Opinion
14-P-1561
01-15-2016
COMMONWEALTH v. ALEXANDROS KORPETIS.
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 appeals from his convictions, after a jury trial in the Superior Court, of assault by means of a dangerous weapon (three counts), possession of a firearm without a firearm identification card, and discharging a firearm within 500 feet of a dwelling. We vacate in part and affirm in part.
Background. As a result of an ongoing feud, the defendant and Brian Murphy agreed to fight each other in order to settle a dispute. A little before sunset on March 3, 2013, each gathered a number of friends (roughly five for Brian and ten for the defendant) at Mattulina Park in Braintree where the defendant and Brian were to fight. Soon after the defendant and Brian squared off and began trading blows, allies from their respective sides sought to intervene and the one-on-one fight became a brawl. At one point Brian was allegedly stabbed by Tabbi-Manning.
We recite the facts as the jury might have found them.
We shall refer to Brian Murphy and his brother William Murphy by their first names to avoid confusion.
The feud originally arose from Brian's attempt to rob Jordan Tabbi-Manning of Percocet pills. The defendant and Tabbi-Manning are good friends.
The defendant and Tabbi-Manning were tried separately.
Moments later, as the fight appeared to some to be winding down, the defendant pulled out a handgun and fired a shot in the direction of Brian's brother, William. The defendant then fired two more shots in the direction of Brian and his supporters. The gunfire effectively ended the melee, sending Brian's group running in the opposite direction and ultimately prompting all participants to scatter from the park. The entire incident from punches to gunshots lasted no more than a few minutes. Although no gunshot injuries were reported, Brian required medical attention for his stab wounds.
For his actions in the park that day, the defendant was charged with three counts of armed assault with intent to murder as well as firearm offenses. Brian and his allies were given immunity in exchange for their testimony against the defendant at trial. The defendant was convicted of the firearm charges and of three counts of assault by means of a dangerous weapon as lesser included offenses of the armed assault with intent to murder charges. The defendant appeals, and we address his claims of error in turn.
Discussion. 1. Lesser included offense. The defendant contends, and the Commonwealth correctly conceded at oral argument, that the offenses of assault by means of a dangerous weapon, which the defendant was convicted of at trial, are not lesser included offenses of armed assault with intent to murder, the offenses for which the defendant was indicted. See Commonwealth v. Bright, 463 Mass. 421, 445 (2012). "Because armed assault with intent to murder and assault by means of a dangerous weapon are distinct statutory offenses, and because the defendant was indicted for the former but convicted of the latter," those convictions violate the defendant's rights under art. 12 of the Massachusetts Declaration of Rights, and "he is entitled to have [them] reduced to simple assault, a lesser included offense of both crimes." Id. at 446.
2. Inadvertent pretrial identification. Michael Connolly, an off-duty sergeant with the Boston police department, happened to be driving by Mattulina Park while the brawl was still in full swing. Believing he was seeing young teenagers engaged in a fight, Connolly turned his vehicle around to make another pass by the park so that he could direct the participants to disperse. As he got closer, however, he realized the combatants were older. By the time he rolled down his vehicle window to yell to them, he saw that the adversaries were separating into two groups going in opposite directions.
Connolly has since been promoted to lieutenant.
As the groups were separating, Connolly heard what he recognized to be a gunshot. The sound drew his attention to an individual standing about thirty or forty feet away on an unobstructed line of sight who was pointing a handgun in the direction of some of the people leaving the park. The shooter turned and started to run toward Connolly before stopping, turning back toward the fleeing parties, pointing the gun in their direction, and firing twice more. Connolly, who was unarmed at the time, watched as the shooter and others entered several vehicles. As they were driving away, Connolly telephoned 911. He attempted to follow the shooter's vehicle and note its license plate number, but the partial registration he reported could not be matched with any vehicle.
Connolly had never seen the shooter before and was not asked to view a photo array or participate in any other identification procedure prior to trial. However, earlier on the day that he testified and identified the defendant in court as the shooter, Connolly encountered the defendant in the hallway outside the court room. Connolly later testified in a voir dire on the encounter that the defendant was wearing shackles and handcuffs in the hallway but that Connolly did not notice those restraints until after he first recognized the defendant.
a. Motion to strike in-court identification. The defendant contends that this hallway encounter was so suggestive that it required that Connolly's subsequent in-court identification be struck, and he claims that the judge erred in denying his motion to strike. There was no error.
