Opinion
13-P-1401
02-27-2015
COMMONWEALTH v. MCKENZIE GUILLAUME (and four companion cases).
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 defendants were tried before a jury on charges stemming from an unprovoked attack on the victim while he was at a roller skating rink. All five defendants were convicted of assault and battery; in addition, all but Guillaume were convicted of assault and battery by means of a dangerous weapon. The defendants argue that (1) the judge erred in allowing a police officer to testify about the defendants' and victim's gang affiliations; (2) the judge erred in allowing a police officer to identify the defendants in the surveillance videos; (3) there was insufficient evidence to support the convictions of defendants Woodley and Bobby Fullard; (4) the judge's failure to give a separate and distinct act instruction sua sponte resulted in a substantial risk of a miscarriage of justice; (5) in his closing argument, the prosecutor impermissibly commented on the defendants' right to remain silent, narrated facts not in evidence, and improperly appealed to juror sympathy; and (6) the judge abused his discretion by imposing additional security measures in the court room. We affirm.
1. Gang affiliation evidence. Defendants Woodley, Bobby Fullard, Ottley, and Guillaume argue that the officer's testimony concerning gang affiliations was irrelevant.
"We repeatedly have held that evidence of gang affiliation is admissible to show motive or joint venture, and have given deference to judges' determinations in that regard." Commonwealth v. Swafford, 441 Mass. 329, 332 (2004). Gang evidence is "most often" admitted "for the purpose of establishing joint venture in cases where the evidence showed that the offense involved retaliation or conflict between rival gang members, and that the defendants therefore shared a common motive." Commonwealth v. Akara, 465 Mass. 245, 268 (2013).
The evidence here was probative of both joint venture and motive for an "otherwise inexplicable" and "apparently random" crime. Commonwealth v. Gray, 463 Mass. 731, 752 (2012). As shown in the surveillance videos, the victim was set upon by the defendants in a coordinated manner without any apparent reason. Moreover, the evidence helped explain the victim's uncooperative behavior, including his patently untrue trial testimony that he was not present on the night of the attack. See Commonwealth v. Leng, 463 Mass. 779, 783 (2012). Contrary to the defendants' arguments, our cases do not require detailed evidence of the nature of the feud between rival gangs before gang-related evidence becomes admissible. See id. at 782 (gang evidence admissible even though only defendant, not victim, belonged to a gang).
The judge laudably minimized the risk of any prejudice that might arise from the testimony concerning gangs by addressing the topic during voir dire of the prospective jurors and by giving specific cautionary instructions during the trial. See Commonwealth v. Leng, supra at 783. See also Commonwealth v. Swafford, supra at 333. Contrary to Guillaume's and Fullard's argument, we see no error or risk of confusion in the judge's cautionary instructions.
Defendants Woodley, Ottley, Guillaume, and Ronney Fullard argue that the officer's testimony concerning his knowledge and experience of the two gangs at issue was expert testimony impermissibly disguised as lay testimony. There is no requirement that evidence of gang affiliation be introduced through an expert. See Commonwealth v. Akara, supra at 266 (introducing gang evidence through both expert and lay witnesses). Nor is there anything to suggest that the officer here was testifying as an expert witness; police officers may testify as lay witnesses where, as here, their testimony is based upon their own personal observations. See Commonwealth v. Canty, 466 Mass. 535, 541 (2013). Although a prosecutor may risk transforming the police officer from a lay witness to an expert witness by eliciting testimony drawing on the officer's special training or experience, id. at 541 n.5, no such transformation occurred here. Compare Commonwealth v. Smiley, 431 Mass. 477, 482 (2000), and Commonwealth v. Smith, 450 Mass. 395, 399 (2008), with Commonwealth v. Wolcott, 28 Mass. App. Ct. 200, 207 (1990).
2. Identification testimony. The defendants argue that the judge should not have permitted Officer Medina to identify the defendants in the surveillance videos. "The general rule is that a 'witness's opinion concerning the identity of a person depicted in a surveillance [video] is admissible if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the [video] than is the jury.'" Commonwealth v. Vacher, 469 Mass. 425, 441 (2014), quoting from Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 326 (2000). "Put another way, 'such testimony is admissible . . . when the witness possesses sufficiently relevant familiarity with the defendant that the jury cannot also possess.'" Commonwealth v. Vacher, supra, quoting from Commonwealth v. Pleas, supra at 326-327. Here, the officer was clearly familiar with each of the defendants to a degree the jurors were not. Although he did not testify to the number of years he had known each defendant, the officer had interacted in person with each of them from fifty to one hundred times.
