Opinion
No. 12–P–16.
2013-08-20
COMMONWEALTH v. James WALKER.
By the Court (WOLOHOJIAN, HANLON & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, James Walker, was convicted of murder in the second degree and carrying a firearm without a license .
On appeal, he argues that the trial judge made several errors, which, taken together, require that his convictions be reversed. For the reasons outlined below, we affirm.
The defendant had been charged with murder in the first degree but was found guilty of the lesser offense. He was acquitted of armed assault with intent to murder and assault and battery by means of a dangerous weapon.
The defendant also appealed the denial of his motion for a new trial; however, that appeal is not part of the instant action.
Background. The jury heard the following evidence. The defendant, James Walker, and the victim, Antoine Perkins, were both members of a Mattapan gang known as the Lucerne Street Dogs. In approximately June, 2006, Perkins introduced his neighbor, Katrina Brown, to two members of the gang; one of the two was the defendant. Brown was to sell the men two pounds of marijuana in exchange for $2,000. The men went to Brown's second floor apartment and took the drugs without paying her. When she followed them out to the street, intending to collect payment, a third male was waiting in a car outside. The men got into the car and all three drove off. Before they left, one of the men “lifted his shirt” and Brown interpreted the gesture to mean that he had a weapon.
After the men left. Brown called her boyfriend, Wayne Young, who came to her house in a car with six other individuals. After a brief conversation with Brown and Perkins, Young and his friends followed Perkins and his girlfriend to the defendant's Talbot Avenue home, intending to confront him about payment for the drugs. The defendant was not there when they arrived, but he and Lyric Greaves, another gang member, arrived approximately ten minutes later.
When he arrived, the defendant immediately spoke to Perkins, asking him, “Why did you bring them to my house?” Perkins responded that he was not “getting killed over [the defendant]”; the defendant called Perkins “a snitch” and went into his house. The argument continued
and, eventually, Perkins ran away from the scene. About two weeks later, the defendant confronted Perkins and his girlfriend on Leston Street and the defendant again accused Perkins of being a snitch and asked, “Why did you bring [Young] to my house?”
Greaves and Young then “got into a little argument” and Young took Greaves's phone. Greaves went into the defendant's house briefly, then came out and started shooting at Young and the other members of his group. They returned fire. Apparently, no one was hit.
Approximately one month after this second incident, shortly before midnight on July 22, 2006, Perkins was sitting with his friend Malik Wilder, smoking a cigarette, on the top step of his front porch at 743 Morton Street. Wilder suddenly saw “a flash” and heard “a bang” come from his right side where Perkins was sitting; he did not see or hear anyone approach the porch prior to the shooting. Both Wilder and Perkins had been shot. Perkins later died at the hospital.
There was a preliminary investigation at the scene with unnamed bystanders providing some information to the police; however, it appears that they made little progress with the investigation. In approximately December, 2006, Joshua Hightower went to the defendant's house with one Devon Mason.
Hightower and the defendant were “close” friends. The three men were drinking “Hennessey” and “smoking weed.” Hightower asked the defendant what had happened with Perkins; the defendant, “grinning,” responded that Perkins had told Young that it was the defendant who stole the drugs from Brown. The defendant said that Perkins was “a snake in the grass, and he got what he deserved”; the defendant said that he “had to run up on [Perkins] and handle his biz.” Hightower understood the expression to mean that the defendant had “bodied,” or killed, Perkins. On December 20, 2006, after his conversation with the defendant, Hightower was charged in Federal court for selling crack cocaine. Once he realized the amount of time he would likely serve for being a “career criminal,” he spoke to the police about the defendant's confession in order “help [him]self.” On March 14, 2007, Hightower entered into a Federal cooperation and plea agreement.
Mason was not called as a witness by either party.
