Commonwealth v. Shruhan , 89 Mass. App. Ct. 320 ( 2016 )

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14-P-382 Appeals Court
COMMONWEALTH vs. TIMOTHY SHRUHAN.
No. 14-P-382.
Suffolk. October 1, 2015. - April 19, 2016.
Present: Cypher, Milkey, & Massing, JJ.
Assault and Battery by Means of a Dangerous Weapon. Evidence,
Hearsay, Admitted without objection, Prior misconduct,
Argument by prosecutor, Identification. Practice,
Criminal, Hearsay, Failure to object, Argument by
prosecutor, Instructions to jury. Identification.
Indictment found and returned in the Superior Court
Department on April 15, 2011.
The case was tried before Thomas A. Connors, J.
Charles W. Rankin (Kerry A. Haberlin with him) for the
defendant.
Paul B. Linn, Assistant District Attorney, for the
Commonwealth.
CYPHER, J. The defendant, Timothy Shruhan, appeals from
his conviction by a Superior Court jury on August 24, 2012, of
aggravated assault and battery by means of a dangerous weapon,
G. L. c. 265, § 15A(c). Now, with new counsel, he seeks a new
2
trial, alleging that cumulative errors in the admission of
inflammatory evidence1 and that the prosecutor's appeals to the
jury's emotions created a substantial risk of a miscarriage of
justice. We affirm.
Background. On the afternoon of September 11, 2006,
Timothy Cahill stopped at The Quencher Tavern (Quencher), a
neighborhood bar near a community center where he worked in the
South Boston section of Boston, met his father briefly, and
ordered a cheeseburger to go. While he was walking on I Street
back to work, a man he did not know, later identified as the
defendant, rushed out of the driver's seat of a nearby parked
automobile, yelling, "Hey, Joey." The defendant, mistaking
Cahill for a South Boston man (Joe Pano), apparently aimed to
settle a score over a stolen item. He stabbed Cahill in the
abdomen causing life threatening injuries. Both "kind of
stumbled" and the victim, who was immediately aware that he had
been stabbed, put one hand on his wound and ran to the Quencher.
More than once, he exclaimed, "I'm not Joey."
1
Prior to trial, the defendant filed a motion in limine,
which was denied. Generally a motion in limine is insufficient
to preserve a party's appellate rights on an evidentiary issue
unless that party makes a proper objection at trial. See
Commonwealth v. Whelton, 428 Mass. 24, 25 (1998). "Without an
objection at trial, which gives the judge an opportunity to
reconsider the issue in context, any harm resulting from a
ruling in limine is purely speculative." Commonwealth v. Joyce,
464 Mass. 16, 18 (2012).
3
The defendant gave chase but soon quit and ran back to the
car, still occupied by his companion, Robert Glavin. The
defendant drove off but not before a passerby, Jessica Bianco,
had memorized the car's license plate number. Upon reaching her
home on East Sixth Street, Bianco telephoned the police and
passed on her observations. She had noticed the Infiniti emblem
on the rear of the car and described it as silver in color and
bearing Massachusetts license plate number 65VB42.
At the restaurant, several patrons and friends attempted to
stop the bleeding from the stab wound and called for emergency
assistance.2 Extraordinary measures implemented by an off-duty
Boston firefighter, Frederick Finn, and the quick assistance of
others in the restaurant, saved Cahill's life. Cahill was soon
transported to the Boston Medical Center (BMC). Dr. Peter
Burke, one of a team of physicians who performed the emergency
surgery, testified as to the extensive injuries and
complications that the victim had sustained. Cahill required
several surgeries and some four months to recover.
With only the information on the attacker's
misidentification of Cahill as Joey Pano, and no witnesses or
any physical evidence at the scene, the police were unable to
2
Cahill told Kim Connolly, one of the friends who came to
his aid, that he did not know who had stabbed him, but said that
the attacker thought that he was Joey Pano, and that he had
protested that he was not Pano.
4
find the car or determine the identity of the attacker until
2009, after the car had been located and their investigation led
them to the defendant, Robert Glavin, and other acquaintances of
the defendant.3
Jill McIntyre testified that on the afternoon of September
11, 2006, the defendant and Glavin left her house in the
midafternoon and returned after 3:30 P.M. She observed that
they "were very sweaty and very shaky" upon their return.
