Opinion
No. 14–P–1407.
08-05-2016
COMMONWEALTH v. Trevor HIGGINS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was charged with murder, in violation of G.L. c. 265, § 1, and unlawful possession of a shotgun, in violation of G.L. c. 269, § 10(h). After a jury trial in the Superior Court, he was convicted of second-degree felony murder and unlawful possession of a shotgun. The defendant appeals his convictions, arguing that (1) in-court identifications of the defendant by two witnesses should not have been admitted; (2) identifications of the defendant in a still image from a surveillance recording by two different witnesses should not have been admitted; (3) two out-of-court statements by a co-conspirator should not have been admitted; and (4) the prosecutor's closing argument misstated the evidence, improperly took advantage of excluded evidence, and was based on facts not in evidence. We address each argument in turn and, ultimately, affirm.
Background. We set forth the facts a jury could have found viewing the evidence in the light most favorable to the Commonwealth.
On November 12, 2009, Gregory Knight, Jr., arranged for the victim, Carl Bonnie, to meet him at his father's apartment on Clifford Street in the Dorchester section of Boston at 10:30 A.M. Before the meeting, Gregory and another person arrived at the apartment. Gregory yelled up to his father's girlfriend, Meekah Scott, to let them in. Gregory told Scott that he was at the apartment to make a “connect,” to meet someone there to buy drugs. Eventually, Scott left the apartment.
We will refer to Gregory Knight, Jr., who was directly involved in the crime; his father, Gregory Knight, Sr., in whose apartment the crime occurred; his mother, Hopa Bailey; and his sister Hopa Knight–Glavez. To avoid confusion, we follow the convention used at trial: Gregory Knight, Jr., will be referred to by his first name; Gregory Knight, Sr., will be referred to as Gregory's father; Hopa Bailey will be referred to by her full name; and Hopa Knight–Glavez will be referred to as Hopa Knight.
Bonnie was at his girlfriend's home that morning. After receiving a text message, he told her that he was leaving to sell cocaine to “Gerila.” “Gerila” was one of Gregory's nicknames. At 10:44 A.M., Bonnie sent a text message to Gregory saying “outside.” At around this time, Scott saw Bonnie pull up outside the apartment in a silver automobile, get out of the car, and try the doorbell. Assuming that Bonnie was the man Gregory was waiting to meet, Scott told him that the doorbell did not work, and that he should just go upstairs.
In the trial transcript, this nickname appears as “Gerila.” Apparently, this is how the name was spelled in the victim's telephone. However, the defendant represents in his brief that this was a misspelling and that his nickname is actually “Gorilla.” We use “Gerila” to maintain consistency with the transcript.
In fact, he had the word tattooed on his neck.
Shortly after Bonnie entered the building, Scott heard a loud bang. Louis Williams, a roommate of Gregory's father and Scott, was in his room in the apartment at the time. He also heard the bang. He opened his door halfway and saw legs on the ground and someone holding a rifle. The door blocked his view of the face of the person holding the rifle. Either Gregory or the person with him had shot Bonnie in the head with a shotgun at close range, killing him.
The jury convicted the defendant of second-degree felony murder. When the verdict was delivered, the foreman stated that the jury found that the defendant had committed two different predicate felonies: unlawful possession of a shotgun and conspiracy to violate the controlled substance laws. The jury were specifically instructed that the predicate offense of unlawful possession of a shotgun may be proven by showing “joint or shared” possession. Thus, the jury's verdict is not a conclusion beyond a reasonable doubt that the defendant himself was the gunman.
Shortly after the gunshot, Scott saw Gregory exit the front door of the building, walking quickly and looking mad. As he left the building, Gregory said, “he just fucking popped him.” The person who had arrived at the apartment with Gregory that morning exited after a short delay. Scott identified the defendant at trial as that person. It looked to Scott like he was tucking something in his pants. Scott wanted to know what had happened in her apartment, so she followed Gregory as he walked down Clifford Street, turned left onto Blue Hill Avenue, and then turned right onto Julian Street. Scott noticed that the defendant was walking with a limp as he was walking down Julian Street, although he had not had a limp when he came into the apartment that morning. Scott walked with Gregory and the defendant as far as a brick building on Julian Street, where they all stopped. Gregory told Scott to call the police, and she returned to her apartment. When she went inside, she saw Bonnie's body on the floor.
The police obtained surveillance video recordings from three businesses on Blue Hill Avenue that recorded Blue Hill Avenue, Clifford Street, and Julian Street. A recording from before the murder showed Gregory and another man walking down Blue Hill Avenue toward Clifford Street. Anne Marie Wynter, who only knew the defendant, identified him as the other man. Dyann Tucker, who knew both Gregory and the defendant, identified them both. Video recordings from the minutes after the murder showed three persons walking on Clifford Street, on Blue Hill Avenue, and on Julian Street. Scott identified herself, Gregory, and the defendant in them.
