Commonwealth v. Bryant , 482 Mass. 731 ( 2019 )

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SJC-11675
COMMONWEALTH vs. KYLE BRYANT.
Plymouth. May 10, 2019. - July 30, 2019.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
Homicide. Evidence, Prior misconduct, Inflammatory evidence,
Identification. Identification. Practice, Criminal,
Instructions to jury, Mistrial, Capital case.
Indictments found and returned in the Superior Court
Department on April 5, 2010.
The cases were tried before Thomas F. McGuire, Jr., J.
Alan J. Black for the defendant.
Audrey Anderson, Assistant District Attorney, for the
Commonwealth.
CYPHER, J. A jury convicted the defendant, Kyle Bryant, of
murder in the first degree on a theory of deliberate
premeditation for the killing of Darnell Harrison (victim).1 On
1 The defendant also was convicted of unlawful possession of
a firearm and found not guilty of armed assault with intent to
murder Sean Cox.
2
appeal, the defendant contends that the judge erred when he
allowed the Commonwealth to introduce prior bad act evidence
that showed the defendant was a drug dealer, denied the
defendant's request for an eyewitness identification jury
instruction, and denied the defendant's motion for a mistrial.
For the reasons stated below, we affirm the defendant's
convictions. After a thorough review of the record, we also
decline to exercise our authority under G. L. c. 278, § 33E, to
grant a new trial or to reduce or set aside the verdict of
murder in the first degree.
1. Background. We summarize the facts that the jury could
have found, reserving pertinent facts for the discussion of the
defendant's arguments.
The defendant was a drug dealer who, along with his
associates, Peterson Fleury and Tremaine Hampton, sold drugs
from a bar. Approximately two months prior to the killing,
Fleury sold $1,200 of the defendant's drugs to Sean Cox and was
given $1,100 in counterfeit money.2 The defendant was angry that
2 The Commonwealth's theory at trial, presented during their
opening statement, was that Cox purchased the defendant's drugs
from Peterson Fleury with counterfeit money. The Commonwealth
attempted to introduce this evidence through the testimony of
Tremaine Hampton, Cox, Fleury, and a bartender at the bar,
Robert Mantell. However, Hampton's testimony was struck because
it was hearsay, Cox denied he ever purchased or sold narcotics,
Fleury denied any transaction involving counterfeit money with
Cox, and the judge did not permit Mantell to testify to the
identity of the individual who used counterfeit money. Although
3
he had been deceived. He told Hampton that he was "gonna get"
the person who stole from him.
On January 5, 2010, the victim and Cox were at the bar.
Fleury, who frequented the bar, briefly talked to the victim and
Cox and then telephoned the defendant eight times between 5:36
P.M. and 6:07 P.M. Fleury told the defendant that Cox and the
victim were at the bar.
At approximately 6 P.M., the victim and Cox left through
the rear of the bar to smoke a cigarette. Shortly thereafter,
an individual in a dark, hooded sweatshirt approached Cox and
the victim and shot them. The victim stumbled back into the bar
and collapsed. After Fleury saw the victim lying on the floor
of the bar, he telephoned the defendant again. Cox survived the
shooting, but the victim did not.
Minutes after the shooting, the defendant arrived at the
home of Pamela Brown, who lived in an apartment behind the bar
and had purchased drugs from the defendant in the past. The
defendant banged on her door. Brown thought that strange
because the defendant always telephoned her before arriving at
the Commonwealth did not mention Cox as the individual who used
counterfeit money in its closing argument, defense counsel did.
In his brief, the defendant also acknowledged and argued against
the Commonwealth's original theory. Furthermore, at oral
argument the defendant conceded that there was sufficient
evidence presented at trial that Cox was the individual who used
counterfeit money to purchase the defendant's drugs.
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her apartment, but he did not do so that day. Once inside, the
defendant ran to the bathroom, where he rinsed off his
sweatshirt and hung it on the door. Later, he placed the
sweatshirt in a plastic bag. The defendant then telephoned
Hampton and instructed him to go to the bar to see if police had
arrived, but Hampton did not go.
Soon after the shooting, the defendant's girlfriend arrived
at Brown's apartment. The defendant put the plastic bag holding
his sweatshirt in his girlfriend's vehicle and placed an
unidentified object under the passenger's side seat. The
defendant's girlfriend drove away.
