Opinion
18-P-153
10-23-2019
COMMONWEALTH v. Ross TUCKER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant, Ross Tucker, of the involuntary manslaughter of the victim, Eric Benedict. G. L. c. 265, § 13. On appeal, the defendant challenges his conviction and sentence on numerous grounds. We affirm.
Discussion. 1. Sufficiency. The defendant first claims that the Commonwealth did not introduce sufficient evidence to prove involuntary manslaughter because it relied on an uncorroborated confession and there was no evidence of intent or recklessness. We disagree.
While an uncorroborated confession is insufficient evidence to sustain a conviction, corroboration merely consists of "some evidence, besides the confession, that the criminal act was committed by someone, that is, that the crime was real and not imaginary." Commonwealth v. Forde, 392 Mass. 453, 458 (1984).
Here, the defendant confessed to shooting the victim. In corroboration of this confession, the Commonwealth introduced evidence from a witness (who was in the same room with the defendant and victim) that the defendant and the victim had been talking about pointing guns at people and, further, that he observed the defendant raise his arm toward the victim just before he heard gunfire. There was also evidence that the victim suffered from a gunshot wound to the head and that the bullet was consistent with the defendant's gun. This evidence sufficiently escalated the crime from "imaginary" to "real." Accordingly, we conclude that "after viewing the evidence in the light most favorable to the prosecution, [a] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
The defendant challenges the admissibility of numerous pieces of evidence, but, when determining sufficiency, we examine all evidence before the jury "without regard to the propriety of [its] admission." Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), quoting Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010).
Involuntary manslaughter is "an unintentional, unlawful killing caused by wanton or reckless conduct." Commonwealth v. Tavares, 471 Mass. 430, 437 (2015), quoting Commonwealth v. Earle, 458 Mass. 341, 347 (2010). To support a conviction for involuntary manslaughter, the defendant's conduct must be the result of a conscious act and not an accident. Commonwealth v. Depradine, 42 Mass. App. Ct. 401, 407 (1997).
The defendant contends that there was insufficient evidence to dispel the theory that the victim was shot by accident. We disagree. To establish the absence of accident, the Commonwealth need only prove that the defendant intentionally committed an act "which by reason of its wanton or reckless character ‘expose[d] another to personal injury, and cause[d] such an injury.’ " Commonwealth v. Bouvier, 316 Mass. 489, 495 (1944), quoting Commonwealth v. Hawkins, 157 Mass. 551, 552-553 (1893). Here, the evidence established that the victim was shot by the defendant's weapon, a witness observed the defendant raising his arm toward the victim just before a shot rang out, the victim collapsed immediately thereafter with blood streaming from his face, and the defendant confessed to the shooting. Moreover, the Commonwealth presented evidence that the defendant's gun required more than four pounds of pressure on its trigger to fire.
The jury could reasonably have inferred both that as the owner of the gun, the defendant should have known it was loaded, and, further, that while holding the gun directed at the victim's face, he applied sufficient pressure to the gun's trigger to cause it to fire -- belying, thereby, any claim of accident. See Latimore, 378 Mass. at 677 (conviction may be supported by evidence and inferences drawn therefrom).
This evidence sufficiently supported a finding that the defendant's conduct was wanton and reckless. Intentionally pulling the trigger of a gun pointed at another, even under the mistaken belief that the gun is unloaded, is nothing short of reckless. See Commonwealth v. McCauley, 355 Mass. 554, 561 (1969). Moreover, the Commonwealth also established that the defendant was trained in the use of guns and, according to the defendant's firearm instructor, the defendant was taught to assume that all firearms are loaded.
2. Voluntariness. The defendant next contends that his statements made after the shooting but before he arrived at the Haverhill police station were involuntary and inadmissible. Because he did not raise this issue in the trial court, it is waived. See Commonwealth v. Garcia, 409 Mass. 675, 678 (1991).
The defendant also contends the judge should have issued an instruction on interrogation recordings as required by Commonwealth v. DiGiambattista, 442 Mass. 423, 447-448 (2004). By not raising this issue in the trial court, he has waived it. See Commonwealth v. Garcia, 409 Mass. 675, 678 (1991). In any event, such an instruction is only warranted "when the prosecution introduces evidence of a defendant's confession or statement that is the product of a custodial interrogation or an interrogation conducted at a place of detention." DiGiambattista, 442 Mass. at 447. Here, as noted below, the defendant's statements at the scene of the shooting were not in response to custodial interrogation. See Commonwealth v. Callahan, 401 Mass. 627, 629-630 (1988) (police asking "What happened?" upon arriving on scene not a custodial interrogation).