Around 11:00 A.M., Gregory and the defendant arrived at the home of Gregory's ex-girlfriend, where she lived with her fiancé, Ariel Martinez. Martinez let them in. Gregory told Martinez that his car had broken down and he needed to use the telephone. Gregory called his sister, Hopa Knight, five times between 11:16 and 11:37 A.M. She agreed to pick him up and give him a ride. Before Gregory and the defendant left Martinez's apartment, Gregory asked for a bag. Martinez gave him a “royal bluish, purplish” nylon laundry bag.
Gregory entered Hopa Knight's car first and sat behind the front passenger's seat. Another person then entered and sat behind the driver's seat. At trial, Hopa Knight identified the defendant as that person. Gregory introduced him as “Specialist.” The defendant's nickname is “Specialist.”
One witness testified that she called the defendant “Special.”
Hopa Knight brought Gregory and the defendant to a location on Washington Street. Gregory got out. After a short time, the defendant followed him. They both then returned to the car, and Gregory directed Hopa Knight to a location on Rockland Avenue. When they arrived, the defendant got out, walked toward a dark green sport utility vehicle, and tried to start it. Hopa Knight testified that while the defendant was out of the car, she and Gregory had a conversation. As a result of this conversation, she asked her brother where the gun was located. He said that it was under her seat. Hopa Knight started yelling at Gregory and told him to get out of the car. The defendant then returned to the car and took a dark duffel bag out from under her seat.
Hopa Knight testified that her brother directed her to “Rockland Ave.” However, she later agreed that her brother directed her to “Rockland Street.”
The full conversation between Gregory and Hopa Knight included more information. First, he told her that the defendant had shot his friend at their father's apartment, and then said, “Whatever happens, tell mommy I didn't do it.” Then, after she asked where the gun was, he said that it was under her seat. The trial judge excluded the first two statements as hearsay. She allowed the testimony that Gregory had said the gun was under Hopa Knight's seat as falling into a hearsay exception. We discuss this ruling infra .
Although Martinez described the bag he gave Gregory as a “laundry bag” and Hopa Knight described the bag she saw removed from underneath her seat as a dark-colored “duffel bag,” the jury could have concluded that this was the same bag.
On November 16, 2009, Gregory was arrested at his apartment in Lewiston, Maine. When police performed a protective sweep of the apartment, they found the defendant hiding in a closet underneath a pile of clothes. The defendant initially identified himself by a false name. He was released the next day.
On November 20, 2009, the police returned to that apartment with an arrest warrant for the defendant. A neighbor told the police that a black male had jumped out of the window of the apartment. The police found the defendant on the fire escape of a nearby house. After he was arrested, the defendant called Anne Marie Wynter. He told her that he had been arrested for a murder and that she was his alibi.
The defendant did not testify or present any evidence at trial. Instead, he relied on pointing out the flaws in the Commonwealth's case through cross-examination. He argued that Gregory had set up the murder, and Gregory's family members and acquaintances had coordinated their testimony to set him up as the person who pulled the trigger.
Discussion. 1. In-court identifications by Meekah Scott and Hopa Knight. The defendant argues that the in-court identifications by Scott and Hopa Knight should have been suppressed. In light of the applicable law, we disagree.
The Supreme Judicial Court has recently made significant changes to the law concerning the admissibility of in-court identifications. See Commonwealth v. Crayton, 470 Mass. 228 (2014) ; Commonwealth v. Collins, 470 Mass. 255 (2014). Of relevance here, “where a witness before trial has made something less than an unequivocal positive identification of the defendant during a nonsuggestive identification procedure, we shall ... admit the witness's in-court showup identification of the defendant only where there is ‘good reason’ for it.” Id. at 265.
The defendant argues that the out-of-court identifications by Scott and Hopa Knight were both “something less than an unequivocal positive identification,” and thus their in-court identifications should have been excluded under Collins. The Supreme Judicial Court, however, has recently stated explicitly that the rules in Crayton and Collins do not apply to trials that commenced before December 17, 2014, the date the two opinions were issued. See Commonwealth v. Bastaldo, 472 Mass. 16, 30–31 (2015) (“Because the defendant's trial took place before the issuance of Crayton and Collins, those prospective rules do not apply in this case”). This holding did not rely on the fact that the defendant's objection to the in-court identification was unpreserved.
The defendant also argues that the pre-Collins rules on the admissibility of in-court identifications were violated in that the in-court identifications of the defendant were themselves essentially one-person showups and were unduly suggestive.
