Opinion
13-P-800
12-17-2014
COMMONWEALTH v. HUSSAIN POWELL.
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
A Superior Court jury convicted the defendant of aggravated assault and battery by means of a dangerous weapon, unlawful possession of a firearm, and carrying a loaded firearm. In this appeal, the defendant argues that (1) the prosecutor's opening improperly referred to the defendant's statement to the police denying being in the area where the assault occurred (the trial judge ruling later during trial that the statement was inadmissible under Commonwealth v. Nawn, 394 Mass. 1, 4-5 [1985]), and (2) the prosecutor's closing argument improperly suggested witness intimidation and invited jurors to sympathize with police frustration with uncooperative witnesses in investigations. We affirm.
After the jury's verdict, the defendant's motion for required findings of not guilty was allowed, and the Commonwealth appealed. This court reversed the allowance of the defendant's motion on the three convictions in an unpublished memorandum and order pursuant to our rule 1:28. See Commonwealth v. Powell, 81 Mass. App. Ct. 1116 (2012).
1. Background. The following summary is taken from the trial record. On the afternoon of September 8, 2008, the victim and the defendant, both students at West Roxbury High School, engaged in a fist fight at the school bus stop near the Ashmont MBTA station. Although the victim did not identify his opponent in the fight, two other witnesses identified the defendant as the victim's adversary.
Two days later, on the morning of September 10, 2008, the victim was shot while waiting for the school bus in a crowd near the Ashmont station. The shooter was not identified. Later that day, detectives interviewed the defendant. Miranda warnings were given. The interview was recorded. The defendant told police that he had not gone to the Ashmont bus stop or to school on September 10, 2008.
A Superior Court judge (not the trial judge), in a memorandum ruling on a motion to suppress unrelated to this appeal, gave the following account of the police interview:
"On the afternoon of September 10, the defendant went to a police station with his father for an interview with Detectives Patrick Foley and Kenneth Connolly. The interview was recorded. The defendant admitted that he had been [in] a fight with [the victim] on Monday, September 8. The defendant told the detectives that he had told his girlfriend not to go to Ashmont on September 10 because of the fight he had on September 8.
"The defendant stated that he did not go to the Ashmont bus stop or to school on September 10 because of an instant message he received at 6:20 A.M. The instant message came to him on his cellphone. The defendant said that the instant message was from a student he knew . . . . The defendant said that [the] instant message told him that the guy he got into a fight with had just been shot. The defendant told the detectives that he erased the message. The defendant denied being involved in the shooting and denied being present . . . at the time of the shooting."
On January 12, 2010, the first day of trial, the Commonwealth filed a motion in limine requesting permission to submit and play the recorded police interview of the defendant to the jury. The motion was not addressed at that time. Thereafter, the prosecutor made the following remarks in his opening statement:
"[On the day of the shooting], after failing to show up at school, [the defendant] reports to the police who have a conversation with him and that's really when the gathering of the evidence begins. The police have a conversation with [the defendant]. They begin to talk to everybody else who was there that they could ascertain. . . . You are also going to hear from a number of other witnesses who put [the defendant] at the scene after he denies that he was even in the area" (emphasis supplied).
Defense counsel objected on the bases that the defendant's statements to the police were inadmissible denials of guilt under Commonwealth v. Nawn, supra, and that the defendant had not been notified of the recorded police interview prior to the Commonwealth's filing of the motion in limine above referenced.
On the second day of trial, the judge initially ruled that a police witness could testify about statements made by the defendant during the recorded police interview. However, upon further consideration, the trial judge concluded the statements were inadmissible. The trial judge ultimately ruled that, under Nawn, the Commonwealth "may not ask the witness about any denials that were made unless the defendant should open the door by testifying about it. . . . The audio taped interview and statements by the defendant made after he was advised of his rights denying his participation in the crime are inadmissible."
The Commonwealth argues that the statement should not have been excluded at trial because the constitutional underpinnings of the Nawn case have since 1985 been limited in subsequent cases. Suffice it to state, the Nawn principles remain well established. See Commonwealth v. Diaz, 453 Mass. 266, 273-274 (2009). In any event, this Commonwealth's argument is presented in a variation seemingly to suggest that the prosecutor was right in his reference and the judge was wrong in her ruling of exclusion. We need not go down this path because the issue before us is not the rightness of the judge's Nawn ruling of exclusion of the defendant's statement. Rather, the issue is whether the prosecutor had a good faith basis for the reference in opening, and we conclude he did, as detailed below.
2. Opening statement. The defendant argues that the prosecutor's brief reference in his opening statement to the defendant's denial of being in the area of the crime scene requires reversal. We disagree. "The prosecutor in a criminal action in general may state in his opening anything that he [or she] expects to be able to prove by evidence." Commonwealth v. Fazio, 375 Mass. 451, 454 (1978). "The prosecutor's expectation must be 'reasonable and grounded in good faith.'" Commonwealth v. Sylvia, 456 Mass. 182, 188 (2010), quoting from Fazio, 375 Mass. at 456. "Although the expected testimony or other evidence that the prosecutor alluded to in his [or her] opening may not materialize during trial, it will not be presumed that the prosecutor acted in bad faith." Fazio, 375 Mass. at 454.
