Opinion
No. 11–P–73.
2012-06-29
COMMONWEALTH v. Shane BESTER.
By the Court (GREEN, BROWN & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2008, Shane Bester was convicted of murder in the second degree (G.L. c. 265, § 1), carrying a firearm without a license (G.L. c. 269, § 10[ a ] ), and a firearm offense having previous convictions of three violent crimes or three serious drug offenses (G.L. c. 269, § 10G[ c ] ). On appeal, the defendant contends that the trial judge improperly admitted certain hearsay evidence regarding the victim's state of mind. We affirm.
The defendant argues that the judge erroneously allowed a number of hearsay statements to be admitted.
In light of the defendant's objections to each statement at trial, we review the evidence under the prejudicial error analysis.
Statement no. 1: Jose DeMiranda testified that “[the victim] told me that there is the guy in the liquor store that stabbed him before. [The victim] told me, oh, wait for me. I'm going to go talk to him real quick.... [The victim] went to talk to the person that he said stabbed him before.”
Statement no. 2: Jose DeMiranda testified that he overheard the victim say to the defendant that he had stabbed him before and that the defendant responded that he was not the person that stabbed the victim.
Statement no. 3: Heriberto Borrero testified that the “[victim] told me that was the guy that was-he was with a group of guys that had stabbed [the victim]. And he was one of the guys that was holding [the victim] down.”
See Commonwealth v. Sharpe, 454 Mass. 135, 141 (2009). See also Commonwealth v. Andrade, 422 Mass. 236, 239 (1996). “The hearsay rule prohibits the admission only of out-of-court assertions offered to prove the truth of the matter asserted.” Commonwealth v. Siny Van Tran, 460 Mass. 535, 550 (2011). “[S]tatements may be offered as evidence of state of mind without implicating the hearsay rule if the statements either do not contain assertions or are offered without regard to whether the assertions are true.” Commonwealth v. Montanez, 439 Mass. 441, 447 (2003), quoting from Liacos et al., Massachusetts Evidence § 8.2.6 (7th ed.1999).
Because we conclude that the challenged out-of-court statements were not testimonial in character, we reject the defendant's confrontation clause argument, which invokes the standard of review of harmlessness beyond a reasonable doubt. See Commonwealth v. Siny Van Tran, 460 Mass. 535, 551–552 (2011).
“The state of mind exception to the hearsay rule calls for admission of evidence of a murder victim's state of mind as proof of the defendant's motive to kill the victim when and only when there also is evidence that the defendant was aware of that state of mind at the time of the crime and would be likely to respond to it” (emphasis added). Commonwealth v. Qualls, 425 Mass. 163, 167 (1997). See Commonwealth v. Van Liew, 14 Mass.App.Ct. 662, 666–667 (1982).
Standing alone, the statements made by the victim about the defendant's participation in the alleged prior stabbing would be inadmissible. However, the Commonwealth proffered the statements under the state of mind exception to prove a material issue-that the defendant was aware of the victim's state of mind and his beliefs. See Commonwealth v. Magraw, 426 Mass. 589, 593–595 (1998). Several witnesses testified that the victim approached the defendant and asked to talk. This request came immediately after the victim made statements about the prior stabbing to his companions. Specifically, one of the witnesses testified that he heard the victim say to the defendant, “I know you. It was you and your friends that did it.” Another witness testified that when the victim and defendant were talking outside the liquor store, the victim stated, “[i]f that's your boy, I'll kill you, too.” The Commonwealth presented additional evidence of the defendant's knowledge of the victim's state of mind through the testimony of the defendant's girlfriend. She testified that the defendant told her that he and the victim had been in a prior conflict and that there were ongoing altercations between the two.
In Commonwealth v. Borodine, 371 Mass. 1, 8 (1976), the Supreme Judicial Court found no error in admitting evidence of the victim's state of mind toward the defendant on the day of and the weeks before her death. In that case, the victim had stated to others that she had abandoned her plans to marry the defendant and instead intended to leave him. The court concluded that if the victim was willing to tell third parties about her deteriorating relationship with the defendant, that “it [was] inferable that by word or action, or both, she communicated her feelings to the defendant.” Ibid. Contrast Commonwealth v. Seabrooks, 425 Mass. 507, 512–513 (1997).
Similarly to Borodine, here the victim told third parties about his alleged prior interaction with the defendant and the jury could have reasonably inferred that the “it” the victim wanted to discuss with the defendant was the stabbing. Moreover, Jose DeMiranda testified that he overheard the victim confront the defendant with the accusation, and overheard the defendant deny it. Thus, the statements went to motive, rather than unfairly referring to the defendant's propensity or to prove the truth of prior bad acts, which was the material issue in Seabrooks, supra. “Evidence of motive is generally admissible.” Commonwealth v. Conkey, 430 Mass. 139, 145 (1999). The statements were admissible because they not only demonstrated that the victim wanted to discuss the alleged stabbing, but that the defendant would have been likely to respond. Qualls, 425 Mass. at 167.
Moreover, we do not think the defendant was unduly prejudiced in light of other evidence of his guilt.
Commonwealth v. Zagranski, 408 Mass. 278, 283–284 (1990). While the Commonwealth's case was largely circumstantial, it presented overwhelming evidence that the defendant participated in the victim's death, including the defendant's argument with the victim, the proximity of the defendant and victim to others, eyewitness testimony to seeing the defendant pull out a gun and shoot the victim, the defendant's girlfriend's observation of a gun in his hand when the shooting ceased, his mysterious disappearance immediately after the victim was shot, the defendant's departure for Florida later the same night, and incriminating statements he made to his girlfriend.
The prejudice, if any, was minimized by the cautionary instructions the judge gave on the limited use of state of mind evidence each time a witness testified to the victim's statements. See Commonwealth v. Helfant, 398 Mass. 214, 228–229 (1986).
See Commonwealth v. Beneche, 458 Mass. 61, 71 (2010). Contrast Commonwealth v. Hinckley, 422 Mass. 261, 267 (1996). We also note that the challenged statements were largely cumulative of the defendant's girlfriend's testimony as to what the defendant told her about his history with the victim. See Commonwealth v. Perrot, 407 Mass. 538, 549 (1990). In addition, other competent incriminating evidence implicating the defendant was properly admitted at trial.
“[C]ircumstantial evidence is competent to establish guilt beyond a reasonable doubt.” Commonwealth v. Bush, 427 Mass. 26, 30 (1998). The inferences drawn from the evidence need only be “reasonable and possible,” not “inescapable.” Ibid., quoting from Commonwealth v. Beckett, 373 Mass. 329, 341 (1977).
Here, the judge within her permissible discretion found the contested statements relevant and that their probative value outweighed any undue prejudice. See Commonwealth v. Azar, 32 Mass.App.Ct. 290, 300 (1992).
Accordingly, we discern no such prejudicial error as would warrant a new trial.
Judgments affirmed.