Commonwealth v. Miller ( 2016 )

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SJC-10640
COMMONWEALTH vs. DAVID T. MILLER.
Bristol. May 6, 2016. - August 17, 2016.
Present: Gants, C.J., Cordy, Duffly, Lenk, & Hines, JJ. 1
Homicide. Firearms. Search and Seizure, Warrant, Expectation
of privacy. Constitutional Law, Search and seizure,
Standing to question constitutionality, Privacy. Evidence,
Firearm, Hearsay, Chain of custody, Immunized witness,
Prior misconduct. Privacy. Jury and Jurors. Witness,
Immunity. Practice, Criminal, Capital case, Motion to
suppress, Warrant, Standing, Waiver, New trial, Jury and
jurors, Deliberation of jury, Transcript of testimony
before grand jury, Hearsay, Stipulation.
Indictments found and returned in the Superior Court
Department on December 15, 2006.
A pretrial motion to suppress evidence was heard by Gary A.
Nickerson, J.; a second pretrial motion to suppress evidence was
considered by John P. Connor, Jr., J.; the cases were tried
before Barbara A. Dortch-Okara, J., and a motion for a new trial
was considered by her.
Jennifer H. O'Brien for the defendant.
1
Justice Cordy participated in the deliberation on this
case and authored this opinion prior to his retirement. Justice
Duffly participated in the deliberation on this case prior to
her retirement.
2
Corey T. Mastin, Assistant District Attorney, for the
Commonwealth.
CORDY, J. On the evening of September 25, 2006, James Cadet
was shot and killed. The defendant, David T. Miller, who lived
in the same apartment complex as the victim, was indicted for
the murder three months later after several witnesses, as well
as evidence seized during a search of his apartment building,
linked him to the crime.
The trial began in February, 2009. The defendant was
allowed to conduct the trial pro se but standby counsel, who had
been appointed to assist him, actively participated throughout
the trial proceedings.
On February 24, the jury returned verdicts of guilty of
murder in the first degree, on a theory of deliberate
premeditation, and of the unlawful possession of a firearm.
The next day, standby counsel for the defendant was
contacted by a juror who stated that she was troubled by the
verdict, and eventually submitted a letter to the judge
addressing her concerns.
The defendant subsequently filed a motion for a new trial
based on information set forth in the juror's letter, arguing
that extraneous material had reached the jury room and tainted
the jury's verdict. The motion was denied in November, 2009,
3
and the defendant's appeal therefrom was consolidated with his
direct appeal.
On appeal, the defendant claims error in (1) the denial of
his motions to suppress certain evidence, (2) the denial of his
motion for a new trial, and (3) the admission of certain
evidence at trial. He also requests relief under G. L. c. 278,
§ 33E. We affirm the defendant's convictions.
1. Background. The defendant does not challenge the legal
sufficiency of the evidence at trial, so we briefly summarize
the relevant evidence.
a. The killing. At approximately 9:30 P.M. on September
25, Fall River police officers arrived at the Sunset Hill
housing development (Sunset Hill) to find the victim lying on a
walkway. He had been shot numerous times and had succumbed to
those wounds.
Multiple witnesses observed a large person, ostensibly the
shooter, wearing a dark, hooded sweatshirt in the vicinity of
the crime scene shortly after hearing gunshots. One witness saw
the victim fall on the shooter and the shooter kick the victim
multiple times before fleeing the scene. As the shooter fled,
another witness recognized him as the defendant based on his
gait.
At the time of the shooting, the defendant lived in a unit
in Sunset Hill that belonged to his girl friend, Christina
4
Helger. The victim, who had been friends with the defendant,
was also a resident of Sunset Hill. However, on the day before
the murder the defendant and the victim got into an argument
after Helger had allowed the victim to use her bathroom while
the defendant was not home. As a result of this argument, the
victim later returned to Helger's apartment brandishing a
firearm. The victim pointed the weapon toward her apartment and
stated that there would be "problems" if she and the defendant
did not leave Sunset Hill. The victim then left without further
incident.
On the day of the murder, Helger twice spoke with the some
of the defendant's friends over the telephone. These telephone
calls led her to drive to a nearby fast food restaurant, meet
the defendant's friends, and direct them to her apartment.
Ultimately she and the group of friends entered Sunset Hill, and
got as far as the first building, when they heard gunshots and
fled the scene.
Within five minutes of hearing the gunshots, Helger
received a telephone call from the defendant, who asked her to
pick him up on a street adjacent to Sunset Hill. When Helger
picked the defendant up, he instructed her to drive to Boston.
On the way there, the defendant told Helger that "[the
victim] got shot, and that [the defendant] did what he had to
do." Additionally, he began to pray, and he instructed Helger
5
that, if asked, she should lie and say that they had left Fall
River at 6 P.M. The defendant also told Helger to put her hands
up if they were stopped by the police because the police would
think that the defendant had "something on him" and he did not
want Helger to get shot.
