser and the defendant ran across Brattle Street. Lawton chased him, radioing for assistance. During the chase, the defendant turned and, from a distance of approximately twenty-five feet, fired his gun at the officer. As he did so, the defendant lost his footing and fell down a small set of stairs. Lawton saw the “flame of the gun come out,” and the three victims each heard a gunshot come from the direction where the defendant had run. Officer Christopher Ahern later retrieved the gun from the ground and removed the magazine; he observed that the barrel had been cut and after “racking the slide ... saw a brass casing in the barrel.” Ahern testified that he was forced to remove the casing with pliers because it did not automatically eject; “usually when you pull the slide back, it's supposed to eject the brass casing.” Despite a careful search of the area, the officers were unable to find a projectile.
The ballistician, Trooper Michael Bonasoro of the Massachusetts State Police, testified as the Commonwealth's firearms expert. Bonasoro identified the defendant's gun as a semi-automatic pistol with the “barrel cut down from its original length” and a “household nail” acting as the firing pin. He testified that the improvised “firing pin's too long, so it's actually causing damage to the chamber.... So it's actually pinching the chamber, so now the chamber is actually smaller.” “Normally a magazine, along with the slide, would push the live cartridge into the chamber. But it would have trouble in this case, due to the diameter of the chamber being altered.” However, Bonasoro testified that it was still possible to load the gun manually.
Bonasoro used a “pulled projectile” cartridge
to test fire the gun; he testified that method is used regularly as an accurate means of test firing “if the firearm was damaged or if it was an older type firearm and [the ballistician] [wasn't] sure of the condition of the firearm.” Bonasoro completed four test fires by manually loading the altered cartridges. Based on what he described as completed test fires, Bonasoro testified, over the defendant's objection, that the defendant's gun was a firearm as defined by the statute.
A pulled projectile cartridge is a live cartridge that has the projectile and gun powder taken out of the casing.
Discussion. Expert firearm testimony. The defendant first argues that it was error to allow Bonasoro to opine that the defendant's gun was a firearm under G.L. c. 140, § 121. In the defendant's view, the trooper's testimony was tantamount to an expression of opinion on the defendant's guilt and thus, was prejudicial error. We disagree.
“The admission of expert testimony is within the discretion of the trial judge, and a judge's decision to admit expert testimony is subject to review only for abuse of discretion. Commonwealth v. Shanley, 455 Mass. 752, 762, 919 N.E.2d 1254 (2010).” Commonwealth v. Roderiques, 462 Mass. 415, 428, 968 N.E.2d 908 (2012). “Opinion testimony may ‘touch’ on an ultimate issue in the case, if couched in appropriate language, but an expert cannot directly speak to, or express a point-of-view about, the issue of the defendant's guilt or innocence .” Commonwealth v. Acosta, 81 Mass.App.Ct. 836, 842 n. 10, 969 N.E.2d 720 (2012) (citations omitted). However, that formulation does not end the inquiry. As we said in Commonwealth v. Tanner, 45 Mass.App.Ct. 576, 581, 700 N.E.2d 282 (1998), “the better practice is to focus the analysis on whether the evidence is explanatory. The role of an expert witness is to help jurors interpret evidence that lies outside of common experience. So long as expert testimony is directed to that purpose, it is admissible.” Ibid. (citations omitted).
Under that analysis, we see no abuse of discretion here. A proper foundation was laid to establish Bonasoro's qualifications as a firearms expert. He was not a percipient witness to the underlying offense and he did not testify that the defendant possessed or carried the firearm. The question whether an object is a firearm, that is, a “weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches” is not a matter of common knowledge. G.L. c. 140, § 121. Commonwealth v. Rivera, 76 Mass.App.Ct. 304, 307, 921 N.E.2d 1008 (2010), quoting from Commonwealth v. Nieves, 43 Mass.App.Ct.1, 3, 680 N.E.2d 561 (1997) (“While the jury could determine the barrel length by inspection, ‘the mechanisms of guns are not so universally familiar that jurors, simply by looking at one, can tell whether it works' ”). Furthermore, the judge properly instructed the jury regarding the weight to be given expert testimony.