Hours later, Hampton and the defendant met in person, where
the defendant confessed to being the shooter. The defendant
repeatedly asked Hampton, "Can I trust you?" The defendant
stated: "[The victim] couldn't make it to the door in time. I
shot him and then I shot him again."
A few weeks later, the defendant again confessed to Hampton
about the killing. He said that "if he knew killing was this
easy, he would have been doing it" and "[i]t was just like
taking candy from a baby." The defendant also bragged that
police would never find his cellular telephone or the gun he
used in the killing because he had buried them.
Police recovered three spent nine millimeter shell casings
outside the rear of the bar, two spent nine millimeter bullets
5
from inside Cox, and another two nine millimeter bullets from
the door of the bar and inside the bar. The defendant owned two
nine millimeter guns. One of the defendant's guns was chrome
colored. A witness at the scene described the gun used in the
shooting as being silver. The witness also described the
shooter as matching the defendant's general characteristics --
height and complexion -- and testified that he was wearing a
dark, hooded sweatshirt. Multiple other witnesses testified
that they saw a man who matched the defendant's characteristics,
and who was wearing dark clothes and a hooded sweatshirt,
running from the area of the bar toward the area of Brown's
house shortly after the shooting.
A home recording surveillance system close to the bar
captured video footage of a man walking through the area
immediately after the shooting. Still photographs from that
video footage were included in evidence, and both Brown and
Hampton identified the man in the photographs as being the
defendant.
2. Discussion. a. Prior bad acts. Before trial, the
Commonwealth filed a motion in limine to allow testimony by
Hampton and two prior drug customers of the defendant, Scott
Rounds and Elayne Mahoney. The Commonwealth sought to admit
evidence of the defendant's drug distribution both before and
after the shooting as probative evidence of the defendant's
6
motive to shoot Cox and the victim and as probative evidence of
his demeanor and state of mind on the night of the killing. The
defendant opposed the admission of this testimony, arguing that
it was bad character evidence and that it was more prejudicial
than probative. The judge allowed the admission of the
testimony. At trial, the Commonwealth presented evidence from
Hampton, Rounds, and Mahoney that showed that the defendant was
a drug dealer.
The defendant argues that this evidence was admitted
improperly because it showed that the defendant had a criminal
propensity or was of bad character. He further contends that,
even if any of the evidence was potentially relevant, the
evidence was more prejudicial than probative, and therefore it
should not have been admitted. The Commonwealth argues that the
evidence was offered for the purposes of establishing the
defendant's motive as well as his state of mind on the night in
question. We conclude that the judge did not abuse his
discretion in admitting the evidence.
"It is well settled that the prosecution may not introduce
evidence that a defendant previously has misbehaved, indictably
or not, for the purposes of showing his bad character or
propensity to commit the crime charged, but such evidence may be
admissible if relevant for some other purpose." Commonwealth v.
Helfant, 398 Mass. 214, 224 (1986). See Mass. G. Evid. § 404(b)
7
(2019). Such evidence may be admissible to show, for example,
"a common scheme, pattern of operation, absence of accident or
mistake, identity, intent, or motive." Helfant, supra. "It
also may be used where evidence of the prior bad acts is
inextricably intertwined with the description of events . . . of
the killing" (quotation and citation omitted). Commonwealth v.
Marrero, 427 Mass. 65, 67 (1998).
Nevertheless, even if the evidence is relevant to one of
these other purposes, the evidence will not be admitted if its
probative value is outweighed by the risk of unfair prejudice to
the defendant. Commonwealth v. Crayton, 470 Mass. 228, 249
(2014). See Mass. G. Evid. §§ 403, 404(b)(2). "Determinations
of the relevance, probative value, and prejudice of such
evidence are left to the sound discretion of the judge, whose
decision to admit such evidence will be upheld absent clear
error" (citation omitted). Commonwealth v. Dung Van Tran, 463
Mass. 8, 14–15 (2012). The effectiveness of limiting
instructions in minimizing the risk of unfair prejudice should
be considered in balancing prejudice and probative value. See
Commonwealth v. Dunn, 407 Mass. 798, 807 (1990); Mass. G. Evid.
§§ 105, 403.
i. Hampton. At trial, Hampton testified that he had been
a friend of the defendant for approximately three years prior to
the killing. Shortly after meeting the defendant, Hampton began
8
selling drugs for him. Hampton testified that, a few months
before the shooting, the defendant told him that someone used
counterfeit money to steal the defendant's drugs from Fleury.