After arriving in Boston, Helger observed the defendant
wiping blood off his face. The defendant then purchased new
shoes at a store and threw the pair of shoes he had been wearing
in a trash barrel. After visiting his brother at his brother's
house, the defendant and Helger spent the night at a hotel in
Boston.
The following day, Helger and the defendant traveled to his
mother's house, where he destroyed the subscriber identity
module located in his cellular telephone.
The police recovered a black, hooded sweatshirt with the
victim's blood, along with a pair of gloves that tested positive
for gunshot residue, on the sidewalk of a street near Sunset
Hill. They also recovered, insofar as relevant here, twelve
.223 caliber shell casings from the scene of the crime. It was
later determined that the .223 caliber cartridge casings were
fired from a Ruger Mini-14 rifle (rifle) recovered from the
residence located in the Dorchester section of Boston.
At trial, Steve Smith, another Sunset Hill resident,
identified the rifle recovered from the Dorchester residence as
6
the rifle that he had given to the defendant approximately two
weeks before the shooting, in exchange for "crack" cocaine.
Smith also gave the defendant multiple rifle magazines and
numerous rounds of .223 caliber ammunition during that
transaction. Shortly after the shooting, the police executed a
search warrant for the defendant's apartment and recovered, from
the basement of a neighbor's unit that shared basement space
with the unit in which the defendant was living, a rifle case,
.223 caliber ammunition, and rifle magazines, which Smith
identified at trial as having previously been his.
b. The grand jury transcript. While in prison awaiting
trial, the defendant sent a letter to a relative, in which he
requested that the recipient contact his sister in order to have
her instruct his stepfather not to testify before the grand jury
or at the defendant's trial.
The defendant attached six pages of grand jury transcript
to the letter. That transcript recounted the testimony of
Detective John McDonald of the Fall River police department, who
had interviewed the stepfather during the course of the
investigation. According to McDonald's grand jury testimony,
the defendant told the stepfather that he shot the victim, then
7
took the victim's gun and shot him with that weapon, spit on the
victim's face, and kicked him in the head. 2
The defendant's letter and the attached grand jury
transcript were intercepted, pursuant to an order, by a prison
official. The letter and grand jury transcript were
subsequently admitted in evidence at trial.
2. Motions to suppress. "In reviewing a ruling on a
motion to suppress, we accept the judge's subsidiary findings of
fact absent clear error, 'but conduct an independent review of
his ultimate findings and conclusions of law.'" Commonwealth
v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth
v. Jiminez, 438 Mass. 213, 218 (2002).
a. Evidence seized from the basement. The defendant first
contends that evidence obtained from the basement unit of the
apartment adjoining his was beyond the scope of a search warrant
and therefore was improperly seized and admitted in evidence at
trial. The undisputed facts presented at the motion hearing are
as follows. Shortly after the death of the victim, the Fall
River police department executed a search warrant. The search
warrant authorized the police to search unit 316 of Sunset Hill,
which at the time was occupied by the defendant and Helger.
2
The defendant explained in his letter that McDonald's
testimony about what was said during the interview could not be
used against the defendant in court unless the stepfather
testified before the grand jury or at the defendant's trial, and
therefore the stepfather should not do so.
8
During the execution of the warrant, police officers recovered a
plastic bag containing two metal ammunition clips loaded with
.223 caliber ammunition, and they also found loose .223 caliber
ammunition rounds. The police also recovered a rifle carrying
case from the same area. The defendant asserts (and the
Commonwealth does not dispute) that these items were seized from
the basement of unit 315, a neighbor's apartment, and were thus
outside the scope of the warrant for the search of his apartment
(unit 316), and seized in violation of the Fourth Amendment to
the United States Constitution and art. 14 of the Massachusetts
Declaration of Rights.
In his motion to suppress, the defendant argued that he had
automatic standing to challenge the seizure of the items. The
motion judge denied the motion as to the indictments charging
the defendant with murder in the first degree and possession of
a firearm, but allowed the motion as to the indictment charging
him with possession of a large capacity feeding device. 3 The
defendant contends that once his standing to challenge the
seized items was established with respect to the third
3
General Laws c. 140, § 121, states that a large capacity
feeding device is "a fixed or detachable magazine . . . capable
of accepting . . . more than ten rounds of ammunition . . . ."
The magazines seized from the basement of unit 315 of the Sunset
Hill housing development (Sunset Hill) fit within this
definition, as one contained twenty rounds of ammunition and the
other contained twenty-one rounds of ammunition.
9
indictment, the items were required to be suppressed as to all
indictments. We disagree.