McIntyre overheard the defendant say that they had "fucked up"
and "got the wrong person."
The defendant telephoned Maryanne McColgan, the mother of
his two children, and asked her to drive to a nearby fast food
outlet where he and Glavin would be waiting. At trial, McColgan
testified that when she picked them up, both men appeared to be
"a little nervous, kind of just not themselves." McColgan drove
a short distance on West Broadway Avenue before both men got out
of her car near a Massachusetts Bay Transportation Authority
(MBTA) train station.
3
The car was found on a street in the Dorchester section of
Boston in 2008. At that time, it had a different license plate
than the one observed at the scene of the stabbing, but that
license plate was found in the trunk of the car. Police traced
the car through its vehicle identification number (VIN) to its
owner, and found that it was used by the owner's boyfriend,
Stephen Noltemy, who testified that he had sold it to the
defendant.
5
Glavin testified that he had been in the Infiniti with the
defendant on I Street that afternoon and had pointed out a
person he believed to be Joseph Pano. According to Glavin, "We
pulled over. He [the defendant] jumped out of the car. I
turned around and looked out the back of the car and I seen
(sic) him stab the kid and then run back to the car and then we
4
drove away."
The defense was based on a theory of mistaken
identification and misdirection by the Commonwealth. Through
cross-examination of the Commonwealth's witnesses, defense
counsel elicited testimony that Cahill had identified Stephen
Noltemy, see note 3, supra, as his assailant and had not
selected the defendant, even though his photograph was included
in the same photographic array. The defendant also established
that he had not been identified by any percipient witness. In
addition, on cross-examination of Glavin, McIntyre, and Noltemy,
defense counsel attempted to demonstrate that the three had a
history of drug use and that Glavin and Noltemy also had a
history of petty crime, rendering them all less than credible
witnesses.
Discussion. The defendant broadly asserts that this case
was not properly tried, claiming that the "prosecutor succeeded
4
Glavin informed the jury that he had pleaded guilty in
2011 as an aider or abettor.
6
in getting before the jury patently inadmissible evidence --
some of it was hearsay, some of it was minimally probative but
highly prejudicial, and all of it served only to evoke sympathy
for Cahill and ire for Shruhan." More specifically, the
defendant focuses on the admission of testimony of the victim's
parents, relatives, and friends, all of whom, the defendant
says, evoked ire against him and sympathy for the victim;
certain testimony from a Boston police officer who stated that,
in his presence, Cahill had voiced misgivings of an earlier
pretrial identification, which he made from a photo array; and
the prosecutor's closing argument, which, the defendant asserts,
was inflammatory and prejudicial.
1. The testimony of the victim's parents, relatives, and
friends. The defendant argues that the "sheer number of
witnesses called to testify to Cahill's injuries is troubling."
The defendant asserts that the testimony was irrelevant,
emotionally-fraught, and inadmissible. He claims that certain
accounts of Cahill's injuries were sensationalized. The
defendant supports this argument with references to the
testimony of family members present at the Quencher, whose
testimony describe the efforts made to control Cahill's bleeding
and prepare for the arrival of medical assistance and his
transport to a hospital.
7
The primary difficulty with the defendant's argument,
however, is that at trial the defendant offered no resistance to
the testimony. The defendant's strategy was made quite plain
when his counsel delivered the opening statement, outlining what
would be a recurring theme in the case. Counsel told the jurors
that they would hear from "a whole lot of witnesses and . . .
hear a whole lot of evidence" that he predicted would have
"nothing to do with whether [the defendant] is guilty of
something." Counsel also told the jurors that they may feel
"intense sympathy for [the victim] and his family," and he
advised them that emotion had nothing to do with their decision
in the case. By describing the case in these terms, counsel
prepared the jurors for what would follow in the Commonwealth's
case, suggesting that the presentation of witnesses was an
effort by the Commonwealth, deliberate and purposeful, to
distract the jurors and make its case appear to them to be
stronger than it was in actuality. Counsel suggested that
"eighty or ninety percent of the evidence [that] the
Commonwealth is going to present -- I mean they have to present
it, but it doesn't have a lot to do with the identity of the
person who stabbed Tim Cahill." Counsel returned to this theme
again in his closing argument, imploring the jury to acquit and
asserting that the Commonwealth did not have the facts or law on
its side.
