Opinion
14-P-1297
01-28-2016
COMMONWEALTH v. CHARLIE DONTAY VICK.
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 convictions of unlawfully carrying a firearm, G. L. c. 269, § 10(a); carrying a loaded firearm, G. L. c. 269, § 10(n); and assault and battery, G. L. c. 265, § 13A. Because the prosecutor's closing argument, to which the defendant seasonably objected, was unfairly prejudicial, and other aspects of the trial, though not objected to, exacerbated the prejudice against the defendant and created a substantial risk of "sweep[ing] [the] jurors beyond a fair and calm consideration of the evidence," Commonwealth v. Perry, 254 Mass. 520, 531 (1926), we reverse the judgments.
Background. The evidence, viewed in the light most favorable to the Commonwealth, permitted the jury to find that the defendant and a friend arrived on the front steps of Nicole Woods's two-family house in Revere at 10:30 P.M. on a summer night during a heated scene involving several individuals. An argument ensued, during which the defendant "smacked" Nicole Woods's niece, Sheneka Gombs, with whom he had been romantically involved, and "punched" Gombs's friend Ashley Celester. Woods's brother responded by trying to hit the defendant, but he stopped when the defendant fired six shots from a nine millimeter handgun. The gun was never recovered, but six shell casings were collected at the scene and introduced in evidence.
The evidence also showed that the defendant had been present in Woods's kitchen days before, sitting at a table in the proximity of a small, black handgun. Monea Parker, the mother of one of the defendant's children, testified that the defendant possessed a small, black nine millimeter firearm that he called "baby." The defendant's girlfriend, Brooke Desousa, mother of another of his children, also knew the defendant to possess a small, black gun that he called "baby." Desousa testified that on the night of the altercation the defendant woke her in the apartment that they shared and told her to move over so he could retrieve something from under the bed.
The trial was difficult and the witnesses were uncooperative. Parker had to be picked up by the police, Woods testified under court order, and Celester, the assault and battery victim, did not appear until after jury deliberations. The eyewitnesses uniformly suffered from memory lapses and repeatedly needed to have their recollections refreshed or were impeached with prior statements to the police and grand jury. The obvious frustration of putting on this case explains, but does not excuse, the prosecutor's errors.
Closing argument. Three aspects of the prosecutor's closing argument, combined with other errors at trial, warrant reversal of the judgments. First, throughout the closing argument, the prosecutor improperly attacked the defendant's character. "Evidence of a person's bad character is generally not admissible for the purpose of proving that he acted in conformity with it." Commonwealth v. Daley, 439 Mass. 558, 562 (2003). See Commonwealth v. Bonds, 445 Mass. 821, 829 (2006); Mass. G. Evid. § 404(a)(1) (2015). "Consequently, it is improper for a prosecutor to offer evidence of bad character for the purpose of proving the Commonwealth's case, or to argue that a jury should consider the defendant's bad character as evidence that he committed the crime on which they will be deliberating." Commonwealth v. Daley, supra at 563. See Mass. G. Evid. § 1113(b)(3)(C) (2015) (impermissible to appeal to jurors' emotions, passions, prejudices, or sympathies).
In arguing why the jury should infer that the defendant fired the gun, the prosecutor called him "[a]n angry boy pissed at some girl who he is sleeping with." She suggested that "[m]aybe if [the defendant] spoke a little bit more affectionately to the girls around him as he does about his gun, we wouldn't all be here today." And finally, she summed up the case by saying, "[I]t's about how the defendant communicated with the people around him. And he communicated through unnecessary violence, punching girls, shooting guns." These comments went beyond forceful argument from the evidence to improper character attack. The case was not about how the defendant communicated or a propensity for violence; it was about the identity of the person who fired the gun and whether the defendant struck Celester (who had no relationship with the defendant).
The prosecutor's use of the plural in this context did not imply that the defendant possessed more than one gun, as the defendant argues.
Second, as the Commonwealth commendably concedes, the prosecutor went beyond the evidence in arguing that Woods was a reluctant witness because, unlike when she spoke to the police, at trial "she [was] facing the defendant, a boy she loves, her nephew, and the family of the defendant, who she considers to be her family: [h]is grandmother, his mother, his sister, his father. They're all there." Not only was there no evidence regarding who was present in the court room, see Commonwealth v. Rivera, 52 Mass. App. Ct. 321, 327 (2001), but this line of argument may also have suggested, without any basis in the evidence, that the defendant and his family were responsible for Woods's loss of memory. While evidence-based arguments about a witness's credibility are proper, see Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 52 (2003), this line of argument improperly suggested that the prosecutor knew something the jury did not.