In Commonwealth v. Amendola, 406 Mass. 592, 601 (1990), we
held that art. 14 incorporates the doctrine of automatic
standing, even though the United States Supreme Court had
previously abandoned the doctrine. See United States
v. Salvucci, 448 U.S. 83, 95 (1980). Thus, "[w]hen a defendant
is charged with a crime in which possession of the seized
evidence at the time of the contested search is an essential
element of guilt, the defendant shall be deemed to have standing
to contest the legality of the search and the seizure of that
evidence." Amendola, supra at 601.
Here, the motion judge correctly determined that possession
of the items seized from the neighbor's unit, while outside the
scope of the warrant, was not an essential element to either the
murder indictment or the indictment for the possession of the
firearm the police had obtained by other proper means. See
G. L. c. 265, § 1; G. L. c. 269, § 10 (a). The defendant
therefore lacked automatic standing to challenge the illicit
seizure of those items with respect to the first two
indictments. See Amendola, 406 Mass. at 601.
As the motion judge concluded, however, the defendant did
have automatic standing to challenge the search and seizure (and
consequently the admissibility) of those items with respect to
10
the third indictment (possession of large capacity feeding
devices) and the seized rifle magazines qualified as such
devices under the statute. Therefore, the defendant argues, the
seized ammunition and rifle magazines should not have been
introduced in evidence at trial. Our decision in Commonwealth
v. Frazier, 410 Mass. 235 (1991), forecloses this argument.
In Frazier, the defendant was charged with both trafficking
in cocaine, G. L. c. 94C, § 32E, and conspiracy to traffic in
cocaine, G. L. c. 94C, § 40, after the police searched his
codefendant's handbag and uncovered a large quantity of
cocaine. Id. at 239, 244. We held that the defendant had
standing to challenge the search of his codefendant's handbag as
to the trafficking charge because possession of the cocaine
seized from the handbag was an essential element of that
offense. Id. at 245. However, the defendant did not have
standing to challenge the search as to the conspiracy charge
because possession of the cocaine recovered from the handbag was
not an essential element of that crime. Id. at 245-246.
Accordingly, here the motion judge correctly determined
that the defendant's standing to challenge the search of his
neighbor's basement under the third indictment did not give the
defendant standing to challenge the admission of the seized
items at the trial of the other indictments. Because the
Commonwealth did not proceed against the defendant on the third
11
indictment, the only indictment that provided him with automatic
standing, the defendant lacked standing to challenge the
admission of the ammunition, rifle magazines, and rifle carrying
case in evidence at the trial. 4,5
b. Prison letter and grand jury testimony. The defendant
next argues that a second motion judge erroneously deemed his
motion to suppress the letter and attached grand jury transcript
waived after the defendant failed to appear at the scheduled
motion hearing. We agree.
Prior to trial, the defendant, representing himself, moved
to suppress the letter and the attached grand jury transcript
4
The defendant argues that the Commonwealth's failure to
enter a formal nolle prosequi required the evidence seized from
unit 315 of Sunset Hill to be suppressed at trial. A prosecutor
has the discretion to enter a nolle prosequi of indictments
pending against a defendant "at any time prior to the
pronouncement of sentence." Mass. R. Crim. P. 16 (a), 378 Mass.
885 (1978). Although a nolle prosequi was not formally entered
as to the third indictment until the defendant had been
convicted and sentenced on the other indictments, the
Commonwealth nevertheless chose not to prosecute the defendant,
and that indictment was never presented to the jury. The
defendant was never sentenced for the charge set forth in the
third indictment; thus, the prosecutor's entry of a nolle
prosequi as to that charge after trial was a valid exercise of
prosecutorial power pursuant to Mass. R. Crim. P. 16 (a).
5
There is no validity to the defendant's claim that
statements made by the motion judge at the hearing on the motion
to suppress "impinged upon the expectation of fundamental
fairness in the judicial process." To the contrary, the motion
judge merely stated the obvious -- that the Commonwealth had to
decide whether to proceed on the third indictment in light of
his ruling.
12
intercepted by the prison official on the basis that the
official failed to follow Department of Correction (department)
procedures while monitoring the defendant's mail. On the day of
the motion hearing, a court officer stated that she had heard
from the department that the defendant refused to be transported
to the court house. 6 Standby counsel who was present at the
scheduled hearing did not object to the judge's ruling that the
motion was waived.
