Opinion
15-P-1643
08-21-2017
COMMONWEALTH v. Darius GIBSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Darius Gibson, appeals from his convictions of armed assault with intent to murder, in violation of G. L. c. 265, § 18(b ), three counts of assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A(b ), possession of a firearm without a license, in violation of G. L. c. 269, § 10(a ), and possession of ammunition without a firearm identification card, in violation of G. L. c. 269, § 10(h ). The defendant raises several arguments on appeal. We affirm.
Background. Around midnight of September 30, 2010, the victim and the defendant, whom the victim knew as "LA," had arranged to fistfight in the area of Newbury Street and Highland Street in Brockton. The defendant and the victim had known each other for about two to three months.
The victim went to the fight, joined by his cousin, Derek Hamilton, and his friends Frank Davis and Darren Bradley. When he arrived at the designated area, the victim heard "several" gunshots. He did not know where the gunshots were coming from. The victim began to run, but then fell to the ground. He continued to hear gunshots and realized that he was bleeding. The victim's friends were "gone."
The Brockton police department's "Shot Spotter" listening system indicated that nine shots were fired. Eight shots were identical in sound, nature, and spacing, while one shot presented a different audio.
As the victim was "rolling around" on the ground, he saw the defendant "with a black hoodie," firing a gun toward him multiple times. The victim saw the defendant's face and recognized the glasses and black and gold hoodie that the defendant had been wearing when the victim saw him earlier that night. The victim called 911 and told the operator that the defendant, "LA," had shot him. The victim was shot twice in his leg, once in his left buttock, once in his right arm, and once in his lung. One .22 caliber cartridge casing was found at the scene, located near where the victim was.
The victim told Officer Keith Boehner, responding to the 911 call, that the shooter was "LA" and described him as a [b]lack male with glasses wearing a black hoodie pulled up over his head." Officer Boehner called over his radio to see if any detectives knew someone who used "LA" as a nickname. Lieutenant Paul Bonanca arrived on the scene and compared the telephone number that the victim's cellular telephone (cell phone) had for "LA" with the number that the officer had for a confidential informant he knew as "LA." The two phone numbers matched.
Lieutenant Bonanca had previously received voicemail messages from the defendant, who had referred to himself as "LA."
The police then went to the Academy Inn to look for the defendant, who was known to have been staying there. Detective Brian Donahue accessed the hotel's security cameras and reviewed the video footage from around the time of the incident. From the video, the police determined that the defendant entered room 17 after the shooting. The police went to the room and tried the door handle, but the door did not open. They also tried calling the defendant by phone, but he did not answer. The police then knocked on the door and announced, "Brockton police." The defendant responded, "hold on," and the officers could hear "shuffling behind the door, footsteps."
Once the door opened a couple of inches, the police entered the room. They observed a female inside with the defendant. The police pat frisked the defendant and then placed him in handcuffs. The police observed ammunition stored inside a cigarette container on a table. After obtaining a search warrant, the police found a .22 caliber gun that was loaded and stored above one of the ceiling tiles. The police also found two prescription bottles with the defendant's name and a T-Mobile cell phone. When Detective Donahue dialed the phone number he had for the defendant, the T-Mobile cell phone indicated, on silent mode, that a call was being received.
Discussion. 1. Missing witness instruction. The defendant argues that the judge erroneously denied his request for a missing witness instruction. We disagree.
At trial, the Commonwealth introduced police testimony that the victim's cousin, Hamilton, had been shot as a result of the incident, and submitted Hamilton's medical record from Brockton Hospital. The Commonwealth also introduced testimony that the victim's friend Bradley suffered from gunshot wounds in his arms. Bradley's medical records were also admitted in evidence. The Commonwealth also presented photographs taken by police of Hamilton's and Bradley's injuries. Neither Hamilton nor Bradley testified at trial.
Hamilton's medical record was submitted as Exhibit 10.
"We review a judge's decision to give or not give a missing witness instruction under the abuse of discretion standard." Commonwealth v. Williams, 450 Mass. 894, 901 (2008). "A missing witness instruction is appropriate when a party has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case, and the party, without explanation, fails to call the person as a witness." Commonwealth v. Saletino, 449 Mass. 657, 667 (2007) (quotation omitted). The judge may also consider "the physical availability of the witness [,] the likelihood that he can be produced by summons or otherwise, ... whether the evidence could be produced from other sources[,] and whether the witness is equally available to either party, although there is no hard and fast rule precluding the inference from the failure to call such a witness." Williams, supra at 900 (quotations omitted).
"Whether to allow argument and give a missing witness instruction is within the discretion of the trial judge, even when the foundation requirements are met." Mass. G. Evid. § 1111, at 409 (2017) (Note to subsection [b] ).
While "the degree of [the judge's] discretion is reduced when the missing witness instruction requested would be adverse to the Commonwealth, ‘[t]he absence of constitutional concerns underlying the call for caution ... does not, of itself, remove the matter from the judge's discretion’ [footnote omitted]." Saletino, supra, quoting from Commonwealth v. Smith, 49 Mass. App. Ct. 827, 831-832 (2000). Here, as the judge stated, there was no evidence that either Bradley or Hamilton were physically available to testify. Indeed, defense counsel acknowledged at trial that the Commonwealth introduced evidence that Bradley and Hamilton were summonsed and did not appear. See Commonwealth v. Joyner, 55 Mass. App. Ct. 412, 418 (2002). The Commonwealth also presented testimony that Bradley was uncooperative and would not speak with the police. See Saletino, supra at 668.