In any event, the defendant would not have prevailed on this challenge had he raised it. "A voluntary statement is one that is the product of a rational intellect and a free will, and not induced by physical or psychological coercion." Commonwealth v. Libby, 472 Mass. 37, 41 (2015), quoting Commonwealth v. Molina, 467 Mass. 65, 75 (2014). Here, many of the defendant's statements after the shooting were spontaneous. His nonspontaneous statements were in response to the officer's question, "What happened?" and the defendant's father's questions to the defendant later in the evening. None of these statements were made in a coercive environment. See Commonwealth v. Callahan, 401 Mass. 627, 629-630 (1988) (police asking "What happened?" upon arriving on scene not coercive). Furthermore, although the defendant was undoubtedly distraught after the shooting, "even profound distress" does not render his statements involuntary. Commonwealth v. Stroyny, 435 Mass. 635, 646 (2002). Where there was no evidence supporting a substantial claim of involuntariness, and where it was not a live issue at trial, the judge was not required sua sponte to conduct a voluntariness inquiry. See id. We see no error.
The defendant also contends that his trial counsel was ineffective for not moving to suppress his statements to police at the scene of the shooting and not requesting a DiGiambattista instruction. Because those motions would have been futile, counsel was not ineffective. See Commonwealth v. Vieux, 41 Mass. App. Ct. 526, 527 (1996), cert. denied, 520 U.S. 1245 (1997).
3. Evidentiary issues. The defendant next challenges the introduction of several pieces of evidence. We are not persuaded that any of this evidence was inadmissible.
a. Alcohol and marijuana consumption. The defendant contends that testimony on alcohol and marijuana consumption was substantially more unfairly prejudicial than probative. We disagree. Evidence of alcohol and marijuana consumption was relevant to show the defendant's state of mind during the shooting, which was a central issue at trial. See Commonwealth v. Martinez, 476 Mass. 186, 194-195 (2017) (fact that evidence goes to central trial issue weighs heavily in favor of admission). Even if some of the evidence was cumulative, "[g]enerally the admission of cumulative evidence does not constitute reversible error." Commonwealth v. Davis, 54 Mass. App. Ct. 756, 764 (2002). Furthermore, since the defendant elicited many references to alcohol and marijuana consumption, "he cannot now complain of [their] prejudicial effect." Commonwealth v. Elder, 389 Mass. 743, 754 (1983).
b. Visual demonstration. The defendant contends that a witness's demonstration of how the defendant raised his arm to the victim was inadmissible because, on cross-examination, the witness contradicted himself. Any contradiction goes to the weight of the evidence, and not its admissibility. Commonwealth v. Scesny, 472 Mass. 185, 196 n.22 (2015).
c. Autopsy photograph. The defendant asserts that the autopsy photograph of the victim's head wound was inflammatory and substantially more unfairly prejudicial than probative. We disagree. While the photograph was bloody, it was not overly so, and did not show the victim's body altered after the injury occurred. Compare Commonwealth v. Bell, 473 Mass. 131, 142-143 (2015) (though pictures of horrifically burned victim subject to drastic treatment procedures were inflammatory, no abuse of discretion in their admission). This photograph was relevant because it corroborated the defendant's confession, and also corroborated the assistant medical examiner's testimony regarding the bullet's entry. See Commonwealth v. McKenzie, 3 Mass. App. Ct. 785, 785 (1975) (testimony of blood splatter and bone shards admissible to corroborate victim's account of assault and battery with shotgun).
To the extent that the defendant challenges the admissibility of the assistant medical examiner's testimony on the same grounds as he challenges the autopsy photograph, not only does he fail to advance adequate appellate argument, see Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019), but such a challenge is no stronger than his challenge to the photograph.
d. Deoxyribonucleic acid (DNA) and firearm testimony. The defendant argues that DNA and firearm evidence were inadmissible as substantially more unfairly prejudicial than probative. As the defendant has not cited any authority on this issue, he has waived it by inadequate appellate argument under Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019). Nevertheless, he fares no better on the merits. DNA evidence was relevant to the extent that it helped to dispel the notion that the victim shot himself. Moreover, the evidence did not incriminate the defendant and thus it did not unfairly prejudice the defendant. Testimony about firearms also assisted the jury in understanding the safety mechanisms in the defendant's gun and how one could fire it, which were directly relevant to the defendant's state of mind and intent at the time of the killing.
e. Gunshot residue (GSR) evidence. The defendant contends that the testimony of a forensic scientist on GSR tests was substantially more prejudicial than probative because he testified that: (1) GSR does not indicate who fired a gun; and (2) GSR particles were found on each of the people at the scene of the killing, including the defendant, but only the particles found on the victim's hands sufficiently established a positive test result.