8
Having elected to pursue this approach at trial, the
defendant cannot change tactics on appeal based on the fact that
he did not achieve the desired result. "Counsel may not try a
case on one theory of law, and then obtain appellate review on
another theory which was not advanced at trial. . . . Appellate
review should not be the occasion to convert the 'consequences
of unsuccessful trial tactics and strategy into alleged errors
by the judge.'" Commonwealth v. Lazarovich, 410 Mass. 466, 476
(1991), quoting from Commonwealth v. Johnson, 374 Mass. 453, 465
(1978). See Commonwealth v. Adams, 434 Mass. 805, 813-814
(2001) (regardless of specific tactical reason for proceeding in
a certain manner and regardless of its net effect, the fact that
it was part of an apparent trial strategy weighs heavily in
determining the existence of unfair prejudice).
In any event, there was no substantial risk of a
miscarriage of justice. A fair reading of the testimony does
not support a conclusion that the testimony was unduly
prejudicial to the defendant. None of the testimony did more
than describe the shock family members and friends experienced
and their awareness that Cahill's injuries were serious. None
of the testimony is directed at the defendant who was unknown to
them at the time. Much of the testimony supports the
evidentiary basis for the "serious bodily injury" element of the
charged crime pursuant to G. L. c. 265, § 15A. There was no
9
error in the admission of the testimony, but considering the
defense strategy, even if the testimony should not have been
admitted, it did not create a substantial risk of a miscarriage
of justice.
2. Testimony of police Officer Robert Flynn, Jr. The
defendant argues that the testimony of police Officer Robert
Flynn, Jr., in which he stated that Cahill had recanted his
pretrial identification of Noltemy, created a substantial risk
of a miscarriage of justice.5 According to the defendant, this
"rank hearsay eviscerated" the defendant's exclusive defense.
Again, the defendant's argument on appeal is precluded by the
trial strategy adopted by defense counsel. Although the
defendant objected at first to Officer Flynn's testimony,
defense counsel withdrew the objection.6 In closing argument,
defense counsel addressed Flynn's testimony about Cahill's
recantation of his identification of Noltemy by arguing that the
testimony was "baloney," and that Cahill honestly believed
Noltemy was the stabber, but that the Commonwealth had called
Flynn to testify only because it wanted to "make their case a
5
Sometime after Cahill had identified Noltemy, he was out
with friends, including Officer Flynn. Cahill told Flynn that
he had "messed up" and identified the wrong person.
6
"Hearsay, once admitted, may be weighed with the other
evidence, and given any evidentiary value which it may possess."
Commonwealth v. Keevan, 400 Mass. 557, 562 (1987), quoting from
Mahoney v. Harley Private Hosp., Inc., 279 Mass. 96, 100 (1932).
10
little better than it is." Thus, once again, defense counsel
did not object to the evidence but instead embraced it and
attempted to use it to demonstrate the Commonwealth was trying
to mislead the jury. See Commonwealth v. Adams, 434 Mass. at
813-814. There was no error in the admission of the hearsay in
these circumstances, but even if there was, it did not create a
substantial risk of a miscarriage of justice.
3. Alleged bad character evidence. The defendant argues
that the prosecutor improperly impugned his character by
attempting to admit evidence that would unfairly prejudice the
defendant. One example pointed to by the defendant, testimony
that Glavin had warned McIntyre to watch out for the defendant
because he had killed someone, was not before the jury because
the judge prohibited the prosecutor from eliciting that hearsay.
