Opinion
No. 14–P–1859.
10-21-2016
COMMONWEALTH v. Antwan WATHEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Antwan Wathey, appeals from a jury verdict finding him guilty of murder in the second degree of James Taylor. After engaging in a fist-fight with Taylor, the defendant got into his car, did a three point turn, and then drove into Taylor who was walking away, sending him sixty-eight feet across the road. The defendant appeals on the grounds that: (1) the judge improperly excluded evidence, thereby denying the defendant his constitutional right to present a full defense; (2) the judge erred in allowing the Commonwealth to present evidence showing the defendant had abused his girl-friend, Ebonne Borden; and (3) the prosecutor violated the defendant's right to due process by violating a sequestration order, making improper remarks during closing, and failing to correct the trial judge's apparent misapprehension that Taylor and the defendant had argued about the defendant's abuse of Borden on the night of the incident. For the reasons set out below, we affirm.
1. Exclusion of evidence. We review a trial judge's exclusion of evidence for an abuse of discretion. Commonwealth v. Durning, 406 Mass. 485, 497–498 (1990). “[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27 (2014) (quotations omitted).
The defendant's argument at trial was that he had not targeted Taylor with his vehicle, but rather, Taylor had committed suicide by stepping into the travel lane. On the night of the incident, Taylor, who was belligerent and intoxicated, walked down the street, hitting his fist against his hand, stating that he was “ready to die tonight, I dare someone to try me. I dare someone to act up. I'm ready to die tonight” He also said that he “didn't have anything to live for” and punched a gate and kicked a parked car. When someone on the street yelled at him to stop kicking the car, Taylor yelled back, “come outside then.” Taylor also allegedly referenced a nine-month jail sentence he had just served. The defendant sought to introduce the latter statement, as well as testimony from Taylor's probation officer, to show that Taylor's legal problems were part of the reason he wanted to die. The trial judge admitted in evidence the victim's multiple statements to the effect that he wanted to die that night, but excluded both the “nine months” statement and the probation officer's testimony as irrelevant. We discern no abuse of discretion. The defendant was not precluded from presenting his suicide defense; he was only prevented from presenting unsupported conjecture that Taylor's probationary status made him suicidal. At the time of the incident, Taylor did not have a pending probation violation notice or surrender proceeding; indeed, there was no evidence or offer of proof that Taylor's probation was about to be revoked. Therefore, it was well within the range of reasonable alternatives for the trial judge to determine that the “nine months” statement and the probation officer's testimony were irrelevant, and thus, to exclude them.
The defendant also sought to admit evidence regarding Taylor's friends' reputations for violent retribution, in order to explain why the defendant fled the scene of the collision and left the Commonwealth soon after. The trial judge excluded this testimony on the grounds that the defendant had not made an offer of proof to demonstrate that he knew anyone was coming or that he believed he was in danger of being hurt by Taylor's friends that night. The defendant claims the trial judge erred by making the admissibility of the evidence contingent on him taking the stand. In fact, the judge told the defendant that unless he could make an offer of proof to show he reasonably believed Taylor's friends were coming to hurt him that night, the reputation evidence would be irrelevant. This left the defendant free to lay the foundation for the reputation evidence however he saw fit. That taking the stand may have been the easiest way to do so does not mean the trial judge conditioned admissibility on the defendant testifying. The evidence was properly excluded.
2. Prior bad act evidence. “We do not disturb a judge's decision to admit evidence absent an abuse of discretion or other legal error.” Zucco v. Kane, 439 Mass. 503, 507 (2003). Over the defendant's objection, the trial judge allowed the Commonwealth to introduce evidence that the defendant had abused his girlfriend, Ebonne Borden, in the past. Prior bad act evidence is inadmissible “if its probative value is outweighed by the risk of unfair prejudice to the defendant.” Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). Here, the prior bad act evidence was probative to explain the months-long hostility between the defendant and Taylor that culminated in their fistfight moments before the defendant killed Taylor. Borden was Taylor's relative and friend. Five months before the incident, Taylor had witnessed the defendant physically abusing Borden, and had confronted him, resulting in a fight between the two men, and animosity that endured until the night of the incident. The evidence concerning the defendant's abuse of Borden explained the origin of the animosity; therefore, it was probative of the nature of the defendant's and Taylor's hostile relationship, and of the defendant's state of mind on the night of the incident. Moreover, in light of the other evidence the Commonwealth presented to show the defendant purposefully hit Taylor with his car, the judge properly concluded that the probative value of the evidence outweighed any unfair prejudice to the defendant.
