Opinion
13-P-1744
03-20-2015
COMMONWEALTH v. MICHAEL COKER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Michael Coker, appeals from his conviction of second degree murder. The murder occurred on March 18, 1988. The defendant argues that the judge committed two errors: (1) he erroneously admitted evidence concerning prior bruising on the victim's neck without sufficient evidence that the defendant had inflicted the bruising, and the error was exacerbated by an overly broad instruction concerning how this evidence could be used; and (2) he erroneously admitted statements made by the victim without sufficient evidence that the defendant heard or knew about the statements. We affirm.
Discussion. Admission of evidence concerning the victim's prior bruising. We briefly review the testimony the defendant argues was erroneously admitted. Two different witnesses testified to seeing bruising of the victim's neck while the defendant and the victim were dating or in each other's company. One witness testified that the victim "had some bruising" on her neck. Then in response to a question about how many bruises she saw, the witness stated: "I'm not sure. I know the [victim and the defendant] were fighting -- I don't know. I don't know how many I saw." The witness was asked if she was told who was responsible for the marks on the victim's neck and she responded no. After a brief cross-examination, defense counsel moved to strike the witness's testimony concerning the bruising, which was denied. The other witness testified that the victim got into her car in February of 1988 after having an angry exchange with the defendant. Then the witness stated:
This nonresponsive answer was not objected to. Earlier in this witness's testimony, the witness described the victim's romantic relationship with the defendant.
"[The victim] got into the car and she sat down, and she had thick pancake makeup on. And the left of her neck I saw a bruise, which I thought was a hickey. And I said, [the victim's name] because I had known that they had broke up. And then I saw underneath her left eye like an older bruise, and I kind of like grabbed her. And on the other side of her neck she had either two or three, I don't remember, identical, symmetrical little bruises. And I questioned her and she wouldn't answer me how she got them."The witness further noted that the bruises looked older because they were yellowish brown. Defense counsel moved for a mistrial at the end of this testimony. The judge did not declare a mistrial, but did provide a limiting instruction. In the jury charge, the judge instructed that the evidence of the bruises "may be considered for the limited purpose of proving identity or absence of mistake or accident," if the jury found beyond a reasonable doubt that the defendant was responsible.
"Before prior bad act evidence can be admitted against a defendant, the Commonwealth must satisfy the judge that the jury [could] reasonably conclude that the act occurred and that the defendant was the actor. The Commonwealth need only show these facts by a preponderance of the evidence. If the judge finds this standard has been met, it is thereafter for the jury to evaluate the evidence for its weight and credit."Commonwealth v. Rosenthal, 432 Mass. 124, 126-127 (2000) (citations omitted). In Rosenthal, the judge properly admitted evidence concerning two black eyes the victim had in the past. In Rosenthal, there was evidence that the defendant had initially provided an unbelievable cause for the victim's first black eye but later admitted he might have been the cause. There was also evidence that the defendant then gave another highly suspicious cause for the second black eye, and that the "victim was clearly ashamed of the fact that she had a black eye." Id. at 127.
The limiting instruction stated:
"[T]his testimony may be considered by you to the extent that you are satisfied beyond a reasonable doubt that there were injuries, prior injuries, or prior physical contact that involved this defendant and [the victim]. Then and only then could you consider this evidence for a limited purpose, and the purpose for which this could be relevant is to establish a motive or to provide some evidence of lack of mistake or absence of mistake, or to the extent it might provide some motive of [sic] intent on the defendant's part with regard to [the victim]."(This instruction incorrectly indicated the jury had to be satisfied beyond a reasonable doubt that the defendant caused the injuries. Instead, the facts have to be shown "by a preponderance of the evidence." Commonwealth v. Leonard, 428 Mass. 782, 785 [1999]).
Here, there was evidence that the victim tried to hide the bruises in February of 1988 with makeup and that she refused to discuss how she got the bruises. See ibid. (victim being ashamed is consistent with domestic abuse). The other bruises observed by the first witness were seen when the witness indicated the victim and the defendant were fighting. In addition, there was evidence that the defendant had written a letter to the victim which included the following statement: "I have thought about myself and I need to change very much and I will . . . change. . . . I never ever once wanted to hurt you I mean that. Please forgive me and give me a second chance." Finally, there was evidence that the defendant and the victim had a tumultuous relationship and the victim was either dating or in contact with the defendant when the bruises were seen. The Commonwealth met its burden of demonstrating to the judge that "the jury [could] reasonably conclude that the act occurred and that the defendant was the actor." Commonwealth v. Rosenthal, 432 Mass. at 126.
