Opinion
14-P-833
11-19-2015
COMMONWEALTH v. JAMES EVANS.
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, James Evans, appeals from his convictions of possession of a large capacity firearm, in violation of G. L. c. 269, § 10(m); possession of a firearm (as a career criminal), in violation of G. L. c. 269, § 10G(a); and possession of ammunition (as a career criminal), in violation of G. L. c. 269, § 10G(a). The defendant argues that the trial judge erred by allowing Trooper Bukhenik to testify about William Fitz's out-of-court statements made to him during his investigation. The defendant further argues that Trooper Hess's testimony regarding the State police crime laboratory's (lab's) rate of discovery of fingerprints recovered from firearms was inadmissible and prejudiced the defendant. We affirm.
Facts. We summarize the facts as the jury could have found them, in the light most favorable to the Commonwealth. Commonwealth v. Sanna, 424 Mass. 92, 93 (1997).
On May 24, 2014, Trooper Bukhenik was completing his final day of field training with Trooper French. As Trooper Bukhenik was driving on Southbridge Street in Worcester, he noticed a group of four to five males gathered on the sidewalk between a tavern named Hurricane Betty's and a Mercedes vehicle parked in front of the establishment. Trooper Bukhenik observed a verbal altercation that he believed was about to become a physical altercation. Trooper Bukhenik observed one of the males separate from the group and sprint away. Then the other males, except the defendant, chased after the male who had separated from the group. When the defendant moved toward the front of the Mercedes, Trooper Bukhenik saw a black semiautomatic pistol in the defendant's right hand.
Although Trooper Bukhenik was completing his final day of field training with Trooper French, he previously had worked as a police officer in Attleboro for four years. Prior to his time in Attleboro, Trooper Bukhenik worked as a police officer at a Veterans Administration (VA) hospital for just under one year. Prior to his work at the VA hospital, Trooper Bukhenik was a military police officer in the United States Marine Corps for four years.
After seeing the pistol, Trooper Bukhenik and Trooper French exited their cruiser. The defendant, who no longer had the pistol in his hand, was placed under arrest. Trooper Bukhenik then observed Michael Faison on a cellular telephone by the establishment and ordered him to the ground. While Trooper Bukhenik was watching Faison on the ground, he noticed him looking at an object on the ground. Trooper Bukhenik moved closer to the object and identified it as a magazine-feeding device for a firearm. Trooper Bukhenik then located the pistol close to the rear passenger tire of the Mercedes. When Trooper Bukhenik secured the pistol, he found one round in the chamber of the pistol and eleven rounds in the separate magazine. The defendant and Faison were both transported to the State police barracks. Faison was not arrested. Neither Trooper Bukhenik nor Trooper French had observed Faison with the pistol.
Before leaving the scene, Trooper Bukhenik spoke with William Fitz, the owner of the Mercedes. Trooper Bukhenik determined that Fitz was not involved in the incident.
Discussion. 1. Trooper Bukhenik's testimony concerning Fitz's statements. The defendant argues that Trooper Bukhenik's testimony regarding statements made by Fitz violated his rights under the confrontation clause of the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights and therefore requires a new trial. We believe that the judge acted well within her discretion to allow Trooper Bukhenik's testimony to rebut the defendant's defense of the deficient investigation. See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). "[T]he inference that may be drawn from an inadequate police investigation is that the evidence at trial may be inadequate or unreliable because the police failed to conduct the scientific tests or to pursue leads that a reasonable police investigation would have conducted or investigated, and these tests or investigation reasonably may have led to significant evidence of the defendant's guilt or innocence." Commonwealth v. Silva-Santiago, 453 Mass. 782, 801 (2009). The Bowden defense "is a two-edged sword for the defendant, because it opens the door for the Commonwealth to offer evidence explaining why the police did not follow the line of investigation suggested by the defense." Id. at 803 n.25. "[T]he more wide-ranging the defendant's attack on the police investigation, the broader the Commonwealth's response may be." Commonwealth v. Avila, 454 Mass. 744, 754-755 (2009). This information is not hearsay because it is offered to show that information was provided to the police and not for the truth of the matter asserted. Commonwealth v. Reynolds, 429 Mass. 388, 391-392 (1999). The admission of Bowden evidence does not require a special instruction to the jury. It only requires that the judge not take the issue of the adequacy of the police investigation away from the jury. Commonwealth v. Williams, 439 Mass. 678, 687 (2003).