We previously have held that a defendant's absence at a
motion hearing does not automatically constitute a waiver of the
defendant's right to the suppression hearing itself, Robinson
v. Commonwealth, 445 Mass. 280, 290 (2005). Accordingly, the
motion judge in this case erred in denying the motion solely on
the basis that the defendant had waived the claim by failing to
appear. However, because we conclude that the motion would not
have succeeded in any event, the denial of the motion did not
create a substantial likelihood of a miscarriage of justice
warranting a new trial. See Commonwealth v. Marquetty, 416
6
The defendant was in the custody of the Commonwealth at
the time of the motion hearing. The defendant disputes the
claim that he refused to be transported. In his motion for
postconviction discovery regarding the circumstances surrounding
his failure to appear at the motion hearing, he alleges that his
transportation vehicle had never arrived at the prison to bring
him to the motion hearing. His motion for postconviction
discovery was denied.
13
Mass. 445, 448 (1993), citing Commonwealth
v. Viriyahiranpaiboon, 412 Mass. 224, 231 (1992).
The defendant claims that his rights under the Fourth
Amendment and art. 14 were violated when the prison officer
seized his outgoing mail. To establish such a violation, the
defendant bears the burden of proving that, in the circumstances
presented, the search and seizure falls within the purview of
the Fourth Amendment and art. 14, that is, that he had a
reasonable expectation of privacy in the items
seized. Commonwealth v. Silva, 471 Mass. 610, 617
(2015); Commonwealth v. D'Onofrio, 396 Mass. 711, 714-715
(1986). To do so, the defendant must demonstrate both that he
had a subjective expectation of privacy in the item and that the
"expectation of privacy [is] one that society is prepared to
recognize as 'reasonable.'" Matter of a Grand Jury Subpoena,
454 Mass. 685, 688 (2009), quoting Commonwealth v. Blood, 400
Mass. 61, 68 (1987).
Here we need look no further than to whether the defendant
can demonstrate a subjective expectation of privacy in his
outgoing mail. Whether an inmate has a subjective expectation
of privacy generally turns on whether the inmate has notice of
the policy of the penal institution allowing for the search or
seizure of a particular item. See Matter of a Grand Jury
Subpoena, 454 Mass. at 689; Cacicio v. Secretary of Pub. Safety,
14
422 Mass. 764, 772-773 (1996); United States v. Van Poyck, 77
F.3d 285, 290 (9th Cir.), cert. denied, 519 U.S. 912 (1996).
Here, the defendant does not even argue that he subjectively
believed that his mail would not be monitored by prison
personnel or that he lacked notice of the department's
regulation authorizing prison personnel to monitor his mail. It
is apparent that his motion would have failed.
3. Motion for a new trial. The defendant next argues that
a third judge, who was also the trial judge, erred in denying
his motion for a new trial after the jury were exposed to
extraneous material during deliberations. We disagree.
"When this court reviews a defendant's appeal from the
denial of a motion for a new trial in conjunction with his
direct appeal from an underlying conviction of murder . . . , we
review both under G. L. c. 278, § 33E" (citation
omitted). Commonwealth v. Chatman, 473 Mass. 840, 846 (2016),
quoting Commonwealth v. Jackson, 471 Mass. 262, 266 (2015),
cert. denied, 136 S. Ct. 1158 (2016). We first determine
whether "the denial of the motion was based on an error of law
or an abuse of discretion." Commonwealth v. Leng, 463 Mass.
779, 781 (2012). If we conclude an error was made, we then
determine "whether such error creates a substantial likelihood
of a miscarriage of justice." Id. Where, as here, the judge
hearing a motion for a new trial was also the trial judge, we
15
extend special deference to her factual
determinations. Commonwealth v. Camacho, 472 Mass. 587, 591
(2015), quoting Leng, supra at 781.
a. Magazine containing BB gun photographs. At the trial,
Helger, the defendant's girl friend, testified that she had
witnessed the defendant and his friend handling the murder
weapon in the weeks leading up to the shooting. Near the end of
trial, the defendant questioned Detective Michael J. Chace, who
investigated the murder, about a conversation that Chace had
with the friend following the shooting. Chace stated that he
had asked the friend whether he had seen the defendant with a
gun prior to the shooting, and the friend responded that he had
seen the defendant only with a BB gun shaped like a handgun.
Shortly after trial, standby counsel for the defendant was
contacted by a juror, who informed standby counsel that she was
troubled by the verdict. Standby counsel promptly reported the
matter to the trial judge, and a hearing was held to determine
the substance of the exchange between standby counsel and the
juror. The judge requested that the juror express her concerns
in writing, and she submitted a letter to the judge detailing
them.
In her letter, the juror stated that another juror brought
a magazine about BB guns, which apparently had pictures of BB
guns in it (BB gun magazine) and which was not introduced as
16
evidence at trial, into the jury deliberation room in order to
show other jurors that certain BB guns look like real guns. 7 The
first juror's letter also stated that she had misunderstood both
the manner in which MacDonald's grand jury testimony was to be
used by the jury during deliberations and her ability to
discredit the grand jury testimony.
On March 27, 2009, the defendant filed a motion for a new
trial based on the information set forth in the juror's letter.