Crayton, however, summarized the prior rules about in-court identifications as follows: “[W]e have excluded an in-court identification only where ‘it is tainted by an out-of-court confrontation ... that is “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” ‘ In essence, we have excluded in-court identifications only where their inherent suggestiveness is magnified by the impermissible suggestiveness of an out-of-court identification.” Crayton, supra at 237–238 (citations omitted).
The defendant does not contend that there were suggestive pretrial identifications, and does not challenge the judge's findings that there were not. In essence, he objects instead to the mechanism of in-court identification in which a witness is asked to identify the defendant sitting at the defendant's table—in this case, the only African–American at the table, flanked by two white lawyers.
While there is obvious strength to this objection, see Crayton, under the applicable pre-Collins law by which we are bound, this type of in-court identification was permissible. “An in-court identification was admissible in the absence of any prior out-of-court confrontation.” Bastaldo, supra at 31. We are without power to apply Crayton to this case.
2. Identification in surveillance video recording still photograph. The defendant argues that the testimony by Dyann Tucker and Anne Marie Wynter identifying him as the person walking with Gregory in the still photograph from the surveillance recording should not have been admitted. He objected to Tucker's testimony, but did not object to Wynter's. Accordingly, we review both to determine if there was an error and, if we find errors, we review Tucker's testimony for whether it was prejudicial, Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), and Wynter's testimony for whether it created a substantial risk of a miscarriage of justice, Commonwealth v. Vazquez, 69 Mass.App.Ct. 622, 629–630 (2007).
“The general rule is that a ‘witness's opinion concerning the identity of a person depicted in a surveillance photograph is admissible if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury.’ Commonwealth v. Pleas, 49 Mass.App.Ct. 321, 326 (2000), quoting from United States v. Farnsworth, 729 F.2d 1158, 1160 (8th Cir.1984). ‘Put another way, “such testimony is admissible ... when the witness possesses sufficiently relevant familiarity with the defendant that the jury cannot also possess.’ “ Id. at 326–327, quoting United States v. Jackman, 48 F.3d 1, 4–5 (1st Cir.1995). If the witness lacks such familiarity, it is the province of the jury to draw their own conclusions regarding the identity of the person depicted without the witness's assistance. See Commonwealth v. Austin, 421 Mass. 357, 366 (1995) ; Commonwealth v. Nassar, 351 Mass. 37, 41–42 (1966), S.C., 354 Mass. 249 (1968), cert. denied, 393 U.S. 1039 (1969), quoting Commonwealth v. Sturtivant, 117 Mass. 122, 137 (1875).” Commonwealth v. Vacher, 469 Mass. 425, 441 (2014).
This existing precedent on the admissibility of testimony identifying individuals in surveillance photographs requires that we reject the defendant's argument that these identifications should be analyzed in the same way as a showup.
There was ample basis for concluding that both these witnesses were more likely to correctly identify the defendant from the photograph than the jury. Tucker testified that she had known Gregory for several years, that he had introduced her to the defendant in around September, 2009, and that she had a sexual relationship with the defendant. Wynter testified that she had known the defendant since around April, 2009, when she brought him clothes and money at a homeless shelter in Boston. For around six weeks after that, the defendant would regularly go to Wynter's house during the day. We conclude that there was no error in admitting the testimony from Tucker and Wynter identifying the defendant in the photograph.
Insofar as the defendant argues that the photograph was so blurry that Tucker and Wynter could not have identified him in it, this argument goes to the weight of the evidence rather than its admissibility. The blurriness was mentioned during either the direct examination or cross-examination of both witnesses. The photo was also admitted in evidence. The jury were entitled to weigh the testimony of these witnesses in light of their assessment of the clarity of the photo.
3. Gregory Knight, Jr.,'s out-of-court statements. The defendant argues that three different out-of-court statements by Gregory were improperly admitted: (1) Gregory's statement to Scott that “he just fucking popped him”; (2) Gregory's introduction of the defendant to Hopa Knight as “Specialist”; and (3) Gregory's statement to Hopa Knight that the gun was under her seat. The defendant lodged both evidentiary and constitutional objections to the admission of these statements. We address each in turn.
a. “[H]e just fucking popped him. ” The defendant objected to the admission of Gregory's statement to Scott on the ground that it was inadmissible hearsay and that its admission violated his rights under the confrontation clause. Accordingly, we review to determine both whether there was evidentiary error, and if so, whether the error was prejudicial, see Commonwealth v. Flebotte, 417 Mass. at 353, and whether there was constitutional error, and if so, whether the error was harmless beyond a reasonable doubt, see Commonwealth v. Carr, 464 Mass. 855, 875 (2013). “Where a defendant claims that the admission of an out-of-court statement violates his rights under the confrontation clause, we undertake a two-step inquiry. First, we examine whether the statement is admissible under ordinary evidence rules, ‘i.e., whether it qualifies as a hearsay exception.’ Commonwealth v. Nesbitt, 452 Mass. 236, 243 (2008), quoting Commonwealth v. Burgess, 450 Mass. 422, 431 n. 6 (2008). If it is admissible pursuant to a hearsay exception, we then consider ‘whether admission of the statement is prohibited by the confrontation clause of the Sixth Amendment.’ Commonwealth v. Linton, 456 Mass. 534, 548 (2010).” Commonwealth v. Irene, 462 Mass. 600, 609 (2012).