At trial, Hightower testified about his Federal agreement and also stated that he had made a proffer in March, 2008, to the Suffolk County District Attorney's Office. In January, 2009, Hightower testified before the Suffolk County grand jury. At trial, the judge sustained the prosecutor's objection to defense counsel's effort to cross-examine Hightower regarding two separate criminal charges brought after he signed the Federal plea agreement; the trial judge excluded the questioning because he feared a “risk of diversion” that would confuse the jury; he noted that Hightower had already testified to other crimes related to the gang. In the judge's view, defense counsel had already been allowed “plenty of impeachment-type material”; the judge asked defense counsel to bring the questioning “to a head.” There was no objection.
In his brief, the defendant argues that notwithstanding the fact that his trial counsel's answer to the judge's ruling on this point was “[f]ine, your honor,” “counsel then went on to further press his request.... Accordingly, counsel did not acquiesce in the judge's ruling.” On the contrary, the further discussion related to the witness's Federal probation revocation, a matter the judge ruled could be pursued. No objection was ever made to the exclusion of evidence of the two State charges.
Defense counsel was also precluded from cross-examining the investigating police sergeant regarding the recent deaths of various other gang members. He was allowed to question the officer about his knowledge of an ongoing gang feud and to establish that “there is a violent tension” among the various gangs in the area. However, the judge sustained objections to questions regarding the recent deaths of several gang members because there was no “substantial connecting links” between these deaths and “a third party culprit effort.”
Discussion. Hightower's testimony. a. Cross-examination. The defendant first argues that he was erroneously prevented from questioning Hightower regarding certain State criminal charges that, in his view, would have demonstrated Hightower's bias and motive to lie in exchange for leniency in sentencing on his Federal charges. In so doing, he relies on Commonwealth v. Connor, 392 Mass. 838 (1984), asserting that Connor is “very similar,” and compels the conclusion that cross-examination about the State criminal charges would have shown Hightower's motive to lie about the defendant's confession as his testimony “might have inspired hope of lenity and fear of punishment if such lenity were not obtained.” Id. at 841. This argument is misplaced.
First, in Connor, during the cross-examination of a key Commonwealth witness, “the defendant wished to examine the witness regarding pending criminal charges against her. The judge excluded this line of questioning.” (Emphasis added.) Ibid. In the present case, neither of the charges for which inquiry was barred was pending.
The difference is significant because, as the Connor court observed, pending charges are much more relevant to a witness's credibility than past favors. See id. at 841 (“The receipt of [past] benefits might have inspired gratitude, but the pendency of criminal charges might have inspired hope of lenity and fear of punishment if such lenity were not obtained. As a source of human motivation, gratitude pales beside hope and fear”).
According to defense counsel at trial, one of the two charges had been dismissed, and he told the judge he did not know the status of the second case. According to Hightower's board of probation record, submitted in support of the defendant's motion for a new trial, one of the two, a stolen car case, had been nolle prossed on June 2, 2009, that is, before the indictment in this case. The second case, an assault and battery charge, was dismissed two years earlier, on June 14, 2007.
In addition, apart from this minor restriction, the defendant here was allowed a virtually unrestricted cross-examination of Hightower, including questions about his juvenile convictions and other State criminal convictions between 2001 and 2005, and the facts of his Federal drug charges, including his potential prison sentence and efforts to reduce his sentence as a “career criminal” through a plea agreement. In particular, the defendant pointed out that over the course of four meetings with law enforcement, Hightower did not tell them about the defendant's confession, waiting, instead, until he was desperate after his pretrial release was revoked and he was incarcerated in Federal prison.
In addition, Hightower testified before the State grand jury in this case before signing his Federal plea agreement or knowing the specific reduction he would receive in his Federal sentence.
The Commonwealth stipulated to the fact that in reports generated by Federal authorities pertaining to meetings between Hightower and law enforcement on January 11, 2007, January 26, 2007, February 6, 2007, and March 14, 2007, there was no information regarding the defendant's alleged confession.