We fail to see how the defendant was prejudiced by this evidence. See Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 187-188 (2013) (to be inadmissible, evidence must be unfairly prejudicial, not merely "adverse" to a party). That many people at the scene of the shooting had GSR particles on them but only the victim's hands had sufficient amounts for a positive test result did not prejudice but rather aided the defendant's theory that the victim shot himself. To the extent that the defendant contends that this testimony confused the jury, the witness's careful explanation of the threshold required for a positive test result for GSR sufficiently prevented this. See Commonwealth v. Johnson, 463 Mass. 95, 108 (2012) (no error in admitting negative GSR test results with explanation that particles were present but insufficient to warrant positive result). Accordingly, we see no abuse of discretion.
To the extent that the defendant alleges that the Commonwealth committed a discovery violation by not disclosing the testimony on the difference between GSR particles and positive test results, we are not persuaded. In addition to not presenting adequate appellate argument pursuant to Mass. R. A. P. 16 (a) (9), and failing to raise the issue below, see Garcia, 409 Mass. at 678, even if the Commonwealth had a duty to disclose this testimony and failed to do so, the testimony did not prejudice the defendant. See Commonwealth v. Emerson, 430 Mass. 378, 380-381 (1999) (reversal for discovery violation requires prejudice).
f. Struck testimony on hollow point bullets. The defendant contends that struck testimony from a police witness that hollow point bullets, such as the ones found in the defendant's gun, are "for maximum destruction [and] deadly force," prejudiced him. We disagree. Upon a timely objection to this testimony, the judge struck it and issued a curative instruction, which we presume the jury followed. Martinez, 476 Mass. at 194.
4. Misstatement of evidence in opening. The defendant next contends that the prosecutor misstated what the evidence would be by saying, "[T]here was no gunshot residue found on the defendant's hand" in her opening. We disagree.
"[C]ounsel is free to state in his opening anything that he expects to be able to prove by evidence. If the expected testimony does not materialize, it will not be presumed that the prosecutor acted in bad faith." Commonwealth v. Breese, 381 Mass. 13, 15-16 (1980). Here, the prosecutor's opening largely comported with later testimony that most people at the scene of the shooting, including the defendant, had GSR particles on them, but only the victim had sufficient particles for a positive test result.
5. Misstatement of evidence in closing. The defendant next contends that the prosecutor misstated the evidence in her closing argument when she said: (1) "the bullet went through [the victim's] head" and (2) "[the defendant] smoke[d] a bunch of weed." A prosecutor may argue "forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence." Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). Here, the prosecutor's statement that the defendant "smoke[d] a bunch of weed" was based on testimony that the defendant and his friends all smoked marijuana before the shooting, but there was no evidence as to the quantity. Also, in a narrow sense, the statement that "the bullet went through [the victim's] head" was incorrect -- the bullet never left the victim's skull. Because the defendant did not object to these statements at trial, we review them for a substantial risk of a miscarriage of justice. Commonwealth v. Brown, 479 Mass. 600, 609-610 (2018). Because the prosecutor's misstatements were minor and the judge instructed the jury that the arguments of counsel are not evidence, there was no such risk. Commonwealth v. Fruchtman, 418 Mass. 8, 18 (1994).
6. Sentence. Lastly, the defendant contends that his sentence is unlawful under the Massachusetts sentencing guidelines, art. 26 of the Massachusetts Declaration of Rights, and the Second, Sixth, and Eighth Amendments to the United States Constitution. We are not persuaded.
We review sentences for "errors of law or constitutional violations." Commonwealth v. Grimshaw, 412 Mass. 505, 513 (1992). Here, although the judge imposed a sentence at the highest end of the sentencing guidelines, such guidelines are merely advisory. Commonwealth v. Russo, 421 Mass. 317, 332-334 (1995). The defendant's sentence of seven to ten years in prison is well under the statutory maximum of twenty years and within the judge's "considerable latitude ... to determine the appropriate individualized sentence," Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993), especially given the judge's meticulous recitation of the aggravating and mitigating factors he weighed when fashioning the defendant's sentence.
This sentence is not "so disproportionate to the offense as to constitute cruel [or] unusual punishment" under art. 26, Commonwealth v. Sanchez, 405 Mass. 369, 379 (1989), quoting Cepulonis v. Commonwealth, 384 Mass. 495, 496 & n.2 (1981), nor does it infringe on the defendant's Second Amendment "right ... to use arms in defense of hearth and home," District of Columbia v. Heller, 554 U.S. 570, 635 (2008), as the defendant did not use his firearm for defense.
Because the defendant cannot prevail under art. 26, which offers broader protections than the Eighth Amendment, Commonwealth v. Perez, 477 Mass. 677, 679 (2017), his Eighth Amendment claim also fails.
Finally, the defendant's contention that his sentence unconstitutionally punishes him for exercising his Sixth Amendment right to a jury trial runs counter to the judge's express statement, "I cannot and will not punish Mr. Tucker in any way for exercising his right to trial." Accordingly, we discern no error.
Any "[o]ther points, relied on by the defendant[ ] but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Judgment affirmed.