First, we conclude that the trial judge did not abuse her discretion in determining that Gregory's statement to Scott fell into the excited utterance exception to the hearsay rule. Commonwealth v. Linton, 456 Mass. 534, 548 (2010) (“In determining whether a statement is admissible as an excited utterance, we afford the trial judge broad discretion and reverse only for an abuse of that discretion”). A statement is an excited utterance if there is an event “sufficiently startling to render inoperative the normal reflective thought process of the observer,” and the statement was “a spontaneous reaction to the occurrence or event and not the result of reflective thought.” Commonwealth v. Santiago, 437 Mass. 620, 623 (2002). The shooting of Bonnie was sufficiently startling to meet the first of these requirements. See Commonwealth v. Irene, supra at 607 (“We have viewed the circumstances of being shot, or witnessing a shooting, as sufficiently startling to impede normal reflective thought processes”). We do not think that the trial judge abused her discretion in concluding that the second requirement was met. Gregory made the statement as he exited the building, which was a “short period of time” after the gunshot. See Commonwealth v. Linton, supra at 549 (“We set ‘no definite and fixed limit of time’ beyond which the declarant's utterance may no longer be considered to be made under the influence of the shocking event; ‘[e]ach case must depend upon its own circumstances,’ “ quoting from Commonwealth v. DiMonte, 427 Mass. 233, 239 [1998] ). Scott testified that at the time he made the statement, Gregory was walking quickly and looked mad. Compare ibid. (twenty minutes between startling event and statement is not too long, where the declarant remained affected by the event).
Second, we determine that Gregory's statement was not testimonial and thus its admission did not violate the confrontation clause. Commonwealth v. Gonsalves, 445 Mass. 1, 3 (2005) (confrontation clause bars the admission of “testimonial out-of-court statements”). A statement is “per se testimonial” if it is “part of an affidavit, deposition, confession, or prior testimony at a preliminary hearing, before a grand jury, or at a former trial, or if it was procured through law enforcement interrogation (which does not include emergency questioning by law enforcement to secure a volatile scene or determine the need for or provide medical care).” Id. at 13. In determining whether a statement that is not per se testimonial is testimonial in fact, “[t]he proper inquiry ... is whether the declarant intends to bear testimony against the accused. That intent, in turn, may be determined by querying whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime.” Id. at 12, quoting from United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004).
Gregory's statement to Scott did not fall into any category of statements that are testimonial per se. We agree with the trial judge that it was not testimonial in fact. Gregory did not intend to bear witness against the defendant, rather, he simply intended to explain to Scott what had happened in her apartment a short time after a loud gunshot. See Commonwealth v. Linton, supra at 550 (“There is nothing in the record to suggest that the victim made the statements at issue for any other purpose than to explain to her father what had happened”). While Gregory later told Scott to call the police, the evidence indicates that he did so because there was a dead body in her apartment, not because he intended her to repeat his statements to them. Compare ibid. (“There is no evidence that the victim reported the assault to the police or sought a protective order against the defendant under G.L. c. 209A, or that she asked her father to do so”) with Commonwealth v. Whitaker, 460 Mass. 409, 422–423 (2011) (“Detective Kelly testified that he had received a police dispatch saying that an ambulance had pulled over after the person they were transporting had said that he had possibly killed someone.... We conclude that the dispatcher's report was ... not testimonial in the circumstances”).
b. Introduction as “Specialist. ” The defendant argues that Hopa Knight's testimony that Gregory introduced the defendant as “Specialist” was hearsay and that its admission violated the defendant's rights under the confrontation clause of the Sixth Amendment to the United States Constitution. The defendant objected to this testimony at trial without stating a ground. During a pretrial hearing, the defendant argued against the admissibility of the statement on evidentiary grounds without raising a constitutional objection. Thus, we conclude that any claim of constitutional error was not preserved. See Commonwealth v. Burgess, 450 Mass. 422, 431 (2008) (“The defendant did not object on the basis of the confrontation clause either in pretrial hearings or at trial. He thus failed to preserve a challenge to the February statements on constitutional grounds”). Accordingly, we review the claimed evidentiary error for prejudice and the claimed constitutional error for whether it created a substantial risk of a miscarriage of justice. We conclude that the evidence was properly admitted, both under the rules of evidence and the constitution.