The defendant told Hampton that he was going to "handle it" when
he saw the person who stole the drugs.
The evidence of the defendant's activity as a drug dealer
was highly probative and relevant because it established his
relationship with Hampton as a friend and drug dealing
associate, which explained why the defendant would confide in
Hampton and established a motive for the shooting. See
Commonwealth v. Copney, 468 Mass. 405, 414 (2014). The
Commonwealth's theory of the case was that Cox stole $1,100
worth of drugs from the defendant. One of the defense
strategies was to point to another drug dealer who sometimes
worked with the defendant, Andrew Levy, as the perpetrator of
the killing. "In these circumstances, it was unavoidable that
evidence of the defendant's drug business and his interactions
with his customers would be admitted." Marrero, 427 Mass. at
68.
Moreover, the defendant's statement that he would "handle
it" indicates the defendant's intent to get revenge for the
theft. See Commonwealth v. Almeida, 479 Mass. 562, 568 (2018).
This evidence was also essential to the Commonwealth's case to
establish premeditation. See Commonwealth v. Pagan, 440 Mass.
9
84, 87–88 (2003) (prior bad act evidence admissible to show
hostile nature toward victim and premeditation of subsequent
killing); Marrero, 427 Mass. at 68 (evidence of involvement in
drug dealing business admissible where relevant to motive for
killing). Without the evidence that the defendant was a drug
dealer who sought revenge, "the killing could have appeared to
the jury as an essentially inexplicable act of violence."
Commonwealth v Bradshaw, 385 Mass. 244, 269 (1982). The
Commonwealth is permitted to present a full picture of the
events surrounding the crime, and the prejudice likely to be
generated by the admission of this evidence did not outweigh its
substantial probative value. See id. at 269-270. There was no
error.
ii. Mahoney. Mahoney testified that she bought drugs from
the defendant "[s]ometimes daily, sometimes three or four times
a week" for approximately ten months leading up to the night of
the killing. She claimed that the defendant was always a "nice
guy," "easy going," "very polite," and punctual. However, on
the night of the shooting the defendant acted differently from
his usual manner. Mahoney testified that the defendant was late
to the drug deal, was "anxious," and "wanted to get [the drug
deal] done and get out of there." The defendant told Mahoney
that "some shit just went down" and then, after completing the
drug deal, told her to "take your shit and go." Mahoney also
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testified that it was "[r]eal cold" that night and the defendant
only was wearing a T-shirt.
Mahoney's testimony was relevant and probative because it
showed the defendant's state of mind in the immediate aftermath
of the killing. See Commonwealth v. Wilson, 427 Mass. 336, 349
(1998) (evidence that shows defendant's state of mind is
probative). The defendant typically was "very polite" and
"easy-going." Yet, after the killing, he was anxious and rude.
The probative value of the defendant's state of mind in the
immediate moments following the killing is not outweighed by
cumulative evidence of his low-level drug dealing. See
Commonwealth v. Rutherford, 476 Mass. 639, 649 (2017);
Commonwealth v. Philbrook, 475 Mass. 20, 26-27 (2016).
iii. Rounds. Rounds testified that he had been a customer
of the defendant for three or four years. He claimed that the
defendant had paid his bail when he was incarcerated and that he
had been incrementally paying the defendant back. He testified
that on the night of the shooting he telephoned the defendant
four or five times to pay the defendant the money he owed.
Typically, the defendant answered when Rounds telephoned him,
but on that night, he did not answer his telephone immediately.
When the defendant finally answered Rounds's telephone call, he
abruptly ended it.
11
Although Rounds's testimony mostly was cumulative, it
showed that the defendant was in a hurry on the night of the
killing and not his usual self. The judge did not abuse his
discretion in admitting it. This evidence was relevant to the
defendant's state of mind on the night of the killing, and its
probative value and cumulative nature was not outweighed by its
potential prejudice to the defendant. See Wilson, 427 Mass. at
349.
In any event, the judge took appropriate steps to minimize
the impact of the evidence that the defendant was a drug dealer.