The judge denied the motion after finding beyond a reasonable
doubt that the defendant was not prejudiced by the jury's
consideration of the extraneous material. We agree with this
conclusion.
In Commonwealth v. Fidler, 377 Mass. 192, 193-194 (1979),
overruled on another ground by Commonwealth v. Moore, 474 Mass.
541 (2016), a juror presented an affidavit to the court in which
the juror alleged that extraneous material not presented at
trial had been considered by the jury during deliberations. We
held that the defendant was entitled to a hearing to determine
whether extraneous material had been introduced into the jury
7
The defendant and the Commonwealth both infer that the
second juror brought the magazine into the jury deliberation
room to reconcile the conflicting testimony given by Helger and
Detective Michael J. Chace concerning whether the defendant had
been seen possessing an actual gun or a BB gun before the
murder. While the first juror's letter discusses the testimony
of Chace, it does not reference the testimony of Helger.
17
room, and, if so, whether a new trial was warranted due to
resulting prejudice to the defendant. Id. at 200-201.
The first step of the Fidler inquiry requires the defendant
to prove by a preponderance of the evidence that extraneous
material was introduced to the jury. Id. at 201.
See Commonwealth v. Kincaid, 444 Mass. 381, 386 (2005),
quoting Fidler, supra. Here, the judge, in her memorandum of
decision denying the defendant's motion for a new trial, assumed
that extraneous material had reached the jury deliberation room,
and moved on to the second prong of the Fidler inquiry. That
second prong requires that the Commonwealth prove beyond a
reasonable doubt that the jury's review of the extraneous
material did not prejudice the defendant. Fidler, 377 Mass. at
201. When determining whether the defendant was prejudiced by
the extraneous material, "the judge may not receive any evidence
concerning the actual effect of the matter on the juror's
decision . . . . Rather, the judge must focus on the probable
effect of the extraneous facts on a hypothetical average
jury." Id.
The judge found beyond a reasonable doubt that the jurors'
examination of the BB gun magazine did not prejudice the
defendant because "the case against the defendant was strong
while the question of whether a BB gun can resemble a real gun
was not attached to any crucial issue in this case." In coming
18
to this conclusion, the judge properly focused on the weight of
evidence against the defendant, and the likelihood that the
extraneous material prejudiced him. See Kincaid, 444 Mass. at
389, quoting Fidler, supra at 201 n.8.
We agree with the judge's finding that the evidence against
the defendant at trial was substantial. Helger, the defendant's
girl friend, testified to numerous inculpatory statements made
and actions taken by the defendant immediately following the
murder. Her testimony also established the defendant's motive.
Further, Smith testified that he had given the defendant
the rifle used to kill the victim in exchange for "crack"
cocaine. The police also recovered ammunition of the same
caliber as that used in the murder, rifle magazines, and a rifle
carrying case from the basement of the housing unit that
adjoined the unit in which the defendant was living at the time
of the murder. At trial, Smith also identified those items as
articles traded to the defendant in the same transaction.
Multiple eye witnesses also observed a person matching the
description of the defendant fleeing the scene of the crime.
One witness identified the shooter as the defendant based on his
gait. Another witness who had heard gunshots observed the
shooter kick the victim, and Helger testified that the defendant
disposed of his shoes on arriving in Boston on the night of the
murder. The victim was also seen falling onto the shooter after
19
the shots were fired on the night of the murder, and Helger
testified that the defendant wiped blood off his face after they
fled to Boston.
In addition to the substantial evidence of the defendant's
guilt, the judge also correctly determined that the probability
of prejudice was low with respect to the introduction of the BB
gun magazine into the jury deliberation room, given that the
question whether a BB gun can look like an actual gun was
insignificant in determining the defendant's guilt.
The use of a BB gun magazine to resolve the discrepancy
between Helger's testimony (about a gun she observed the
defendant handling in the week before the murder) and what
Detective Chace reported (that a friend of the defendant told
Chace that the friend had witnessed the defendant handling a BB
gun during that same time) was not significant, where the
defendant's possession of the murder weapon was established
through other evidence at trial.
Additionally, the conflicting testimony was not
contradictory. Helger testified that she saw the defendant
handling a rifle before the murder. Chace testified that a
friend of the defendant told Chace that the friend had seen the
defendant with a BB gun shaped like a pistol prior to the
murder. The introduction of a BB gun magazine into the jury
20
room would not help a hypothetical jury resolve this incongruity
between the testimony of Helger and Chace.
Finally, the Commonwealth's failure to highlight the fact
that Helger observed the defendant with the rifle after
extensively discussing her testimony in its closing argument
further illustrates the insignificance of Helger's testimony in
linking the defendant to the murder weapon.