Trial in this case occurred in May, 2014, prior to the issuance of the Supreme Judicial Court's decision in Commonwealth v. Crayton, 470 Mass. 228, 241-242 (2014), which now applies to in-court identifications. The rule announced in Crayton applies prospectively and thus does not control this case.
"Under art. 12 of the Massachusetts Declaration of Rights, an out-of-court eyewitness identification is not admissible where the defendant proves by a preponderance of the evidence, considering the totality of the circumstances, that the identification is so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of his right to due process." Commonwealth v. Walker, 460 Mass. 590, 599 (2011). If a defendant demonstrates that a witness's pretrial confrontation was unnecessarily suggestive, that witness's in-court identification will be excluded unless it is "shown to have a basis independent of that confrontation." Commonwealth v. Jones, 423 Mass. 99, 109 (1996). See Commonwealth v. Odware, 429 Mass. 231, 235 (1999). We need not reach the question of an independent basis for Connolly's in-court identification, because his pretrial identification shares the hallmarks of brief, inadvertent encounters that lead to instantaneous recognition that have been held to be not unnecessarily suggestive.
In the voir dire on the defendant's motion to strike the in-court identification, Connolly testified that he recognized the defendant immediately after he came into view and only then noticed that he was handcuffed. He also clarified that he did not know that the defendant was emerging from the court house's lock-up. The judge denied the motion to strike. See Commonwealth v. Otsuki, 411 Mass. 218, 233 (1991) (in reviewing denial of motion to suppress unnecessarily suggestive identification, appellate court accepts motion judge's subsidiary findings of fact absent clear error).
Connolly's pretrial identification of the defendant "resulted from an unintentional, accidental confrontation" in which he recognized the defendant as "the individual whom he had seen on the [day] of the shooting." Id. at 234. Given the basis of Connolly's initial observations of the defendant in the park and the fleeting hallway encounter, the defendant has not shown that the "in-court identification was the product solely of a highly suggestive confrontation." Commonwealth v. Jones, 423 Mass. 99, 107 (1996). Connolly's initial observations of the defendant were focused and meaningful. He testified that he was "locked into the person with the gun." Connolly continued to visually track the shooter as the latter fled the park and, in so doing, passed right in front of Connolly's vehicle at a distance of about ten feet.
Moreover, Connolly's exposure to the defendant in the hallway was extremely brief, and he recognized the defendant before seeing any handcuffs or shackles and, despite the court house setting, before anything suggested to him that the individual he saw was the subject of criminal proceedings. The recognition of the defendant here was apparently immediate. As Connolly testified, "I seen him and said, 'Oh, wow. That's him.'" We conclude that Connolly's identification of the defendant in the hallway "did not occur in circumstances that were unnecessarily suggestive" and was not conducive to a mistaken identification. Commonwealth v. Cavitt, 460 Mass. 617, 633 (2011). The judge did not err in denying the defendant's motion to strike.
b. Misconduct and ineffective assistance. Based on the record before us, we further conclude that the defendant has not established that the prosecutor engaged in misconduct with respect to the inadvertent encounter outside the court room. The defendant cites to an exchange during the voir dire in which Connolly testified that he did not tell the prosecutor that he had seen the defendant in handcuffs and shackles. From this the defendant infers that Connolly had told the prosecutor about the encounter prior to testifying at trial but simply had not mentioned the handcuffs and shackles. However, at this point, Connolly had already testified that he and the prosecutor had briefly discussed the reason for the voir dire after Connolly's testimony during the case-in-chief. The record before us does not support the defendant's assertion that the prosecutor in fact knew of the hallway encounter prior to Connolly's trial testimony. There was no failure to disclose.
The defendant also claims ineffective assistance of counsel in connection with defense counsel's handling of the inadvertent identification. It is a "well-established principle that the preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial." Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). "Our courts strongly disfavor raising claims of ineffective assistance on direct appeal." Id. at 811. An exception to the rule exists "when the factual basis of the claim appears indisputably on the trial record." Ibid. (quotation omitted). The basis of the defendant's claim here does not appear "indisputably" on the record. We have no affidavits or testimony from trial counsel as to whether his acts or omissions were part of his trial strategy, nor do we have any findings from the trial judge as to the likely impact of any acts or omissions. Because the defendant's claim of ineffective assistance of counsel fails to appear indisputably on the record, we decline to address it.