Third, although the judge and the defendant went to great lengths to prevent the jury from hearing that one of the defendant's recorded telephone calls introduced in evidence was placed from prison, in closing argument the prosecutor stated, "You heard his voice in a jail call -- strike that -- you heard his voice in a phone recording." This slip of the tongue was nonetheless improper. "A prosecutor is barred from referring in closing argument to matter that has been excluded from evidence." Commonwealth v. Carroll, 439 Mass. 547, 554 (2003) (citation omitted).
While seeking to introduce a prior inconsistent statement that a witness made to a police investigator, the prosecutor elicited testimony that the investigator had "listened to jail calls" and recovered "jail letters." The first reference was immediately stricken, and in response to the second reference the judge called a recess and tellingly asked the prosecutor, "What are you trying to achieve? Reversible error no matter how many times I rule in your favor?"
The prosecutor's improper statements constituted prejudicial error. See Commonwealth v. Santiago, 425 Mass. 491, 500 (1997); Commonwealth v. Grinkley, 75 Mass. App. Ct. 798, 807 (2009). Defense counsel timely objected to the attack on the defendant's character. He objected to the comments about the witness's reaction to the defendant and his family, although on a different ground than he asserts on appeal. He did not object to the reference to the "jail call." Nonetheless, "[o]nce a properly raised objection to a prosecutor's argument is found to be valid, the entire record, including the balance of the prosecutor's argument, becomes relevant in determining whether the error was prejudicial to the point of requiring a reversal of the conviction." Commonwealth v. Kozec, 399 Mass. 514, 523 (1987).
He objected that this line of argument impinged on the defendant's right to a public trial. See Commonwealth v. Person, 400 Mass. 136, 142 (1987).
The improper arguments went to the heart of the case, urging the jury to find the defendant guilty of carrying a loaded firearm despite the fact that no firearm was recovered, and that they should believe the out-of-court statements of the recalcitrant witnesses. The judge's instructions regarding the arguments of counsel were standard rather than curative. See Commonwealth v. Sevieri, 21 Mass. App. Ct. 745, 754 (1986). In combination with other improprieties in the course of the trial, the improper arguments likely made a difference in the case.
Additional prejudicial argument and evidence. It was not improper for the prosecutor to set the scene by eliciting testimony about the defendant's intimate relationships with the women who appeared as witnesses (Parker, Desousa) and the central characters who did not testify (Gombs). Nonetheless, the prosecutor's emphasis on the defendant's relationships with women was calculated to besmirch his character and ultimately went too far. The prosecutor first played on this theme from the opening, referring to Gombs as "one of the witnesses that [the defendant] is intimately involved with," to Celester as "another girlfriend" -- although there was no evidence that they were ever romantically involved -- and to Desousa as his "at-home girlfriend." There was no reason to ask Desousa, the last eyewitness to testify, whether the defendant was sleeping with Gombs, whether he was seeing other women when he was with her, or who Parker was (the defendant's "ex-girlfriend"). The prosecutor accentuated the character attack by establishing that the defendant provided financially for Parker and their child together, but that Parker did not know the defendant to have a job.
Likewise, there was no reason for the prosecutor to question an officer who was only peripherally involved with the investigation about the process for obtaining a search warrant (which, the officer testified, includes a recitation of "true facts" reviewed by a supervisor "and then taken to a judge to obtain permission to search"). See Commonwealth v. McCollum, 79 Mass. App. Ct. 239, 260 (2011). See also Commonwealth v. Sapoznik, 28 Mass. App. Ct. 236, 243-244 (1990). The same witness then testified that he had been investigating the defendant for two years. This testimony was irrelevant and unfairly prejudicial.
Two years elapsed between the defendant's arrest, which the officer witnessed, and the trial. Although the officer probably meant that he had taken part in the investigation two years prior, the inartful question and answer suggested that he had been focused on the defendant for two full years.
Sentencing enhancement. Because the issue may recur at any retrial, we briefly note that the "loaded firearm" enhancement of G. L. c. 269, § 10(n), does not require a bifurcated trial under G. L. c. 278, § 11A. While the defendant is entitled to a jury determination on this element because it "aggravates the punishment," Commonwealth v. Denehy, 466 Mass. 723, 736 (2014), he is not entitled to a separate trial. The statute, by its explicit terms, provides for bifurcated trials only when the increased sentence is based on "second and subsequent offenses," G. L. c. 278, § 11A, inserted by St. 1967, c. 213 -- that is, prior convictions.
Conclusion. "Since the Commonwealth's case as tried was not so overwhelming as to overcome the errors committed by the prosecutor, and given the number of errors and their significance, we are not satisfied that the defendant received a trial free of undue prejudice. There must be a new trial." Commonwealth v. Santiago, 425 Mass. at 503.
Judgments reversed. Verdicts set aside.
By the Court (Rubin, Maldonado & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 28, 2016.