Hopa Knight testified that Gregory introduced the defendant “as Specialist,” that she said “hi” to him, and he said “hi” back. Gregory's statement was hearsay. The fact that he introduced the defendant “as Specialist” was offered for the truth of the matter asserted—that the defendant was called “Specialist.” Commonwealth v. Purdy, 459 Mass. 442, 452 (2011) (“An out-of-court statement is hearsay where it is offered in evidence to prove the truth of the matter asserted”). However, Gregory's statement fell into the exception to the hearsay rule for adoptive admissions. See Commonwealth v. Babbitt, 430 Mass. 700, 705 (2000. The defendant was present when he was introduced as “Specialist” and did not correct Gregory. He then exchanged greetings with Hopa Knight. See Commonwealth v. Grenier, 415 Mass. 680, 689 (1993) (holding that “defendant's response [to an accusation], dropping his head, saying no, pausing, and then denying involvement, was not necessarily an admission by silence but rather could be seen collectively as an admission by word and deed”). See also United States v. Wiseman, 814 F.2d 826, 828 (1st Cir.1987) (holding that “testimony as to Smith's introduction of appellant as ‘Mac,’ who was brought up from the City to put the ‘junk’ on the street” was properly admitted as an adoptive admission).
Finally, even if admission of this statement were an error, it was not prejudicial. Hopa Knight identified the defendant in court as the person who had been in her car on the day of the murder. Two other witnesses, including Wynter (who had no connection to Gregory), testified that the defendant went by the nickname “Specialist.”
c. Statement that the gun was under Hopa Knight's seat. The defendant argues that Hopa Knight's testimony that Gregory told her the gun was under her seat was hearsay and that its admission violated the defendant's rights under the confrontation clause. The defendant objected to this testimony at trial without stating a ground. During a pretrial hearing, the defendant argued against the admissibility of the statement without raising a constitutional objection. Again, we conclude that any claim of constitutional error was not preserved. See Commonwealth v. Burgess, supra. We review any evidentiary error for prejudice and any constitutional error for whether it created a substantial risk of a miscarriage of justice. We conclude that the evidence was hearsay that did not fall into the coventurer exception to the hearsay rule. However, we also conclude that the admission of this testimony did not prejudice the defendant. We necessarily also conclude that it did not create a substantial risk of a miscarriage of justice.
Both parties agree that the statement was hearsay. The issue is whether it falls into the hearsay exception for the statements of coventurers. “Out-of-court statements by joint venturers are admissible against the others if the statements are made during the pendency of the criminal enterprise and in furtherance of it.” Commonwealth v. Carriere, 470 Mass. 1, 8 (2014), quoting from Commonwealth v. Burton, 450 Mass. 55, 63 (2007). “Before statements by coventurers may be admitted, the Commonwealth first must establish the existence of the joint venture (and the defendant's involvement in it) by a preponderance of the evidence, independent of the out-of-court statements.” Commonwealth v. Carriere, 470 Mass. at 8.
There was sufficient evidence from which both the judge and the jury could conclude that Gregory and the defendant were joint venturers. However, the trial judge erred in concluding that the statement was made in furtherance of that venture.
First, contrary to the Commonwealth's argument, Commonwealth v. Hardy, 431 Mass. 387, 393–394 (2000), does not hold that a statement “describing the efforts to conceal evidence of the murder weapon” is in furtherance of a joint venture. Rather, it holds that a confession made while asking for new clothing, for help finding a place to go, and for advice about getting rid of a murder weapon is in furtherance of a joint venture. This statement did not fall into any of those categories.
Second, there was insufficient evidence to establish that Gregory was enlisting Hopa Knight to help him and the defendant escape or using her to help them get the gun away from the scene. At the time of the statement, she had already driven them to their destination at Rockland Street. There was no evidence that they were going to ask her to take them anywhere else.
Third, there was no evidence indicating that Gregory made this statement for the purpose of intimidating Hopa Knight into silence. Her testimony established that, after Gregory stated that there was a gun under her seat, she yelled at him and told him to get out of the car. Compare Commonwealth v. Wood, 469 Mass. 266, 278–281 (2014) (“[T]he jury could have concluded that Butler was attempting to frighten DaSilva and ensure that she did not speak to the police, given that she was one of only two people who could implicate him in the murder.... DaSilva testified that she was in fact frightened by Butler's statements, that she delayed speaking honestly to the police due to her fear, and that she even considered committing suicide. Indeed, even after Butler and the defendant were arrested, they telephoned and spoke to DaSilva in an effort to keep her from speaking to the police”).