The defendant's cross-examination of Trooper Bukhenik elicited testimony that he had interviewed Fitz and quickly eliminated him as a suspect. The defendant then tried to demonstrate Trooper Bukhenik's inexperience as well as the insufficiency of the investigation. Once the defendant raised the Bowden defense and attacked the sufficiency of the investigation, the Commonwealth was allowed to rebut it. See Avila, 454 Mass. at 753. The presentation of a Bowden defense can significantly expand the evidentiary boundaries. Id. at 757. After a voir dire with Trooper Bukhenik, the judge warned defense counsel that, "your questions or answers that you get may open the door to other things." The judge then gave defense counsel a brief recess to decide how he wanted to proceed, and counsel still chose to pursue a Bowden defense. Accordingly, the judge did not abuse her discretion when she allowed Trooper Bukhenik to testify to statements made by Fitz about his whereabouts while Trooper Bukhenik was investigating.
The defendant argues that defense counsel only was attacking Trooper Bukhenik's experience not the sufficiency of the investigation. However, defense counsel was clearly attacking the sufficiency of the investigation at trial. This was evidenced by defense counsel's statement in his closing that: "[Trooper Bukhenik] talked to [Fitz]. Oh he wasn't involved. He was inside. Just takes his word for it. He rules him out as a suspect. . . . But nothing about it in the police report. Nothing about his investigation, talking to him, clearing him. He didn't even give a copy to the DA. . . . At this point, why is this important? He determines in his mind who's guilty and who's not. He wants to be the judge and jury in this case, and he's not."
2. Trooper Hess's testimony regarding fingerprint rate of recovery. The defendant further argues that the judge erred by allowing Trooper Hess to testify about the statistics for fingerprint recovery from firearms compiled by the State police because they were irrelevant and prejudicial. The defendant, however, raises this claim for the first time on appeal. At trial, the defendant objected to Trooper Hess's testimony on hearsay grounds. Nevertheless, this evidence is neither hearsay nor irrelevant and unfairly prejudicial. Massachusetts law accords relevancy a liberal definition. Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989). Relevancy has two components: first, the evidence must have some tendency to prove or disprove a particular fact; and, second, that particular fact must be of consequence in the case. Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485 (2004). The evidence does not need to be conclusive on the issue to be admissible. Commonwealth v. Ashley, 427 Mass. 620, 624-625 (1998). Relevant evidence may be excluded when its probative value is substantially outweighed by the danger of unfair prejudice. See Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014).
Here, it was permissible for the prosecutor to elicit testimony from Trooper Hess as to the rate of fingerprint recovery from firearms within the State police crime lab. The statistics were highly relevant to understanding the significance of the fact that the pistol recovered by Trooper Bukhenik had no identifiable fingerprints. See Commonwealth v. Sylvia, 456 Mass. 182, 191-193 (2010) (determining testimony regarding the rate of detection and nondetection in gunshot powder residue kits analyzed in testing at the State police crime laboratory was not irrelevant). The testimony from Trooper Hess shed light on the issue and significance of the absence of fingerprints on the pistol. See Adoption of Carla, 416 Mass. 510, 513 (1993).
The testimony from Trooper Hess was not unfairly prejudicial. "Whether evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge's broad discretion and are not disturbed absent palpable error." Commonwealth v. Simpson, 434 Mass. 570, 578-579 (2001). The trial judge did not abuse her discretion in allowing the testimony of Trooper Hess regarding the rate of fingerprint recovery from firearms within the State police crime lab.
Judgments affirmed.
By the Court (Trainor, Grainger & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 19, 2015.