Opinion
10-P-1557
10-11-2011
COMMONWEALTH v. JAY SMITH.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction, following a jury-waived trial in the Superior Court, of the crime of perjury under G. L. c. 268, § 1. He claims error in (1) the admission of testimony from a police officer regarding a verbal exchange that he had with the defendant that was also contained in an inadmissible recording, and (2) the denial of his motion for a required finding of not guilty. We affirm.
1. Admission of Trooper Galvin's testimony. On February 15, 2009, Trooper Galvin interviewed the defendant as a potential witness to a homicide that occurred one week prior. The Commonwealth had failed to obtain permission from the defendant to record the interview, and the judge properly ruled the recording of the interview inadmissible, as a violation of G. L. c. 272, § 99. Her order, however, did not extend to the testimony of the trooper since the trooper had spoken directly with the defendant in the interview. The trooper testified at trial, without objection, that the defendant stated he did not want to testify before the grand jury because of the pendency of an unrelated drug charge and he did not want to be labeled a 'snitch' in jail. There was no error in the admission of the trooper's testimony, let alone one that created a substantial risk of a miscarriage of justice. See Commonwealth v. Jarabek, 384 Mass. 293, 297-300 (1981).
Notwithstanding the defendant's successful objection to the admission of the tape recording of the defendant's interview with Trooper Galvin, the defendant's failure to make a contemporaneous objection to the trooper's testimony regarding the statements made by the defendant during said interview was fatal, as the issue was insufficiently preserved for appeal. See Commonwealth v. Whelton, 428 Mass. 24, 25-26 (1998).
2. Motion for required finding of not guilty. When evaluating the denial of a motion for a required finding of not guilty, we view the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). Pursuant to G. L. c. 268, § 1, the crime of perjury requires the Commonwealth to prove: (1) the defendant made a statement under oath at a hearing in court; (2) the statement was false; (3) the falsehood was significant, that is, it reasonably tended to affect the determination of a relevant issue or the outcome of the proceeding; and, (4) at the time the defendant made the statement, he knew that it was false. The defendant contends, in particular, that the Commonwealth's evidence was insufficient to support the element that his testimony of poor memory was knowingly false. The evidence, together with inferences that may be reasonably drawn therefrom, fairly supported the Commonwealth's allegation that the defendant's testimony before the grand jury during the grand jury investigation was knowingly and significantly false. See Commonwealth v. Silva, 401 Mass. 318, 325 (1987).
a. False and material statements under oath. The defendant testified under oath and before the grand jury on March 6, 2009. When questioned about the relevant events of the homicide, the defendant failed to recall forming or recounting any observations. In response to a question, the defendant did testify that he did not witness a gun transfer to the alleged shooter, a statement in direct conflict with what Silva testified that the defendant told her. (See infra.) The defendant further claimed an inability to recall providing his two female companions, Silva and Goncalves, with whom he traveled to and from the scene of the shooting, with any details of his observations. In contrast, the defendant provided the grand jury with a clear and detailed account of events immediately preceding and following the shooting.
The testimony of Silva and Goncalves is consistent with respect to the defendant's whereabouts on the night in question: the defendant got out of the car in close proximity to the altercation, appeared familiar with the people present, and re-entered the car after the sound of a gun shot.
Silva testified the defendant 'looked shocked' after the gunshot sounded and stated that the shooter received the gun from Kurt, another party identified at the scene. According to the Goncalves, upon entering the car after the gunshot the defendant immediately stated, 'it shouldn't have gone down like that,' and that the victim 'dropped like a sack of potatoes' and 'was probably dead.'
The defendant appears to have had knowledge about the history among the victim, the shooter, and the third-party gun owner. He stated to Silva: 'the reason why Kurt was letting his friend get [] beat up [was] 'cause he knew he had a gun and he knew what he was up to,' and that an individual he referred to as Joao had gotten the gun from Kurt and then shot Leverone (the victim).
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The defendant's claimed lack of memory outlined above went to the heart of the Commonwealth's investigation to determine who shot and killed the victim in the underlying case, and, as such, was material to the homicide case.
b. Knowledge of falsity of statements. The corroborative evidence showed that the defendant had an evasive attitude before the grand jury and demonstrated a motivation to avoid making any conclusive statements. The defendant told the trooper during the interview that took place just three weeks prior to his testimony that he did not want to testify before the grand jury because he was likely going to be incarcerated on account of a pending charge, and knew what happened to 'snitches.'
3. Conclusion. Considering the entirety of the Commonwealth's evidence, including the trial testimony of two witnesses in direct opposition to that of the defendant before the grand jury, as well as corroborative evidence of a clear and convincing nature, the Commonwealth met its burden of proving beyond a reasonable doubt that the defendant knowingly made a false statement of material significance under oath. Therefore, the defendant's motion for a required finding of not guilty was correctly denied.
Judgment affirmed.
By the Court (Kantrowitz, Graham & Fecteau, JJ.),