Finally, even if the testimony that the object “was a firearm,” according to the statute, went over the line, that statement added little to the preceding testimony, clearly proper, addressing each underlying fact supporting Bonasoro's conclusion. We see no prejudice to the defendant.
Specifically, he said, “[I]t's completely up to you to decide whether you accept the testimony of an expert witness, including the opinions that the witness gave. It's also entirely up to you to decide whether you accept the facts relied on by the expert, and to decide what conclusions, if any, you draw from that witness's testimony.”
Sufficiency of the evidence. In addition to Bonasoro's opinion testimony, there was substantial other evidence that the gun was a firearm. Lawton testified that he saw a flame coming from the muzzle of the gun; all three of the victims heard the gunshot; and a spent casing was found in the gun chamber when the gun was retrieved from the scene. This evidence alone would have supported the defendant's conviction. Compare Commonwealth v. Mendes, 75 Mass.App.Ct. 390, 397, 914 N.E.2d 348 (2009) (“[I]ndependent evidence included testimony of three audible shots, the three empty casings, and the smell of gunpowder. That information amply supported the working condition of the weapon. The evasive actions of the defendant and the close proximity of the firearm in time and place to his presence in the street connected him to the weapon and reinforced the verdicts”).
In addition, Bonasoro's testimony about his “pulled projectile” test firings was properly admitted and, if credited by the jury, would be sufficient, by itself, to support the jury's verdict. The defendant's citation to Commonwealth v. Sampson, 383 Mass. 750, 422 N.E.2d 450 (1981), does not help him. As we said in Commonwealth v. Raedy, 24 Mass.App.Ct. 648, 653–654, 512 N.E.2d 279 (1987), “[i]n Sampson, ... the instrument in question was a flare gun and without test-firing that instrument it could not be determined whether it was a ‘weapon’ as defined in G.L. c. 140, § 121.” The facts in Raedy are similar to those of the present case; the expert there could not safely test fire the gun in its unrepaired state, and, as in Raedy, we are satisfied that “[t]he evidence was sufficient to put to the jury, with appropriate instruction, the question whether the gun was a firearm.” Id. at 654, 512 N.E.2d 279.
Racial epithet. The defendant's final argument is that it was error for the judge to allow what he describes as irrelevant testimony about the defendant's use of a racial epithet (“the ‘N’ word”) during the second robbery.
The defendant filed a motion in limine that the judge denied; however, he did not object to the testimony at trial. He agrees that we review for a substantial risk of a miscarriage of justice.
While defense counsel made it clear in her opening that the defendant was challenging only the firearm related charges, the defendant did not plead guilty to the other charges and the Commonwealth retained the burden of proving three counts each of armed robbery and intimidation of a witness. The defendant's conduct during the robbery and his accompanying threats to shoot the victims if they said anything to the police officer were therefore relevant and admissible.
The case of Commonwealth v. Bishop, 461 Mass. 586, 963 N.E.2d 88 (2012), does not assist the defendant. The defendant cites Bishop for the proposition that “[b]efore a judge admits evidence that a defendant used this word to describe a man of color, the judge must be convinced that the probative weight of such evidence justifies [the] risk [of unfair prejudice].” Id. at 596, 963 N.E.2d 88. In Bishop, the defendant, a white man, used the derogatory term in an unrelated threat against another inmate in the jail where Bishop was awaiting trial for the murder of a man of color. Here, the epithet, which was described only with the euphemistic “N word” language, was part of the defendant's behavior during the incident that was the subject of the trial. In addition, it is not insignificant that the record does not indicate clearly whether the defendant was, in fact, “white” or European–American, or of some other race.
Finally, it would be odd indeed if offensive and intimidating language used during a robbery to frighten victims was later determined too prejudicial to be heard by the jury deciding whether the Commonwealth had proven intimidation and fear beyond a reasonable doubt. We see no error.
According to the defense brief, “[t]he defendant here was described as having a ‘slightly darker skin tone’ or ‘slightly dark skin’ and a ‘possibly Hispanic’ appearance.”
Judgments affirmed.