For these reasons, the judge's determination that the
defendant was not prejudiced by the introduction of the BB gun
magazine into the jury deliberation room was not an abuse of
discretion or other error of law.
The defendant further argues that he is entitled to a new
trial because the judge learned, through the letter from the
juror, that the jury were influenced by extraneous information.
As previously discussed, the judge requested that the juror
submit her concerns to the court in writing. The letter, in
pertinent part, states:
"[The other juror] brought in a magazine about BB guns
into the deliberation room on the second day of
deliberation. He used this magazine to show other
jurors that BB guns are similar in appearance to real
guns. After one of the witnesses testified that he
saw the Defendant with only a BB gun and not a real
gun, [that juror] proceeded to inform the other jurors
that the Defendant could have had a real gun as they
look similar. He used this magazine to demonstrate
this belief to the other jurors."
21
In Fidler, we stressed our reluctance to "prob[e] the
juror's thought processes" in determining whether the defendant
is entitled to a new trial after extraneous material was deemed
to have been brought into the jury deliberation room. Fidler,
377 Mass. at 201. See Harrington v. Worcester, Leicester &
Spencer St. Ry. Co., 157 Mass. 579, 581-582 (1893); Commonwealth
v. Scanlan, 9 Mass. App. Ct. 173, 184 (1980). A judge hearing a
motion for a new trial therefore "may not receive any evidence
concerning the actual effect of the matter on the juror's
decision" while conducting a hearing to determine whether
extraneous material reached the jury deliberation
room. Fidler, supra at 201.
In Kincaid, we recognized the inherent difficulty in
conducting the hearing required by Fidler without inquiring into
the jury's deliberative process. See Kincaid, 444 Mass. at 391-
392. In order to reduce the likelihood that a juror will
testify as to their "subjective mental processes" during
deliberations, we clarified the extent to which juror testimony
may be elicited by a judge hearing such a motion: jurors may
testify as to information not mentioned at trial that came up
during deliberations, but they cannot describe how that
information was used or the manner in which it affected
individual jurors' thought processes. Id. at 391,
quoting Fidler, 377 Mass at 198.
22
Here, the judge conducted a hearing to determine the extent
of the conversation between the juror and standby counsel, but a
hearing was never conducted to determine whether the extraneous
material in fact had been presented to the jury. Instead, the
judge requested that the juror "express her concerns in
writing." The judge then used what she gleaned from the letter
to determine whether the introduction of the magazine was
prejudicial to the defendant.
Neither party claims error with respect to the judge's
method of inquiry, although it departs from the Fidler
framework. See Fidler, 377 Mass. at 200-201 (defendant entitled
to hearing in order to substantiate claim that extraneous
material was considered by jury during deliberations).
Nonetheless, Fidler gives a judge hearing a motion for a new
trial latitude in conducting a postverdict inquiry. See id. at
203 (judge "may make such order as [she] deems appropriate for
the administration of justice" when conducting postverdict
inquiry). The judge determined that the juror's letter was
sufficient to allow the judge to conduct a substantive analysis
pursuant to Fidler, as evidenced by her memorandum denying the
defendant's motion for a new trial. We agree and therefore
perceive no error that creates a substantial likelihood of a
miscarriage of justice.
23
However, by requiring the juror to reduce her concerns to
writing without any guidance, the judge increased the likelihood
that information about the jurors' thought processes during
deliberations would come to light. In her letter, the juror
described the second juror's attempt to use the BB gun magazine
to show other jurors that a BB gun may be similar in appearance
to a real gun. Nevertheless, the first juror did not go on to
describe the actual effect that the introduction of this
evidence had on the jury's deliberations. She included no
statement as to the impact of the extraneous material on any one
juror's "subjective mental process" in coming to the conclusion
that the defendant was guilty. Contrast Commonwealth v. Cuffie,
414 Mass. 632, 638 (1993), overruled on another ground
by Commonwealth v. Santoli, 424 Mass. 837 (1997) (defendant
entitled to new trial after juror explicitly stated she was
influenced by extraneous material considered during
deliberations). Because the juror's letter does not reveal the
actual effect that the BB gun magazine had on any juror's
ultimate conclusion of the defendant's guilt, the judge did not
err in refusing to grant the defendant's motion for a new trial.
Accordingly, the defendant's claim fails.
b. Grand jury transcript. At trial, the defendant, acting
pro se, objected to the admission in evidence of the grand jury
transcript of Detective McDonald's testimony that was attached
24
to the defendant's letter because the documents contained
hearsay. The judge informed the defendant that the grand jury
transcript was admissible despite the fact that McDonald was
relaying to the grand jury statements made by the defendant's
stepfather, because the transcript, coupled with the defendant's
letter, constituted consciousness of guilt evidence.