See Commonwealth v. Forte, 469 Mass. 469, 480-481 (2014) (no
error in admission of prior bad act evidence where, among other
things, jury instructions minimized potential for prejudicial
effect); Commonwealth v. Donahue, 430 Mass. 710, 718 (2000)
(proper jury instructions can render potentially prejudicial
evidence harmless); Mass. G. Evid. § 105. During the final jury
charge, the judge instructed that they could consider the
evidence of the defendant's prior drug dealing "solely on the
limited issue of motive and as an explanation of the
relationships between various other individuals and the
defendant."3 The jury were instructed not to use the evidence
3 The complete instruction stated:
"Now, you heard evidence in the case that the defendant
engaged in illegal drug dealing. The defendant is not
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that the defendant was a drug dealer to conclude that he also
must be guilty of the crimes charged. We presume that the jury
followed the judge's instructions. See Crayton, 470 Mass. at
251. Cf. Commonwealth v. Gomes, 475 Mass. 775, 785 (2016)
(where balance between prejudice and probative value was close,
contemporaneous limiting instructions persuaded court that bad
acts evidence was properly admitted).
Best practice would certainly have been to give a limiting
instruction at the time the evidence of the defendant's drug
dealing history was admitted. See Commonwealth v. Facella, 478
Mass. 393, 402 (2017). The timing of a limiting instruction is,
however, ultimately in the discretion of the trial judge. See
Commonwealth v. Carter, 475 Mass. 512, 526 (2016), citing Mass.
charged with any drug offenses. So you may not consider
evidence of illegal drug dealing as a substitute for proof
that the defendant committed the crimes that are charged.
Nor may you consider it as proof that the defendant has a
criminal personality or bad character. You may consider
such evidence solely on the limited issue of motive and as
an explanation of the relationships between various other
individuals and the defendant. You should not consider
that evidence for any other purpose.
"The issue for the jury to decide is whether the
Commonwealth has proven beyond a reasonable doubt that the
defendant committed the particular crimes with which he is
charged; that is, the murder of Darnell Harrison, armed
assault with intent to murder Sean Cox and unlawful
possession of a firearm. You may not use evidence that the
defendant engaged in illegal drug dealing to conclude that
he must also have committed the crimes with which he's now
charged."
13
R. Crim. P. 24 (b), 378 Mass. 895 (1979) (judge has broad
discretion as to timing of limiting instructions); Commonwealth
v. Linton, 456 Mass. 534, 551 n.12 (2010) (although "we find it
preferable that the limiting instruction be given the same day
as the testimony at issue, we do not find that the delay
materially diminished the impact of the limiting instruction on
the jury"); Mass. R. Crim. P. 24 (b) (no limitation on timing of
instructions). Here, the defendant did not ask for a
contemporaneous limiting instruction at trial. See Commonwealth
v. Leonardi, 413 Mass. 757, 764 (1992) ("the law does not
require a judge to give limiting jury instructions regarding the
purpose for which evidence is offered unless so requested by the
defendant"). Furthermore, on appeal, the defendant takes no
issue with the judge's instruction during the final jury charge.
Regardless, because the question whether the evidence was more
prejudicial than probative was not particularly close, we
conclude that there was no substantial likelihood of a
miscarriage of justice from the failure to give a limiting
instruction at the time the bad act evidence was admitted.
b. Identification instruction. During the jury charge
conference, the Commonwealth and the defendant requested
instructions regarding the identification evidence that was
admitted at trial. The Commonwealth's requested instruction was
based on the model jury instruction at the time of trial. The
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defendant sought an eyewitness instruction that aligned with the
recent report of the Supreme Judicial Court Study Group on
Eyewitness Evidence. In response, the judge stated: "[B]oth of
[the requested] instructions . . . have to do with the subject
of eyewitness identification. And we don't have any eyewitness
identification in this case. We didn't have a witness who took
the stand and said I saw the shooting." Denying both the
Commonwealth and the defendant's requested instructions, the
judge formulated an instruction based on the type of
identification that occurred in the case -- Brown and Hampton's
identification of the defendant from the still images taken from
security footage near the bar. The defendant did not object to
the instruction.
On appeal, the defendant argues that he was prejudiced by
the judge's decision not to give the defendant's eyewitness
instruction. The Commonwealth argues that the judge did not
abuse his discretion in denying the defendant's instruction
because there was no eyewitness identification in the case. We
agree with the Commonwealth.