The right of a defendant to cross-examine a witness is not absolute. See Commonwealth v. Johnson, 431 Mass. 535, 538 (2000). “A trial judge has broad discretion to limit cross-examination of a witness.” Commonwealth v. Mercado, 456 Mass. 198, 203 (2010). In deciding whether the limitation is impermissible, we “weigh the materiality of the witness's direct testimony and the degree of the [erroneous] restriction on cross-examination.... Cross-examination that is somewhat impeded, but not totally foreclosed, presents a weaker case for finding a denial of rights than a complete absence of cross-examination.” Commonwealth v. Brazie, 66 Mass.App.Ct. 315, 319–320 (2006), quoting from Commonwealth v. Kirouac, 405 Mass. 557, 561–562 (1989). We are persuaded that this minor limitation of Hightower's cross-examination was not an abuse of the trial judge's considerable discretion.
It certainly did not create a substantial risk of a miscarriage of justice.
In his reply brief, the defendant makes two new arguments: that the two cases were dismissed as a reward for Hightower's grand jury testimony and that, because the charges could have been brought again, they were, in some sense, pending. Even were we to consider these arguments, despite the fact that they were not made to the trial judge, we would conclude that the judge was within his discretion to preclude that portion of the crossexamination.
b. “Particular care” instruction. The defendant next argues that the judge was required to give a so-called Ciampa instruction that the jury should scrutinize Hightower's testimony with “particular care.” See Commonwealth v. Ciampa, 406 Mass. 257, 266 (1989).
In this case, as the trial judge noted, Hightower did not have a written plea agreement with the Commonwealth. He had signed a proffer with the State, understanding that he would receive “some type of reduction” in sentencing on his Federal case, but was “never told [ ] how much,” prior to his grand jury testimony. Although Hightower testified that he had a Federal plea agreement and that it was his understanding that he “had to tell them the truth,” the written agreement was not admitted in evidence.
“ Commonwealth v. Ciampa ... instructs that when a government witness testifies pursuant to a plea agreement contingent on telling the truth, the judge should direct the jury's attention to the potential influence of the plea agreement on the witness's credibility, and should convey the need to view such testimony with caution.” Commonwealth v. Burgos, 462 Mass. 53, 74 n. 26 (2012).
Nor did the prosecutor in any way vouch for Hightower's credibility or claim any special knowledge that what he said was true.
There was, therefore, no written agreement in the record, requiring the witness to testify truthfully; one of the concerns about such an agreement is the appearance that the government is thereby “vouching” for the truth of the testimony. See Ciampa, supra at 266 (“[T]he plea agreement by itself could be viewed as an implied representation by the government that the witness's testimony will be truthful”).
In addition, although Hightower had cooperated in this case and others, hoping for a reduction of his Federal sentence, he testified that the District Attorney “gave [him] nothing” in exchange for his testimony.
In fact, the prosecutor referred only briefly to Hightower's testimony in his closing argument; his discussion of Hightower occupied only about three pages of transcript out of approximately thirty.
Finally, at the time he testified, Hightower had already pleaded guilty to the Federal charges and had received the considerable sentence reduction for his cooperation; he had no pending State cases. See Commonwealth v. Washington, 459 Mass. 32, 45 (2011), citing Commonwealth v. Felder, 455 Mass. 359, 369 (2009) (“Because [the witness] was not facing pending charges at the time of trial, Ciampa is inapposite.... There was no error in the judge's failure to include Ciampa instructions in his charge”).
Cf. Commonwealth v. Hughes, 82 Mass.App.Ct. 21, 28 (2012) ( “[T]he defendant was entitled to an instruction that when a witness's testimony results from a fee arrangement with the government, that testimony must be weighed with particular care”).
We are satisfied that “the judge's instruction on credibility ... was sufficient in the circumstances.” Commonwealth v. Grenier, 415 Mass. 680, 687 (1993).