Further, the Commonwealth in this case presented other evidence of Bradley's and Hamilton's injuries, including their medical records and several photographs taken by the police. See Commonwealth v. Tripolone, 57 Mass. App. Ct. 901, 901 (2003) (no basis for instruction if testimony is cumulative or corroborative). Moreover, even despite the lack of a missing witness instruction, the defendant was able to draw attention to the absence of Hamilton and Bradley at trial. See Commonwealth v. Anderson, 411 Mass. 279, 285 (1991). Therefore, the judge was not "manifestly unreasonable" in denying the defendant's request for a missing witness instruction, and there was no prejudicial error as a result. Saletino, supra (cautioning that missing witness instruction should only be used in "clear cases" [quotation omitted] ).
Defense counsel stated during closing argument:
"Mr. Hamilton didn't come in here and testify. Mr. Bradley didn't come in here and testify.... The next indictments are relative to Mr. Hamilton and Mr. Bradley, both of whom did not come here and didn't testify that my client shot at them."
2. Admission by party opponent. At trial, the Commonwealth introduced evidence that during a hearing on another criminal matter, the defendant corrected the assistant district attorney by stating that he was charged, in the matter now before us, with using a "military style handgun," and not "a shotgun." The judge admitted this statement in evidence as an admission by a party opponent. We reject the defendant's arguments that admitting this statement was prejudicial error.
"An admission in a criminal case is a statement by the accused ... of facts pertinent to the issue, which although insufficient in itself to warrant a conviction tends in connection with proof of other facts to establish his guilt." Commonwealth v. Lester, 70 Mass. App. Ct. 55, 61 (2007) (quotation omitted). "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. Carey, 79 Mass. App. Ct. 587 (2011) (citations omitted). We therefore review under the abuse of discretion standard.
Here, the Commonwealth introduced the defendant's statement that he was charged with using a "military style handgun" as evidence to help prove the defendant's identity as the shooter. See Commonwealth v. Healy, 393 Mass. 367, 379-380 (1984) ; Commonwealth v. Avila, 454 Mass. 744, 766-767 (2009). See also Commonwealth v. Bresilla, 470 Mass. 422, 436 (2015) ("Evidence is relevant if it has a rational tendency to prove a material issue" [quotation omitted] ). Also, as significant here, any ambiguity in the defendant's statement goes to the weight of the evidence, "which is a matter reserved for the jury." Avila, supra at 767, citing Commonwealth v. Cowels, 425 Mass. 279, 285-286 (1997). Further, there was no prejudicial error because this admission did not hinder the defendant's ability to argue his theory of defense that another person did the shooting, and because the Commonwealth presented overwhelming circumstantial evidence of the defendant's identity as the shooter. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
For example, the Commonwealth presented evidence that the victim identified the defendant as the shooter and that the officers were able to match the shell casing found at the scene to the .22 caliber handgun found in the defendant's hotel room.
3. Prosecutorial misconduct. The defendant argues that the prosecutor made several prejudicial errors in her closing argument. We disagree.
We determine whether a prosecutor's improper statements made during closing argument require a new trial by considering: "(1) whether the defendant seasonably objected; (2) the judge's instructions to the jury; (3) the centrality of the error; (4) the jury's ability to sort out excessive claims by the Commonwealth; and (5) the strength of the Commonwealth's case." Commonwealth v. Ruiz, 442 Mass. 826, 835 (2004).
Despite the defendant's argument, the prosecutor did not improperly vouch for the police officers' credibility. See Commonwealth v. Raposa, 440 Mass. 684, 696 (2004) (prosecutor "may not explicitly or implicitly vouch to the jury that he or she knows that the witness's testimony is true" [quotation omitted] ). Here, the prosecutor's comment was an appropriate response to defense counsel's closing argument, attacking the credibility of the Commonwealth's witnesses. See Commonwealth v. Brewer, 472 Mass. 307, 315 (2015).
The prosecutor stated, "I suggest to you[,] you heard from professional witnesses, who I suggest to you conducted a fair and thorough investigation."
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Also, the prosecutor's statements that the victim was "helpless and bleeding on the ground" and that "their bodies [the victim, Hamilton, and Bradley] [were] riddled with bullet holes" were fair inferences drawn from the evidence or, at worst, merely amounted to "excusable hyperbole." Commonwealth v. Camacho, 472 Mass. 587, 607 (2015) (quotation omitted).
Furthermore, there was no prejudicial error as a result of the prosecutor's statements. "Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). Here, the judge instructed the jury that closing statements are not evidence, that the police officers' testimony is not entitled to greater or lesser weight, and that the jury were not to be swayed by emotion or sympathy. "The jury have the ability to discount hyperbole and other improper statements, ... and trial judge's instructions are generally adequate [to] cure errors in the arguments." Camacho, supra at 609 (quotation omitted). We presume that the jury followed the judge's instructions. Commonwealth v. Maynard, 436 Mass. 558, 571 (2002).
Judgments affirmed.