The fact that Gregory's statement was not made with the purpose of intimidating his sister becomes even more clear when considered in light of the other contemporaneous statements he made that the jury were not permitted to hear. He told her that the defendant had shot his friend at their father's apartment, and then said, “Whatever happens, tell mommy I didn't do it.” He told his sister that the gun was under her seat only after she asked him where it was. The evident purpose of these statements was to let his sister and other family members know what had happened and, perhaps, to deflect blame from himself. Accomplishing that purpose did not further his joint venture with the defendant. See Commonwealth v. Bright, 463 Mass. 421, 433 n. 16 (2012), quoting from Commonwealth v. Bongarzone, 390 Mass. 326, 340 n. 11 (1983) ( “ ‘[C]onfessions or admissions of conspirators or joint venturers' to strangers or third parties unsympathetic to the goals of the venture ‘are not admissible ... as vicarious statements of the other members of the conspiracy or joint venture’ ”). Thus, admission of the statement was error.
In assessing whether an error was prejudicial, we “consider ‘whether there is a reasonable possibility that the error might have contributed to the jury's verdict.’ “ Commonwealth v. Carriere, supra at 7, quoting from Commonwealth v. Alphas, 430 Mass. 8, 23 (1999). We conclude that there was no such possibility here.
First, there is no reasonable possibility that the error contributed to the conviction for second-degree felony murder. The judge instructed the jury on two possible predicate felonies: unlawful possession of a shotgun and conspiracy to violate the controlled substance laws. The jury found that both of the predicate felonies had occurred. Thus, the jury concluded that the defendant had entered a conspiracy to distribute a controlled substance or to possess a controlled substance with the intent to distribute it, that Bonnie's death occurred as he was participating in this conspiracy, and that the defendant engaged in the conspiracy with a conscious disregard for the risk to human life. There is no reasonable possibility that Gregory's statement, made roughly an hour after the crime, that there was a gun under Hopa Knight's seat contributed to the jury's findings on any of these points, given the other strong evidence that Gregory, the defendant, and Bonnie had met to do a drug deal and that Bonnie had been shot during this deal.
Second, there is no reasonable possibility that the error contributed to the conviction for unlawful possession of a shotgun. As noted, the jury convicted the defendant of second-degree felony murder with unlawful possession of a shotgun as a predicate offense. Thus, the jury must have concluded that the defendant committed the crime of unlawful possession of a shotgun during the murder of Bonnie. We do not think that there is a reasonable possibility that the jury only concluded that the defendant possessed the shotgun at the time of the murder because of the evidence that he possessed the shotgun an hour later in Hopa Knight's car, especially given Scott's testimony that she saw the defendant tucking something into his pants as he exited her building and the judge's instruction about “joint or shared” possession.
Since we find no prejudice, we need not address the claimed constitutional error. The defendant's objection on confrontation clause grounds was not preserved, and an error that does not create prejudice cannot create a substantial risk of a miscarriage of justice. See Commonwealth v. Douglas, 75 Mass.App.Ct. 643, 653 n. 13 (2009) (describing the substantial risk standard as “less demanding” than the prejudicial error standard).
4. Commonwealth's closing argument. The defendant asserts that the prosecutor's closing argument was improper in several different respects. We address the defendant's arguments in turn.
a. Misleading the jury about Gregory's plea deal. Two and one-half weeks before the defendant's trial, Gregory, whom the grand jury had also indicted for murder, pleaded guilty to manslaughter. The defendant requested that the judge instruct the jury about Gregory's plea. The judge denied the request on the ground that this was a factual matter and was irrelevant. The defendant points to several portions of the closing argument where, he claims, the prosecutor misled the jury about Gregory's fate.
First, the prosecutor argued that Gregory's family members and friends had actually done him a disservice by identifying him in photographs.
“And you have to keep in mind, and when we get to the part about ... what the defendant and what Gregory Knight, Jr. are guilty of, you're going to hear that what they're doing is they're putting Gregory Knight, Jr., right into the middle of this murder by picking him out of these photographs. So there's no conspiracy here to try to help Gregory Knight, Jr., out. They're identifying him through these photos.”
Second, the prosecutor argued at least four times that, under the law, both the defendant and Gregory were guilty of murder. He told the jury, “you bet Gregory Knight, Jr., is guilty of murder in this case because he was there with this guy,” “[w]hether he's the shooter or not the shooter, Gregory Knight, Jr., is guilty of murder, could be found guilty of murder,” “they're both responsible for second degree felony murder,” and “both Gregory Knight, Jr., and the defendant, Trevor Higgins, can be guilty of first-degree felony murder under a theory of extreme atrocity or cruelty if they were part of a joint venture and they shared the same intent.”