The judge also generally instructed the jury that they must weigh the credibility of a witness to consider “[w]ere there any promises, rewards, inducements, or benefits that would flow to the witness as a consequence of his or her testimony” or whether “the witness [had] an incentive or a motive to testify in a certain way.”
c. Third party culprit. The defendant next argues that the trial judge erred in not allowing evidence in support of his trial theory that Perkins was killed by a rival gang with whom the Lucerne Street Dogs were feuding. Specifically, he sought to question the investigating police officer about the murder of two other Lucerne Street gang members in the months leading up to Perkins's death, arguing that this evidence would show that Perkins was killed by someone other than the defendant. He insists that, because the three shootings have a “common modus operandi, to wit, gunshots to the head,” the evidence was relevant.
“Third-party culprit evidence is ‘a time-honored method of defending against a criminal charge.’ Commonwealth v. Rosa, 422 Mass. 18, 22 (1996). ‘A defendant may introduce evidence that tends to show that another person committed the crime or had the motive, intent, and opportunity to commit it.’ “ Commonwealth v. Silva–Santiago, 453 Mass. 782, 800 (2009), quoting from Commonwealth v. Lawrence, 404 Mass. 378, 387 (1989). However, there are limitations on such evidence. Hearsay evidence not normally allowed may be admitted “if, in the judge's discretion, ‘the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other “substantial connecting links” to the crime.’ “ Id. at 801, quoting from Commonwealth v. Rice, 441 Mass. 291, 305 (2004). Also, “the evidence, even if it is not hearsay, ‘must have a rational tendency to prove the issue the defense raises, and the evidence cannot be too remote or speculative.’ “ Ibid., quoting from Commonwealth v. Rosa, supra. The evidence is admissible only if it is “of substantial probative value, and will not tend to prejudice or confuse ...” Commonwealth v. Smith, 461 Mass. 438, 445 (2012), quoting from Commonwealth v. Silva–Santiaao, supra at 801.
During the investigating officer's cross-examination, he acknowledged that there was an ongoing feud between the Lucerne Street Dogs and other rival gangs. Prompted by the prosecutor's objection, the judge cut off the questioning regarding the recent shooting deaths of two other Lucerne Street gang members. The judge determined that the defendant's effort to unite the two other shootings, crimes for which no one had been charged or convicted, with “hearsay ... that ha[d] come in about the two females and the three males” who provided identification of the shooter, was speculative, and that testimony about the previous murders merely corroborated the officer's acknowledgement of gang tensions. The judge concluded that “this sort of detail with people being killed” does not furnish the “substantial connecting links” required under Silva–Santiago to support a third party culprit theory. See Silva–Santiago, supra at 800–801.
The defendant, citing Commonwealth v. Jewett, 392 Mass. 558, 562 (1984), argues that he has a right to show that another person “recently committed a similar crime by similar methods.” However, the excluded evidence—that two Lucerne street gang members had recently been shot in the head—without more, proves neither that rival gangs shot them, nor that the defendant did not. The gravamen of this defense is evidence showing that a third party committed the crime, either because there is strong evidence that a third party committed other, very similar crimes, or because there is strong evidence that the defendant did not commit the other very similar crimes. See id. at 560–561 (“[T]the charges against the defendant in victim B's case were dropped on the prosecutor's recommendation, since on the day of the incident the defendant was a voluntary in-patient at the treatment center at the Massachusetts Correctional Institution, Bridgewater, and therefore could not have been [at the scene of the crime against victim A]”); Commonwealth v. Conkey, 443 Mass. 60, 67–70 (2004) (“There was substantially more evidence of motive on the part of the landlord than on the part of this defendant”). Neither situation is the case here.