When, later, Glavin testified that he had told McIntyre to
"watch out for the defendant" the judge sustained the
defendant's objection. Although the jury heard the testimony,
they had no reason to believe that it was a reference to
anything but the stabbing. The judge also struck McIntyre's
reference to seeing the defendant in the lock-up. The judge
found that this was a "very glancing reference" and that it did
not specify that it was the defendant rather than McIntyre who
was in the lockup. The judge rejected the defendant's motion
for a mistrial and provided the jury with a curative instruction
11
about testimony in which an objection is sustained or where such
testimony has been struck. The judge gave the same instruction
in the final charge. The jury is presumed to follow the
instructions given by the judge. See Commonwealth v. Roby, 462
Mass. 398, 413 (2012). The testimony challenged by the
defendant either was not heard by the jury, was stricken, or was
the subject of a curative instruction. There was no error, and
in particular, no error that could have affected the verdict.
4. Prosecutor's closing argument. The defendant raises
several alleged missteps by the prosecutor in closing argument.
Defense counsel did not object during the Commonwealth's
closing. The defendant has a considerable burden to demonstrate
that an alleged error, or combination of errors, by the
prosecutor in closing argument, caused a substantial risk of a
miscarriage of justice. See Commonwealth v. Amirault, 424 Mass.
618, 650-652 (1997). "A mere possibility of a different outcome
will not satisfy this burden." Id. at 652. If that were the
governing standard then virtually, any forceful and enthusiastic
remark voiced by a prosecutor would meet that test.
a. The prosecutor began his argument by stating that
"[w]hat is most disturbing about this case is . . . that Timothy
Shruhan stabbed the wrong man." The defendant asserts that this
statement impermissibly asked the jury to put itself into
Cahill's position, causing them to think, "[i]t could have been
12
me." Because the prosecutor went on to describe the case as "a
senseless, stupid stabbing," we perceive nothing in that
characterization of the case that suggests to the jury that they
should view the case from Cahill's position.
b. The defendant complains that the prosecutor improperly
referred to Cahill's injuries and the heroics of his relatives
and friends who came to his aid. We have already noted that
this evidence was admitted without objection and determined that
it was not prejudicial to the defendant, particularly in the
context of the defense. In any event, the judge gave a clear
instruction to the jury that they were to disregard sympathy and
emotion in arriving at a verdict. We presume that the jury
followed the instruction. See Commonwealth v. McGee, 469 Mass.
1, 12 (2014).
c. The defendant argues that the prosecutor referred
several times to September 11 as an improper appeal to the
jury's emotions, asserting that the prosecutor capitalized on a
coincidence of timing with the "[fifth] anniversary of the 9/11
terrorist attacks." He also asserts that the Quencher is a
"firefighter hang-out." This argument appears to be an effort
by the defendant to enhance his claim that the entire case was
tried improperly through the use of inflammatory evidence. It
was inevitable that the date of September 11 would come up in
this trial, after all, it was the date of the crime. In noting
13
the date of the crime, the prosecutor referenced September 11 on
several occasions. While such repetition was unnecessary and
perhaps dramatic, we expect that the jury in this case were able
to recognize rhetoric and hyperbole. See Commonwealth v.
McLaughlin, 431 Mass. 506, 511-512 (2000). Even if the
multiplicity of references to the date was error, it did not
create a substantial risk of a miscarriage of justice.
d. The defendant claims that the prosecutor improperly
asked the jury to "hold [Shruhan] responsible today," and "to
return verdicts of aggravated assault and battery by means of a
dangerous weapon." We do not think that these comments may be
viewed as impermissible exhortations or, even if error,
constituted a substantial risk of a miscarriage of justice.
Compare Commonwealth v. Sanchez, 405 Mass. 369, 375-376 (1989).
e. The defendant claims that the prosecutor misrepresented
identification evidence by asserting that, in closing argument,
the prosecutor stated that Cahill and witnesses O'Keefe and
Bianco identified the defendant. There is no merit in this
assertion. The prosecutor did not state "unequivocally" or
imply that in the aftermath of the stabbing any of the three had
identified the defendant.
Conclusion. We have carefully considered all of the
alleged errors in the prosecutor's closing in the context of the
entire case as it unfolded over the span of five trial days,
14
including the judge's charge. In view of the strength of the
Commonwealth's case and the judge's repeated warnings to the
jury not to decide the case based on sympathy, we conclude that
any of the prosecutor's closing remarks, some of which were less
than helpful or unnecessary, did not materially influence the
jury's verdict.
Judgment affirmed.