At the end of the closing argument, the defendant objected that the prosecutor had distorted the facts by (1) arguing that Hopa Bailey was putting her son at risk by identifying him in the surveillance photograph, and (2) arguing the Gregory was certainly guilty of murder. The judge did not state on the record whether she sustained or overruled these objections. During the charge, the judge gave the standard instruction that closing arguments are not evidence and specifically instructed the jury, “Among the evidence you heard was that [Gregory] was arrested and charged with the murder of Carl Bonnie. You must not speculate as to the status of that charge or of any other charge against Gregory Knight, Jr. His status, and the status of any charges against him, are completely irrelevant to your determination on the charges against this defendant.”
i. Putting Gregory in the middle of the murder. The defendant argues that the assertion that Gregory's family members had put him “right into the middle of this murder by picking him out of these photographs” was misleading. He contends that this argument implied that Gregory's family members were more credible because they were testifying against Gregory's interest when, in fact, he had already pleaded guilty to manslaughter and could not be tried for murder. The defendant only objected to this argument as it applied to Hopa Bailey at trial. Accordingly, we review that aspect of the argument for prejudicial error and the rest for whether it created a substantial risk of a miscarriage of justice.
This is the defendant's term.
The only family member of Gregory who testified at trial and made an identification of Gregory from a photograph was Hopa Bailey. Meekah Scott, who was not a family member but was Gregory's father's girlfriend, also testified. We will assume that the defendant's argument was intended to apply to her testimony as well, as Scott testified that Gregory was like a son or stepson to her. She made an identification from the surveillance video recording. Hopa Bailey testified that one of the surveillance still photographs depicted Gregory. She had first made the identification two days prior to her testimony. The defendant is correct that by the time she made this identification, Gregory had already pleaded guilty. Scott identified Gregory and the defendant in a series of surveillance videos showing Clifford Street, Blue Hill Avenue, and Julian Street in the minutes before and after the shooting. She had first seen the surveillance recordings within two months prior to her testimony and had watched them again the previous week. The record does not make clear when she first made identifications from the recordings. We will assume for the purposes of our decision that it was after Gregory pleaded guilty.
The defendant is therefore correct that the prosecutor's argument was misleading insofar as it implied that the witnesses' identification of Gregory in surveillance stills was more credible because it was contrary to Gregory's interests. Nevertheless, the error did not prejudice the defendant.
There was evidence that both witnesses told the police about events that incriminated both the defendant and Gregory within a month of the murder. Scott testified that Gregory and the defendant came to her apartment on the morning of the homicide, were in the apartment when she heard a loud bang, and then exited the house. She gave consistent testimony to the grand jury and at a pretrial hearing, long before Gregory pleaded guilty. She testified on redirect examination about giving consistent testimony at the grand jury on December 8, 2009. Hopa Bailey testified that she told the police on December 15, 2009, that her son had introduced her to a friend called “Specialist” and she had seen them together a couple of weeks before the murder. She identified the defendant as “Specialist.” There was no question that both witnesses were familiar with Gregory.
Thus, the jury could have concluded that both witnesses implicated Gregory in the murder within a month of the event. Given that strong, true basis for drawing an inference that the witnesses' testimony was credible, the prosecutor's erroneous argument was not prejudicial. In addition, their testimony identifying Gregory in the surveillance photographs was cumulative of the testimony of Dyann Tucker, who identified both Gregory and the defendant, and Anne Marie Wynter, who identified the defendant.
ii. Claiming Gregory was guilty of murder. The defendant also argues that the prosecutor's repeated assertions that Gregory “is” or “could be” guilty of murder misled the jury, when the prosecutor knew that Gregory had already pleaded guilty to manslaughter. We interpret the prosecutor's statements as explanations of the law of joint venture based on the facts of the case, rather than factual assertions about Gregory's fate. We think the jury would have interpreted them the same way. In any case, the judge's specific instruction that the jury should not speculate about Gregory's fate cured any error, particularly in light of the overwhelming evidence of guilt. See Commonwealth v. Hooks, 375 Mass. 284, 296–297 (1978) (finding possibility of a similar incorrect inference harmless beyond a reasonable doubt).
b. Taking advantage of the exclusion of part of Gregory's out-of-court statement to Hopa Knight. The defendant also argues that the prosecutor took advantage of the exclusion of part of the statement that Gregory made to Hopa Knight in her car. The prosecutor argued:
“[Hopa Knight] stood on the witness stand and said my brother introduced [the defendant] to me as Specialist. Not, hey, by the way, this is the guy that shot somebody in dad's apartment. By the way, he's the one that pulled the trigger. He had introduced him as Specialist. What's so conspiratorial about that?”
This argument takes advantage of the fact that, at the defendant's urging, the judge had excluded Hopa Knight's testimony that Gregory also told her that the defendant had shot someone at their father's apartment. The defendant did not object on this ground after the closing. We review for whether the error created a substantial risk of a miscarriage of justice.