See Commonwealth v. Scanlon, 412 Mass. 664, 676 (1992),
overruled on another ground by Commonwealth v. King, 445 Mass.
217, 242-243 (2005) ("It is well established that evidence
regarding threats or intimidation of key witnesses for the
prosecution is admissible to demonstrate consciousness of
guilt").
Despite his initial objection, the defendant subsequently
stipulated to the admission of the letter and grand jury
transcript in exchange for the admission of a letter he sought
to admit written by Helger (and intercepted by a prison
official). Although the defendant was representing himself, the
record indicates that standby counsel was available to him at
sidebar when the stipulation was agreed to. 8
After the Commonwealth read the stipulation aloud in the
presence of the jury, the defendant did not object or request
limiting instructions. Moreover, the defendant made no
8
At the sidebar, standby counsel also actively made several
suggestions regarding possible redactions from the material
whose admission the defendant had stipulated to.
25
objection when the Commonwealth referenced the grand jury
transcript and letter in its closing argument. Finally, the
defendant did not object to the jury instructions given at the
close of trial.
In his motion for a new trial, the defendant argued that
the letter and attached grand jury transcript were extraneous
materials that were improperly considered by the jury during
deliberations. 9 The judge denied the motion after determining
that the letter and grand jury transcript were not extraneous
materials because the defendant stipulated to the admission of
both documents.
On appeal, the defendant claims that the judge erred
because he had not in fact stipulated to the admission of the
letter and grand jury transcript. The defendant further argues
that the admission of the letter and the attached grand jury
transcript in evidence constitutes reversible error because the
materials contained hearsay, violated the confrontation clause,
and were overly prejudicial to the defendant.
A defendant is bound by a stipulation that a document is
admissible unless it is vacated as "improvident or not conducive
to justice." Commonwealth v. Sanchez, 405 Mass. 369, 377
(1989), citing Pastene Wine & Spirits Co. v. Alcoholic Beverages
9
The defendant was represented by appellate counsel when
this motion was filed.
26
Control Comm'n, 401 Mass. 612, 615 (1988). In denying the
defendant's motion, the judge found that the defendant had
stipulated to the admission of the letter and grand jury
transcript, and the record supports this conclusion. Instead of
having the admission of the documents limited to their use as
evidence of consciousness of guilt, the defendant made a
strategic decision to stipulate to their general admission.
See Scanlon, 412 Mass. at 676. In exchange for the admission of
the defendant's letter and the grand jury transcript, the
defendant was able to admit in evidence a letter that he
received from Helger which he believed would be helpful to his
case. Finally, the defendant's decision to agree to the
stipulation appears to have led the Commonwealth to conclude
that it no longer needed to call the defendant's stepfather as a
witness. 10
Nothing in the record indicates that the defendant's
decision to stipulate to the admission of the letter and
attached grand jury transcript was "improvident or not conducive
to justice." Sanchez, 405 Mass. at 377, citing Pastene Wine &
Spirits Co., 401 Mass. at 615. Although the grand jury
transcript was damaging to the defendant, it would have been
10
The Commonwealth intended to call the defendant's
stepfather as a witness during its case-in-chief. However,
almost immediately after the stipulation was agreed to at
sidebar, the Commonwealth stated that it no longer intended to
call the stepfather as a witness.
27
damaging even if its admission had been limited to the jury's
consideration of consciousness of guilt, and the defendant
benefited from the stipulation in other respects. It also
altered the way in which the Commonwealth presented its case to
the jury. We discern no reason to set aside the defendant's
stipulation with the Commonwealth.
Because the defendant entered into a valid stipulation with
the Commonwealth, his other arguments regarding the admission of
the grand jury transcript must fail.
Finally, the defendant uses the letter from the juror to
argue that the jury improperly considered the grand jury
transcript during deliberations. 11 However, where the transcript
was admitted pursuant to a stipulation, and the defendant did
not request a limiting instruction, the evidence was admitted
for all purposes, Commonwealth v. Roberts, 433 Mass. 45, 48
(2000), and the juror's letter has no bearing on the validity of
the verdict. Moreover, as the Appeals Court recognized
in Commonwealth v. Delp, 41 Mass. App. Ct. 435, 440 (1996), the
"second thoughts of a conscientious juror . . . do not in any
way necessitate a new trial" (citations omitted). See United
States v. Gerardi, 586 F.2d 896, 898 (1st Cir. 1978) (juror's
11
The juror stated in her letter that she misunderstood
both the manner in which the grand jury transcript was to be
used during deliberations and her ability to discredit the
contents of the grand jury transcript.
28
second thoughts about conviction do not compel new
trial); United States v. Weiner, 578 F.2d 757, 764 (9th Cir.),
cert. denied, 439 U.S. 981 (1978) (refusing to grant new trial
after juror expressed second thoughts about verdict). The judge
did not err in denying the defendant's motion for a new trial.