3. Firearm operability. a. Sufficiency of the evidence. The defendant contends that there was insufficient evidence that any gun he was seen carrying was capable of being fired and that his convictions of possession of a firearm without a firearm identification card pursuant to G. L. c. 269, § 10(a), and discharging a firearm within 500 feet of a building or dwelling pursuant to G. L. c. 269, § 12E, therefore must be reversed. We disagree.
The defendant moved for required findings of not guilty on this basis at the close of the evidence. We review to determine whether the evidence, viewed in the light most favorable to the Commonwealth, could satisfy any rational trier of fact of each of the elements of the crimes charged beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). We are satisfied that, viewed in this light, there was sufficient circumstantial evidence that the defendant possessed an operable firearm in the park. See Commonwealth v. Williams, 422 Mass. 111, 120-121 (1996).
The defendant did not put on any evidence of his own.
"An essential element of the offense against G. L. c. 269, § 10(a), is that the firearm carried be a working one." Commonwealth v. Rhodes, 21 Mass. App. Ct. 968, 969 (1986). "The burden on the Commonwealth in proving that the weapon is a firearm in the statutory sense is not a heavy one. It requires only that the Commonwealth present some competent evidence from which the jury reasonably can draw inferences that the weapon will fire." Commonwealth v. Nieves, 43 Mass. App. Ct. 1, 2 (1997). The crux of the defendant's argument is that the failure to recover the firearm in question or to locate ballistic evidence at the scene precludes his firearm convictions here.
The charge of discharging a firearm within 500 feet of a dwelling also requires that the Commonwealth's proof meet the definition of a firearm in G. L. c. 140, § 121. See G. L. c. 269, § 12E.
Neither the firearm nor ballistic evidence is required. The jury can "properly . . . consider[] eyewitness testimony that the defendant had a firearm in his possession, even in the absence of the recovery of such a firearm." Williams, 422 Mass. at 120-121. It is "sufficient that a gun was fired and the defendant was seen fleeing the scene within seconds of the gunshots." Id. at 121.
There was additional evidence of operability here. Even prior to the fight in the park, the defendant had told Brian that he had a "gun," a comment that the jury could have understood as a threat and from which they could reasonably infer that he meant he had a working gun. See Commonwealth v. Tuitt, 393 Mass. 801, 810 (1985); Commonwealth v. Kalhauser, 52 Mass. App. Ct. 339, 347 (2001). Brian and members of his group saw the defendant holding and firing what was variously described as a handgun, pistol, or revolver.
The specific detail of the witnesses' observations further support the reasonable inference that the defendant's handgun was a working firearm. The Commonwealth's witnesses told the jury that they heard gunshots. Brian saw smoke coming from the gun after the first shot and then saw the spark and smoke of the second and third shots. William saw a flame come from the pistol in the defendant's hand. Similarly, Brian Payne, one of the Murphys' friends, testified that he saw the flash of the gun. Brian Murphy's girl friend, Ashley Maccarrone, was watching the melee from a picnic table bench about fifteen feet away from the shooter. She testified that the gun "recoiled back a little bit" after being fired.
Particularly relevant in this regard is Connolly's testimony. An eighteen-year veteran of the Boston police department, Connolly testified that he heard gunshots and actually saw the muzzle flash on at least two shots. The jury heard evidence that Connolly was experienced and familiar with both the sound of gunfire and muzzle flash based on his experience as a police officer and on firing ranges.
There is no merit to the defendant's contention that expert opinion testimony was required to link the gunshots and muzzle flash to a firearm capable of being fired. The defendant concedes as much in acknowledging that there are cases without injury to persons or property where jurors were permitted to infer operability of a firearm without the aid of expert testimony. We have previously held evidence comparable to that adduced in the defendant's trial to be sufficient on the issue of operability even in the absence of expert testimony. See Commonwealth v. Mendes, 75 Mass. App. Ct. 390, 397 (2009) ("[The] testimony of three audible shots, the three empty casings, and the smell of gunpowder . . . amply supported the working condition of the weapon"). Here, the audible shots were confirmed by numerous witnesses. Although there was no testimony about the smell of gunpowder, the testimony from civilian witnesses and a police officer with firearms experience to muzzle flash and smoke from the gun's barrel, along with Maccarrone's observation of recoil after the gun was fired, support an inference of operability.