We are satisfied “that the judge carefully evaluated the probative value of the proffered third-party culprit evidence and the risk of unfair prejudice to the Commonwealth from the admission of such speculative and remote evidence, and correctly ruled that the evidence was not admissible.” Commonwealth v. Ruell, 459 Mass. 126, 135 (2011).
d. Missing witness instruction. The defendant also contends that he was entitled to a missing witness instruction with regard to Devon Mason. He argues that it would be expected that the Commonwealth would call Mason as a witness because he could corroborate the defendant's alleged confession and he was a person with whom the police had contact during the investigation. In the defendant's view, it was error for the judge to decline to give the instruction because the judge made no inquiry as to Mason's availability or an explanation as to why he was not called by the Commonwealth.
“A missing witness instruction is appropriate when a party ‘has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case,’ and the party, without explanation, fails to call the person as a witness.” Commonwealth v. Saletino, 449 Mass. 657, 667 (2007), quoting from Commonwealth v. Anderson, 411 Mass. 279, 280 n. 1 (1991). “[A] missing witness instruction should be provided ‘only in clear cases, and with caution.’ “ Id. at 668, quoting from Commonwealth v. Figueroa, 413 mass. 193, 199 (1992), S.C., 422 Mass. 72 (1996). “Where the witness[ ] would have given testimony of limited value, namely, repeating [another witness]'s prior consistent statements that were merely corroborative of [the witness's] testimony, a missing witness instruction was not warranted.” Commonwealth v. Thomas, 439 Mass. 362, 371 (2003).
Here, after the judge's charge to the jury was completed. The defendant, for the first time, requested a missing witness instruction “based upon the government's closing.” When the judge declined, saying that he didn't think that a “foundation for that had been established,” counsel neither objected nor argued why a foundation had in fact been laid. This argument is therefore waived.
Even were we to consider the point, we agree with the trial judge that no foundation had been laid. There was no evidence about Mason's availability or willingness to testify for the Commonwealth, or even whether he was still alive: nor was there evidence that the prosecutor had attempted to conceal Mason's whereabouts or that he was not equally available to both parties. There was no abuse of discretion and certainly no substantial risk of a miscarriage of justice in the judge's refusal to give a missing witness instruction. See Commonwealth v. Williams, 450 Mass. 894, 900–901 (2008).
e. Empanelment question. Finally, the defendant argues that it was error for the trial judge not to ask the venire if they would believe a police officer over another witness simply because the witness was a police officer. This argument is meritless.
“The scope of voir dire rests in the sound discretion of the trial judge, and a determination by the judge that a jury are impartial will not be overturned on appeal in the absence of a clear showing of abuse of discretion or that the finding was clearly erroneous.... A trial judge, who is aware of the facts of a particular case and can observe firsthand the demeanor of each prospective juror, is in the best position to determine what questions are necessary reasonably to ensure that a particular jury can weigh and view the evidence impartially.” Commonwealth v. Bell, 460 Mass. 294, 303–304 (2011), quoting from Commonwealth v.. Lao, 443 Mass. 770, 776–777 (2005).
In this case, the judge first asked specific questions as mandated by law. See G.L. c. 234, § 28. He then asked the venire “whether [they] have a prejudice for or against a person because of that person's occupation.” There was no affirmative response. During his final instructions, the judge told the jurors that they were “the exclusive judges of the evidence” and that, in deliberating, must decide the facts “based entirely on the evidence that you have seen and heard in this room and that you observed ... and upon nothing else. Certainly not upon the basis of any inclination or bias, any pre-judgment or prejudice, any fear, any favor, or any sympathy for anyone....” The judge also gave “in substance” the defendant's requested “police deserve no greater consideration” instruction, specifically stating that “because a particular witness has special training and experience in her or his field does not put that witness on a higher level than any other witness.” We presume the jury followed the judge's proper instructions. See Commonwealth v. Degro, 432 Mass. 319, 328 (2000), and we see no abuse of discretion.
Conclusion. We have considered all of the arguments made by the defendant, including those raised for the first time in his reply brief, and we discern no errors.
Judgments affirmed.