4. Evidentiary issues. The defendant also claims error
relating to the admission of certain evidence at his trial.
Because the defendant preserved the issues during trial, we
determine whether there was error, and, if so, whether that
error was prejudicial. Commonwealth v. Cruz, 445 Mass. 589, 591
(2005).
a. Chain of custody. The defendant argues that evidence
was improperly admitted after defects in the chain of custody of
the evidence were exposed.
Two paper evidence bags containing what was believed to be
black gloves found near the scene of the crime were admitted in
evidence at trial. During deliberations, the jury informed the
judge that the bags were empty. Standby counsel moved to strike
all testimony relating to the evidence. The judge, after
consulting with standby counsel, the defendant, and the
Commonwealth, instead informed the jury that the gloves were
misplaced while in the custody of the Commonwealth. It was
eventually discovered that the bags were improperly marked, and
29
that the gloves were in the custody of the State police crime
laboratory. The gloves were not submitted to the jury.
Defects in the chain of custody of otherwise admissible
evidence go to the weight of the evidence, as opposed to the
admissibility of the evidence. Viriyahiranpaiboon, 412 Mass. at
230. The judge informed the jury that the Commonwealth
misplaced the gloves, so that they could properly weigh the
evidence before them. We perceive no error.
b. Testimony of immunized witness. The defendant argues
that Smith, who testified to providing the defendant with the
gun used in the shooting, improperly testified during trial as
to his obligation to tell the truth pursuant to a grant of
immunity.
On direct examination, when the Commonwealth asked whether
his grant of immunity freed Smith to be less accurate with his
testimony, Smith stated that it did not. Standby counsel
objected to this testimony, but the objection was overruled.
In Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989), we
stated that "[a] prosecutor must be free to argue that [an
immunized] witness is credible, but may not explicitly or
implicitly vouch to the jury that he or she knows that the
witness's testimony is true." In order to prevent a prosecutor
from vouching as to an immunized witness's credibility, a
30
prosecutor should wait to bolster the credibility of the witness
until redirect examination. Id. at 264.
Here, the Commonwealth did not bolster the witness's
credibility by questioning him concerning his obligation to tell
the truth on direct examination. The terms of the agreement
between the Commonwealth and Smith were not presented to the
jury, and the jury were not informed that the decision to
immunize Smith was contingent on his testifying truthfully.
Contrast id. at 262 (error where portion of plea agreement
presented to jury stating agreement contingent on witness's
truthfulness not redacted).
Additionally, although not required to give the jury an
immunized witness charge, the judge gave the such a charge after
the Commonwealth concluded its direct examination of Smith and
at the close of trial. The defendant did not object to either
charge as being insufficient during trial. See Commonwealth
v. James, 424 Mass. 770, 786-787 (1997) (immunized witness
instruction not necessary where no testimony about grant of
immunity being dependent on witness's truthfulness elicited).
We perceive no error.
c. Testimony about domestic violence. As discussed, on
the day before the killing, the defendant had become upset after
Helger allowed the victim to use her bathroom while the
defendant was not home. Helger testified that the defendant
31
pushed her against a wall during the course of their argument.
She further testified that the victim criticized the defendant
for doing so, which resulted in the defendant telling the victim
to leave the apartment. The victim, armed with a gun, returned
to the defendant's apartment and informed the defendant that he
and Helger should leave the Sunset Hill development.
The defendant argues that Helger's statement that the
defendant pushed her against a wall is evidence of domestic
abuse, which is both irrelevant and overly prejudicial to the
defendant. We disagree.
Because the defendant did not object to the testimony at
trial, we review the claim of error to determine whether there
is a substantial likelihood of a miscarriage of
justice. Marquetty, 416 Mass. at 448. It is well established
that evidence of prior bad acts and hostile relationships is
admissible to prove the hostile nature of the relationship
between a victim and a defendant. See, e.g., Commonwealth
v. Bianchi, 435 Mass. 316, 322 (2001); Commonwealth v. Sarourt
Nom, 426 Mass. 152, 160 (1997); Commonwealth v. Cordle, 404
Mass. 733, 744 (1989), S.C., 412 Mass. 172 (1992). Here,
Helger's testimony was clearly relevant to demonstrate the
contentious relationship between the defendant and the victim.
Helger's testimony gave the jury information about the events
leading up to the murder, which shed light on the defendant's
32
motive for committing the murder. The inclusion of this
testimony was not an error.
5. Relief pursuant to G. L. c. 278, § 33E. After
reviewing the record in its entirety, we decline to exercise our
powers under G. L. c. 278, § 33E, to grant the defendant a new
trial or to reduce the degree of guilt.
Judgments affirmed.
Order denying motion for
a new trial affirmed.