We do not accept the proposition that the prosecutor acted unreasonably or in bad faith by alluding, briefly, in his opening statement to the defendant's assertion of not being present in the area of the crime scene. The defendant claims that the Commonwealth's "belatedly filed" motion in limine seeking to play the police interview recording somehow "foreclosed" defenses. This claim fails. The defendant was put on notice as early as April 7, 2009, and on as many as three occasions, that the Commonwealth might seek to introduce the defendant's statements to police at trial.
References to the defendant's relevant statements appear in the record as follows: (1) in the Commonwealth's statement of the case, dated April 7, 2009; (2) in the October 14, 2009, Superior Court memorandum quoted in note 2, supra; and (3) in the parties' joint pretrial memorandum, dated December 22, 2009. References to the recorded police interview also were contained in notices of discovery filed by the Commonwealth, dated April 10, 2009, and May 7, 2009.
At the time of the prosecutor's opening, the more conservative thing to have done, and the better practice, would have been not to bring up a defendant's statement that remained under consideration as the subject of a motion in limine. However, that does not translate in this case to meaning that it was unreasonable or an act of bad faith for the prosecutor to have predicted that the defendant's statement would be admitted at trial. Indeed, in her initial ruling, the judge tended to the view that the challenged statement was admissible, only changing that ruling upon further reconsideration and excluding the statement. This is consistent with the trial reality that "the admissibility of [such] statements . . . hinges on a factual determination of whether there is an unequivocal denial of the charges by the defendant in all or part of the statements." Commonwealth v. Spencer, 465 Mass. 32, 46 (2013). Given the factual determinations yet to be made by the trial judge, and viewing the trial process in totality, in this case, "[t]he prosecutor was not obliged to guess at the time of his opening" as to which of the defendant's statements to police would be admitted. Fazio, 375 Mass. at 456. More to the point, to the extent the prosecutor guessed wrong here, there is no indication that in the opening the prosecutor engaged in bad faith or an unreasonable commentary on the case.
The jury were thoroughly instructed that opening statements are not evidence.
Lastly, we note that the challenged remark was short and fleeting, and not given prolonged or undue emphasis in the opening statement. The remark comprises ten words in an opening argument that spans nearly four pages of transcript. We do not see prejudice in this limited reference. See Commonwealth v. Storey, 378 Mass. 312, 323-324 (1979) (prosecutor's remark -- "[H]ave you heard word one from the defendant as to what took place down at the police station?" -- was so fleeting as not to give rise to prejudicial error).
3. Closing argument. The defendant argues that the prosecutor's closing argument comments concerning witness "attitude" and the lack of cooperation by the victim and his cousin suggested witness intimidation and invited jurors to sympathize with the police:
"You saw the victim. You saw his attitude. You saw his cousin's attitude. Denied even knowing this man. Then you heard from their friend, [who] came in and told you, yeah, [the victim] got into a fight with that guy right there. . . . [T]he victim refused to identify anybody but he also refused to identify this guy as being in a fight with him where it was so blatantly obvious that he did get into a fight with him. Ask yourself why is this kid is [sic] denying that that's the guy. Why is his cousin denying that's the guy? You have been getting a front row seat for the frustration that the Boston police feel when incidents like this occur and you encounter a [victim] or [witness] and they want nothing to do with it . . ." (emphasis supplied).
Because the defendant did not object to the statements at trial, we review to determine whether any error created a substantial risk of a miscarriage of justice.
The defendant's first point, that the prosecutor's remarks implied there had been witness intimidation, is not persuasive. In commenting on the general lack of eyewitness cooperation with police, the prosecutor was arguing a reasonable inference from the trial evidence. "[A] prosecutor may argue reasonable inferences from the evidence." Commonwealth v. Joyner, 467 Mass. 176, 189 (2014), citing Commonwealth v. Lewis, 465 Mass. 119, 129 (2013). Further, the prosecutor's reference to "incidents like this" does not imply witness intimidation so much as a well-known reluctance to cooperate with law enforcement authorities. See, e.g., Commonwealth v. Tavares, 459 Mass. 289, 304-305 (2011) (Gants, J. concurring) (citing Woldoff, Stop Snitchin': Exploring Definitions of The Snitch and Implications for Urban Black Communities, 17 J. Crim. Just. & Popular Culture 184 [2010]).
As noted, neither the victim nor his cousin identified the defendant as being a participant in the altercation two days prior to the shooting. The victim did not identify the defendant at trial. An officer who responded to the shooting described the victim as follows: "He was uncooperative. He just kept screaming. He wouldn't answer any questions." Another officer, asked to describe the level of cooperation among the eyewitnesses, said, "It was very uncooperative. No one was really giving us any information at all."
As to the defendant's second point, we agree that the prosecutor's commentary about the jury "getting a front row seat for the frustration that the Boston police feel when incidents like this occur" was an improper effort to enlist jury sympathy. This effort at connective linking of victim and eyewitness failure to identify the assailant with generalized suggestions of police frustration was not justifiable.
We conclude, however, that the prosecutor's singular image of a "front row seat," while inappropriate, did not create a substantial risk of a miscarriage of justice. "In such cases [as this], we must and do recognize that closing argument is identified as argument, the jury understands that, instructions from the judge inform the jury that closing argument is not evidence, and instructions may mitigate any prejudice in the final argument. A certain measure of jury sophistication in sorting out excessive claims on both sides fairly may be assumed." Commonwealth v. Kozec, 399 Mass. 514, 517 (1987) (citation omitted).
Judgments affirmed.
By the Court (Grasso, Berry & Cohen, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 17, 2014.