While it is true, as the defendants argue, that "[i]dentification testimony from a police officer who is so designated increases the potential for inappropriate prejudice to the defendant[,]" no such testimony was admitted here because the judge carefully curtailed the officer's testimony in this regard. Id. at 327. Although one of the defense attorneys asked Medina whether his title was "Officer" or "Sergeant," Medina never answered the question. Even were we to accept for purposes of argument that Medina's identification testimony was designated as coming from a police officer, its admission would nonetheless have been within the judge's discretion. The surveillance videos were neither "unmistakably clear" nor "hopelessly obscure." Id. at 325, quoting from United States v. Jackman, 48 F.3d 1, 5 (1st Cir. 1995). Rather, the tapes were discernable but "somewhat blurred." Ibid. Although the quality of the first video is better than that of the second, it is possible in both to distinguish the defendants' clothing, physique, and posture. Medina's familiarity with each defendant sufficed to enable him to identify the defendants in this at times "indistinct" footage. See Commonwealth v. Pleas, supra at 328.
This defense attorney also twice referred to Medina as "officer."
The defendants argue that, because the judge precluded the Commonwealth from bringing out the fact that Medina knew the defendants through his work as a police officer, they were prevented from cross-examining Medina about the fact that his knowledge of the defendants came from prior arrests or law enforcement encounters which, they claim, would have explained and exposed his bias. Cf. ibid. To begin with, nothing other than their own trial strategy prevented the defendants from cross-examining Medina along these lines. Had they wished, the defendants were free to elicit their own criminal histories, including all encounters (whether they resulted in arrests or not) with Officer Medina. See United States v. Jackman, supra at 6.
Moreover, the defendants' argument is based solely on United States v. Calhoun, 544 F.2d 291, 295 (6th Cir. 1976), in which the court ruled that it was an abuse of discretion to admit surveillance video identification testimony from the defendant's parole officer, because "[t]he defendant could not explore the possible motives his parole officer might harbor in positively identifying him as the robber." Ibid. Besides the fact that we have found no similar reasoning in our own cases (nor have the defendants provided any such binding authority), Calhoun appears to stand alone among the Federal courts as well. As noted in Pleas, the general view instead is to inquire whether "the probative value of the testimony outweighed any prejudicial effect and also that any limitation on cross-examination resulted from a tactical decision by the defendant." Commonwealth v. Pleas, 49 Mass. App. Ct. at 327.
3. Sufficiency of the evidence. Defendant Woodley argues there was insufficient evidence to sustain his convictions because he was not adequately identified as one of the assailants shown on the videos. Officers Ford and Medina both identified Woodley in court, and Medina identified Woodley on the videos, which were admitted into evidence. Under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979), the evidence was sufficient.
Woodley and Bobby Fullard argue that the evidence was insufficient to sustain their convictions because Dwan Knight denied being the victim of the attack. The jury could have rejected Knight's trial testimony as incredible, and was allowed to rely on the responding officer's testimony about the injuries she observed on Knight at the scene, and the fact that Knight stated his name, age, and address.
4. Separate and distinct acts. Defendants Woodley, Ronney Fullard and Ottley argue that the judge's failure to give sua sponte a separate and distinct act instruction resulted in a substantial risk of a miscarriage of justice. They contend that it is possible their convictions are duplicative and that their due process rights have been violated. "Because the defendant[s] did not raise this concern below, we review [their] claim[s] only to determine whether a substantial risk of a miscarriage of justice occurred." Commonwealth v. Gouse, 461 Mass. 787, 799 (2012).
Because assault and battery is a lesser included offense of assault and battery by means of a dangerous weapon, convictions for both crimes "are permitted only where they 'rest on separate and distinct acts.'" Id. at 798, quoting from Commonwealth v. Jackson, 80 Mass. App. Ct. 528, 529 (2011). "Different phases of a single attack can be distinguished as separate and distinct." Id. at 530. Punching, therefore, may be a separate and distinct act from kicking with a shod foot, even within the same attack. Ibid.