The jury could have reasonably inferred that the failure of police to locate shell casings here was not inconsistent with the defendant's use of an operable firearm, because there was testimony that the firearm in question was a revolver that would not leave telltale casings or cartridges behind. The absence of shell casings, therefore, does not meaningfully distinguish Mendes, in which police recovered a revolver and found spent shell casings inside the revolver housing. 75 Mass. App. Ct. at 392-393.
b. Prosecutor's closing argument. The defendant also contends that the prosecutor usurped the roles of judge and jury by arguing in closing that witness testimony about gunshots and muzzle flash, and Connolly's confirmation that his observations in the park were consistent with his experiences of shots fired as a police officer, amounted to proof beyond a reasonable doubt that the defendant was carrying a working and operable firearm capable of discharging a shot.
There was no objection to the Commonwealth's closing at trial, and we find no error that would present any substantial risk of a miscarriage of justice. See Commonwealth v. Brewer, 472 Mass. 307, 315 (2015). The judge's instructions in his preliminary charge, immediately preceding closing arguments, and in his final charge all included warnings that closing arguments were not evidence but rather a party's opportunity to suggest what the evidence means. The judge also repeatedly reminded the jurors (in both his preliminary charge and final charge) that he was the exclusive judge of the law and that their verdicts must be based on the law as he gave it to them. The prosecutor's argument was unlikely to have confused the jury into thinking that the prosecutor was instructing them on the law. The prosecutor himself reminded the jurors that the judge was going to instruct them on the law.
The jury are presumed to "recognize the prosecutor's role as an advocate." Commonwealth v. Tassinari, 466 Mass. 340, 355 (2013). Indeed, here the judge stated explicitly in his final charge that each of the lawyers was an advocate for a client. Finally, the inference the prosecutor asked the jury to draw from the evidence was a fair one. See Commonwealth v. Semedo, 456 Mass. 1, 13 (2010) ("In closing argument, a prosecutor may analyze the evidence and suggest reasonable inferences the jury should draw from that evidence").
4. Defense witness immunity. The defendant contends, for the first time on appeal, that the immunity statute, G. L. c. 233, §§ 20C-20E, is constitutionally invalid as applied to his case. The defendant suggests that he could have called any of the ten to fifteen witnesses who were at the fight with him to testify on his behalf but was prevented from doing so because his potential witnesses were not offered immunity. The defendant maintains that the Commonwealth's use of immunized witnesses "was unreasonably extreme." The defendant failed to raise the issue of immunity at trial and "cannot now argue for the first time on appeal that the judge, independently, should have granted . . . immunity." Commonwealth v. Wooden, 70 Mass. App. Ct. 185, 191 (2007).
Our review reveals that the defendant's rights were adequately protected here and that the use of immunized witnesses did not give rise to a substantial risk of a miscarriage of justice. The law governing immunized witnesses has various "safeguards" -- the requirement of corroborating testimony from nonimmunized witnesses, jury instructions on immunized witnesses, and opportunities to cross-examine immunized witnesses -- that are designed to prevent abuse of immunized testimony and preserve the defendant's right to a fair trial. Commonwealth v. Vacher, 469 Mass. 425, 440-441 (2014). See G. L. c. 233, § 20I. Those safeguards were all present here. The testimony of Connolly, a nonimmunized witness, corroborated that of the immunized witnesses. The judge repeatedly instructed the jury throughout the trial that the defendant could not be convicted solely on the testimony of an immunized witness. In his final charge, the judge instructed the jury that they could consider the grants of immunity in assessing the immunized witnesses' credibility. Defense counsel also thoroughly cross-examined the immunized witnesses on the question of their immunity, the various specific crimes for which they received immunity, and the maximum possible sentences they had thereby avoided. The defendant returned to this theme in closing argument, arguing that these witnesses were not credible because they "have been immunized and have been paid for everything that they've had to say." See Brewer, 472 Mass. at 315.
In sum, there is no merit to the defendant's assertion that the judge, sua sponte, should have offered immunity to unidentified defense witnesses. See Vacher, 469 Mass. at 439. "Standing alone, the Commonwealth's presentation of immunized witnesses, particularly where a defendant has not sought to immunize his own prospective witness, does not deprive a defendant of his right to a fair tria1." Id. at 439-440.
Conclusion. The defendant's convictions of assault by means of a dangerous weapon are vacated, and the verdicts are set aside. The matter is remanded for entry of convictions on the lesser included offense of simple assault on the three counts charging the defendant with armed assault with intent to murder, and for sentencing thereon. The remaining judgments are affirmed.
So ordered.
By the Court (Cohen, Trainor & Katzmann, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: January 15, 2016.