In Commonwealth v. Gomes, 470 Mass. 352, 379-388 (2015)
(Appendix), S.C., 478 Mass. 1025 (2018), we formulated a new
provisional eyewitness instruction to be given to the jury where
there was incriminating eyewitness identification testimony
15
offered by a witness.4 Here, not only was this case tried before
Gomes, see Commonwealth v. Bastaldo, 472 Mass. 16, 23 (2015)
(provisional eyewitness instruction to be given in trials that
commence after Gomes), but there was no eyewitness
identification. The Commonwealth entered evidence that Brown
and Hampton, both of whom had an extensive relationship with the
defendant, identified him from still images taken from a
security camera near the bar. There was no witness that
directly identified the defendant as the assailant. Other
witnesses testified to generic details about the defendant's
height, clothing, and race. That testimony did not convey
"details so specific to the defendant that they essentially
serve as a partial eyewitness identification." Commonwealth v.
Johnson, 470 Mass. 389, 395 n.11 (2015). Thus, because there
was no identification testimony that incriminated the defendant,
the judge did not abuse his discretion in declining to give the
defendant's requested instruction. Id. at 396-397.
4 The provisional instruction in Gomes updated the
instruction that was adopted in Commonwealth v. Rodriguez, 378
Mass. 296, 310–311 (1979) (Appendix), S.C., 378 Mass. 296
(1979), with principles relevant to the evaluation of eyewitness
testimony for which there is at least a near consensus in the
relevant scientific community. Commonwealth v. Gomes, 470 Mass.
352, 376 (2015), S.C., 478 Mass. 1025 (2018). We have since
adopted the Model Jury Instructions on Eyewitness
Identification, 473 Mass. 1051 (2015), to replace the
provisional instruction in Gomes.
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c. Mistrial. At trial, a State police trooper, Robert
Klimas, testified on behalf of the Commonwealth. On the night
of the killing, Klimas reviewed video surveillance footage taken
inside and outside the bar. After conducting witness
interviews, Klimas testified that there were six people outside
the bar when the shooting occurred, "including the shooter."
The prosecutor asked Klimas, "Who did you identify as being
outside at the time?" In response, Klimas named the victim,
Cox, several other witnesses, and the defendant. Defense
counsel immediately moved for a mistrial. The judge denied the
motion, but struck the identification testimony and gave a
forceful curative instruction.
The defendant argues that the judge erred in denying the
defendant's motion for a mistrial. We review the decision to
deny a motion for a mistrial for an abuse of discretion. See
Commonwealth v. Bryant, 447 Mass. 494, 503 (2006). Where a
party seeks a mistrial in response to the jury's exposure to
inadmissible evidence, the judge may correctly rely on curative
instructions as an adequate means to correct any error and to
remedy any prejudice to the defendant. Id., quoting
Commonwealth v. Kilburn, 426 Mass. 31, 37–38 (1997).
We see no abuse of discretion in the judge's decision to
deny the defendant's motion for a mistrial. Klimas's testimony,
in which he identified the defendant as one of the six people
17
who were outside the bar at the time of the shooting, and
indicated that one of the six was "the shooter," was improper.
However, the judge immediately corrected the mistake by striking
the testimony and giving a forceful curative instruction. See
Kilburn, 426 Mass. at 38 (no abuse of discretion in denying
request for mistrial where judge immediately instructed jury to
disregard improper testimony and there was no reference to
improperly admitted testimony later in trial); Commonwealth v.
Chubbuck, 384 Mass. 746, 753 (1981) ("By striking the testimony
and promptly instructing the jury to disregard it, the judge did
all that was necessary to cure any possible error from the
admission of the statement"). We presume that the jurors
followed the judge's prompt and strongly worded instruction to
disregard Klimas's identification. See Commonwealth v. Durand,
475 Mass. 657, 669 (2016), cert. denied, 138 S. Ct. 259 (2017).
Moreover, at the beginning of trial the judge instructed
the jury that they were not to consider any testimony that he
struck from the record. In addition, at the conclusion of
trial, the judge instructed the jury on the specific
identification evidence that was before them. The judge did not
abuse his discretion in denying the motion for a mistrial.
3. Conclusion. We have reviewed the record in its
entirety and see no basis to grant extraordinary relief under
18
G. L. c. 278, § 33E. For the above reasons, we affirm the
defendant's convictions.
So ordered.