This includes three eyewitnesses' testimonies that they did not see the defendant slow or brake before hitting Taylor, as well as expert testimony that there were no skid marks near the collision, and that the impact from the crash caused Taylor's body to fly sixty-eight and eight-tenths feet across the road.
3. Prosecutorial Misconduct. The defendant's final claim is that the Commonwealth engaged in multiple instances of prosecutorial misconduct that, taken together, were so egregious as to deprive him of his right to due process. We disagree.
The defendant argues that the Commonwealth violated its duty of candor to the court by failing to correct the trial judge's apparent misapprehension that the defendant and Taylor had argued about the defendant's abuse of Ebonne Borden on the night of the collision. However, neither the defense nor the prosecution corrected the judge's apparent misapprehension. The prosecution also at one point followed up with the judge, explaining that what Taylor had said was, “ ‘what's up with your baby's mother, talking about how you're going to beat our ass.’ And then the defendant [said], ‘what are you talking about?’ “ Regardless, the on-going hostility between the defendant and Taylor, and the role the abuse of Borden played in that hostility, was properly introduced at trial. Under these circumstances, the prosecutor did not commit reversible error by not providing further clarification to correct the judge's understanding of what was said about Borden right before the fight.
Second, the defendant claims the Commonwealth violated the trial judge's sequestration order in regard to the medical examiner's testimony. When the defendant raised the alleged sequestration violation at trial, the judge asked both prosecutors whether either of them had spoken to Officer Barrett about the medical examiner's testimony in violation of the order. Both responded that they had not. The judge made no finding that there had been a violation, but told the defendant he would consider excluding any line of questioning having to do with information disclosed through a potential violation. See Commonwealth v. Pope, 392 Mass. 493, 506 (1984) (“Both the sequestration of witnesses and the remedy for violating a sequestration order lie within the sound discretion of the trial judge”). Regardless, the defendant does not claim on appeal that he was prejudiced by the alleged sequestration violation. Therefore, even if such a violation occurred, it did not prejudice the defendant, and is therefore not a ground for reversal.
Finally, the defendant claims the Commonwealth made improper remarks during closing argument. A prosecutor is entitled to argue “forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence.” Commonwealth v. Kater, 432 Mass. 404, 422 (2002)(Kater) (quotations omitted). In addition, “enthusiastic rhetoric, strong advocacy, and excusable hyperbole” are permissible in a closing argument. Commonwealth v. Wilson, 427 Mass. 336, 350 (1998). The defendant identifies five instances he claims were improper in the Commonwealth's closing argument, which we address in order. First, the prosecution's statement that there was not one “shred” of evidence to show Taylor had been suicidal that night was not, as the defendant claims, exploitative of the excluded “nine months” statement, because as explained above, the “nine months” statement was improper conjecture in relation to Taylor's state of mind. Moreover, the prosecutor was entitled to argue that Taylor's statements about being ready to die were not evidence of suicidal thoughts, but rather of bellicose belligerence. Second, the statement, “what evidence is there that [Taylor] told the defendant, ‘kill me?’ “ was grounded in the evidence, and was therefore proper. Similar statements that the defendant highlights were likewise proper, and did not shift the evidentiary burden to the defendant. Third, saying that Taylor's “hit me, hit me, hit me” statement “came only from [the defendant]” was properly grounded in the evidence, and did not constitute asking the jury to automatically dismiss the defendant's statements simply because he was the defendant. Fourth, the prosecution did not inappropriately disparage the defense. The word “trick” does not appear anywhere in the Commonwealth's closing, and calling the defense's theory “ridiculous” or otherwise implying that it was unbelievable was within the bounds of a proper closing argument. Fifth, the prosecutor did not misstate facts; his statements that the defendant and Taylor had gotten into multiple fights were supported by the evidence, and it was also reasonable for him to infer from the evidence that the defendant made Clifford Abbott move to the passenger seat prior to the collision.
None of the witnesses to the incident testified that they had heard Taylor tell the defendant to kill him.
Again, none of the testifying witnesses said they heard Taylor make this statement.
This was a proper inference based on the facts that Abbott was seen sitting in the driver's seat when the defendant and Taylor were fighting moments before the collision, the defendant owned the car, and the defendant was admittedly driving the car when he hit the victim. See Kater, supra.
Judgment affirmed.