Further, although we agree that it was error to instruct the jury that this evidence could be considered to prove "identity" in the judge's final instructions, it did not create a substantial risk of a miscarriage of justice. In reviewing errors in unobjected to jury instructions for a substantial risk of a miscarriage of justice, "[w]e consider the strength of the Commonwealth's case, the nature of the error, the significance of the error in the context of the trial, and the possibility that the absence of an objection was the result of a reasonable tactical decision." Commonwealth v. Gibson, 82 Mass. App. Ct. 834, 837 (2012), quoting from Commonwealth v. Bolling, 462 Mass. 440, 452 (2012). Here, the Commonwealth's case and argument concerning the bruises was focused on the evidence of the defendant's motive, including that the defendant and the victim's relationship had been hostile, contrary to the defendant's assertions. The judge also provided instructions that included the proper use of this evidence ("the purpose for which this could be relevant is to establish a motive") during the testimony concerning the 1988 bruises. Further and significantly, the Commonwealth had DNA evidence linking the defendant to the victim's body. The error was not significant in the context of this trial.
The defendant also briefly argues that it was improper to include in the limiting instruction that the evidence could be used as evidence of a lack of mistake. This exception is plainly inapplicable to this case. Nevertheless, contrary to the defendant's assertion, we do not believe that the inclusion of this use of the evidence, which is not raised by the facts, could have influenced the jury. See Commonwealth v. Butler, 445 Mass. 568, 576 n.9 (2005) ("The instructions could have been more focused on the basis for admission of the evidence that we have discussed in the text. The jury, however, could not have misunderstood the limiting point -- that the evidence was not admitted for propensity or bad character").
Admission of the victim's statements. The defendant argues that it was reversible error to admit, over defense counsel's objection, testimony from three witnesses concerning statements they heard the victim make about the defendant. We briefly review the relevant testimony.
One witness testified that he spoke with the victim in late February or early March of 1988. The witness stated that he saw the victim on stairs near a store in the neighborhood, crying. During the conversation, the victim stated that "she was trying to get away from [the defendant] and that he told her she wasn't getting away from him. . . . She stated that he wouldn't allow her to leave him." Another witness, the victim's sister, stated that on the day the victim was killed, the victim said, "I bit off more than I can chew. [The defendant is] everywhere I go" after the victim's sister told the victim the defendant had been calling the house repeatedly. Finally, a third witness testified that the victim told her the following concerning the status of her relationship with the defendant in late 1987 and early 1988: "[S]he wanted to, was breaking up with him or already broke up with him, and that she was trying to get away from him."
"Generally, determinations as to the admissibility of evidence lie 'within the sound discretion of the trial judge.'" Commonwealth v. Bins, 465 Mass. 348, 364 (2013), quoting from Commonwealth v. Jones, 464 Mass. 16, 19-20 (2012). "The broad rule on hearsay evidence interdicts the admission of a statement made out of court which is offered to prove the truth of what it asserted." Commonwealth v. Bins, supra at 365, quoting from Commonwealth v. DelValle, 351 Mass. 489, 491 (1966), S.C., 353 Mass. 684 (1968).
"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. . . . A murder victim's attitude of contempt or hostility toward the defendant, when it is known to the defendant, would constitute some evidence which, augmented by other evidence, might warrant a fact finder's determination that the defendant responded by killing the victim."Commonwealth v. Qualls, 425 Mass. 163, 167-168 (1997), S.C., 440 Mass. 576 (2003). Direct evidence that the "defendant learned of the victim's state of mind" is not necessary as long as "'the jury could have reasonably inferred' that he did learn of it." Commonwealth v. Franklin, 465 Mass. 895, 907 (2013), quoting from Commonwealth v. Qualls, 425 Mass. at 170. However, "[a] murder victim's statement that he feared the defendant, even if made known to the defendant, sheds no light on whether the defendant had a motive to kill him, and therefore is not admissible in the defendant's trial for murder." Commonwealth v. Qualls, supra at 169.
Here there was evidence that the defendant had been told that the victim did not want to hear from him anymore and no longer wanted to date him. One of the victim's sisters testified that the defendant had come to their house after he and the victim had broken up, on two different occasions. The sister told the defendant that the victim "didn't want to see him" and he should leave the house. Another sister testified that she told the defendant to stop calling the house and that the victim did not want to speak with him. Both sisters testified that the defendant was angered by these responses to his attempts to contact the victim. Based on this evidence, a jury could have reasonably inferred that the defendant knew the victim was trying to get away from him and that he continued to contact her despite having been told that she did not want to hear from him. As a result, there was no error in admitting testimony that the victim was trying to get away from the defendant and she did not want to continue to be contacted by the defendant.
Furthermore, even if the admission of the testimony concerning the victim's statement that the defendant "told her she wasn't getting away from him . . . that he wouldn't allow her to leave him" and that he was "everywhere I go" was error, these statements were merely cumulative of properly admitted evidence that the defendant was not heeding the victim's requests that she be left alone, from which the jury would infer that the victim felt the defendant was not letting her leave him and he was everywhere she went. See Commonwealth v. Bianchi, 435 Mass. 316, 324 (2001); Commonwealth v. Garuti, 454 Mass. 48, 54 (2009).
Judgment affirmed.
By the Court (Trainor, Vuono & Hanlon, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 20, 2015.