“A prosecutor is barred from referring in closing argument to matter that has been excluded from evidence, Commonwealth v. Burke, 373 Mass. 569, 575 (1977), and a prosecutor should also refrain from inviting an inference from the jury about the same excluded subject matter.” Commonwealth v. Carroll, 439 Mass. 547, 554 (2003), quoting from Commonwealth v. Grimshaw, 412 Mass. 505, 508 (1992). This rule is applied particularly stringently when the prosecutor exploits the absence of evidence excluded at his own request, which was not the case here. See Commonwealth v. Harris, 443 Mass. 714, 732 (2005) (“Counsel may not, in closing, ‘exploit[ ] the absence of evidence that had been excluded at his request.’ Commonwealth v. Carroll, 439 Mass. 547, 555 [2003]. Such exploitation of absent, excluded evidence is ‘fundamentally unfair’ and ‘reprehensible.’ Commonwealth v. Haraldstad, 16 Mass.App.Ct. 565, 568 [1983] ”).
The prosecutor's argument was improper. The jury were not aware that Hopa Knight had not been permitted to testify in full about her conversation with Gregory. The prosecutor's argument asked the jury to draw the false inference that Gregory had not told her that the defendant shot someone in their father's apartment and he was the one who pulled the trigger. We conclude, however, that “given the strength of the Commonwealth's case and the collateral nature of the ... evidence, the prosecutor's misconduct did not create a substantial risk of a miscarriage of justice.” Commonwealth v. Carroll, supra at 555.
c. Misstating the evidence about whether witnesses had seen the surveillance video. The defendant argues that the prosecutor misstated the evidence when he argued that “no witness was shown that [surveillance] video until we started this trial” and that “we're not showing those photos until the trial starts.” The defendant objected that the prosecutor had “distort[ed] the evidence,” and requested that the judge, as a remedy, instruct the jury that it is for them to determine the facts.
The judge granted this request. Thus, we review for whether the argument, considered in light of the curative instruction, created a substantial risk of a miscarriage of justice. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005) (“[A]s matters stood, the judge could not know that the defendant considered the curative instruction inadequate, and had no opportunity to clarify further if necessary. Accordingly, we must determine whether any error created a substantial risk of a miscarriage of justice”).
The defendant argues that the prosecutor misstated the evidence, as Scott, Tucker, and Wynter had all testified that they had been shown the surveillance video or stills prior to trial. The defendant is right about Scott and Wynter. Scott testified that the first time she saw the surveillance videos was within a month or two before her testimony, and that she had also been shown the videos the previous week. Wynter testified that she had identified the defendant in a surveillance still “[a]t some point over the course of the last few weeks or few months.” The date was later specified as September 27, 2013. By contrast, at trial, Tucker agreed that she had been shown a picture that morning. The trial had been underway for over a week at that point. Thus, we do not think the prosecutor's statement that the witnesses had not been shown the photos until the trial started was erroneous as applied to Tucker.
Given the curative instruction, we do not think the misstatement of evidence with respect to Scott and Wynter created a substantial risk of a miscarriage of justice. From the evidence at trial, the jury knew that Wynter identified the defendant in the still when she first saw it, even if that date was over a month before trial, and that Scott had been giving testimony consistent with the contents of the surveillance videos long before she saw them. We do not think that the assertion that the witnesses had seen the stills and video for the first time at trial “materially influenced the verdict.” Commonwealth v. Randolph, 438 Mass. 290, 298 (2002).
d. Argument about the defendant's shoes unsupported by the evidence. The defendant claims that the prosecutor argued facts not in evidence when he pointed out that, “if you compare a still from the surveillance video with a picture of the defendant taken after the murder, their shoes are scuffed in the same place.” We disagree. Both photos were in evidence. The prosecutor was permitted to argue that the similar scuff marks support the inference that the individuals in these photos were identical.
5. Cumulative errors. The defendant has pointed out that a number of errors occurred during his trial, the majority of which were concentrated in the prosecutor's closing argument. Even when no single error creates a substantial risk of a miscarriage of justice, a combination of multiple errors can do so. See Commonwealth v. Cancel, 394 Mass. 567, 576 (1985).
The question is close, but we conclude that, even in light of these errors, we do not have “a serious doubt whether the result of the trial might have been different had the error[s] not been made.” Commonwealth v. Randolph, supra at 297. The case against the defendant was overwhelming. We think it beyond doubt that the jury would have found the defendant guilty, even had the judge excluded the hearsay testimony about the gun in the car, and even had the prosecutor kept his closing argument within permissible bounds.
Conclusion. For the foregoing reasons we affirm the judgments.