In the prosecutor's opening statement, he distinguished between the punching, which he described as assault and battery, and the kicking with a shod foot, which he described as assault and battery by means of a dangerous weapon. The judge also distinguished between the two separate criminal acts by instructing the jury that the assault and battery by means of a dangerous weapon charge was predicated on the use of a shod foot. Contrast Commonwealth v. Niels N., 73 Mass. App. Ct. 689, 694-696 (2009). Even assuming the judge's failure to give separate act instructions was error, the defendants have not shown that the jury were confused about which acts supported which charge, especially where the surveillance videos showing the attack were admitted in evidence. See Commonwealth v. Gouse, supra at 799. There was no substantial risk of a miscarriage of justice.
In light of our conclusion in this regard, Ottley's counsel was not ineffective for failing to request a separate acts instruction below.
5. The prosecutor's closing. Defendants Ottley, Guillaume, Bobby Fullard, and Woodley argue that the prosecutor impermissibly commented on their right to remain silent. Reading the prosecutor's closing "in light of the entire argument," Commonwealth v. Roy, 464 Mass. 818, 829 (2013), quoting from Commonwealth v. Ortiz, 463 Mass. 402, 415 (2012), it is clear that the prosecutor's statement -- "they don't choose to testify in the process truthfully" -- refers to the victim, not the defendants. The defendants did not testify; therefore, the jury could not have reasonably interpreted the statement to refer to them. Moreover, the prosecutor immediately referenced the victim's untruthful testimony after this statement ("That's why he said no").
Ottley, Bobby Fullard, and Woodley argue that the prosecutor testified to facts not in evidence by narrating what is depicted in the surveillance videos. Although prosecutors are not permitted to misstate the evidence or refer to facts not in evidence during closing arguments, Commonwealth v. Kozec, 399 Mass. 514, 516 (1987), they are entitled "to marshal the evidence and suggest inferences that the jury may draw from it." Commonwealth v. Roy, supra, quoting from Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). Here, the prosecutor did just that. There was no error in the prosecutor recounting Medina's identification testimony or in his explication of the contents of the videotapes (which were admitted in evidence). See Commonwealth v. Harris, 468 Mass. 429, 454 (2014) (prosecutor permissibly argued that defendant "scouted" the area before the murder, which was a "fair inference" based on surveillance photographs admitted in evidence and witness's identification of defendant as man in photographs).
Finally, we are unpersuaded by Bobby Fullard's argument that the prosecutor's description of the victim as "prey" improperly appealed to juror emotions. This term, while forceful, was amply supported by the events depicted in the videos. See Commonwealth v. Ruiz, 442 Mass. 826, 836 (2004).
6. Additional court room security. Ottley and Bobby Fullard argue that the judge abused his discretion by having additional court officers present on the third day of trial, and by removing one of the spectators' benches. "A trial judge has the power and a corresponding responsibility to control the 'proceedings, the conduct of participants, the actions of officers of the court and the environment of the court,' which is 'absolutely necessary for a court to function effectively and do its job of administering justice.'" Commonwealth v. Scionti, 81 Mass. App. Ct. 266, 276 (2012), quoting from Commonwealth v. O'Neil, 418 Mass. 760, 764 (1994). "When it is necessary to employ 'unusual security measures . . . the judge must balance the need for special restraints with considerations of maintenance of impartiality and proper decorum' and make appropriate findings." Commonwealth v. Scionti, supra, quoting from Commonwealth v. Hogan, 12 Mass. App. Ct. 646, 656 (1981).
The defendants objected at trial.
It is not clear that the precautions taken here are "unusual security measures" of the sort contemplated by Commonwealth v. Scionti, supra, which involved physical restraints.
Here, the judge made clear on the record that the precautions were to protect the safety of those attending the trial given misbehavior and inappropriate behavior that had been taking place in the court room. The defendants have offered no explanation why the measures were not tailored to the danger presented.
Judgments affirmed.
By the Court (Cypher, Wolohojian & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 27, 2015.