Commonwealth v. Kimberly McCullough. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-957
COMMONWEALTH
vs.
KIMBERLY MCCULLOUGH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant
was convicted of armed robbery, assault and battery by means of
a dangerous weapon, and armed assault in a dwelling. On appeal,
the defendant maintains that testimony by a police officer,
elicited on the Commonwealth's redirect examination, violated
the protections enunciated in Doyle v. Ohio, 426 U.S. 610, 611,
616-619 (1976). We affirm.
The defendant and the victim had a history of engaging in
sex and using cocaine. During one such encounter, the
defendant's boyfriend rushed into the room wielding a wooden
table leg and attacked the victim; a melee ensued. The
defendant took the victim's cell phone and backpack; after the
three tumbled down a flight of stairs together, the victim
regained his backpack.
When police arrived (summoned by a neighbor), the victim
was bleeding from the head. The defendant and her boyfriend
were located less than fifty yards away. There, the defendant
told an officer that she had drugs on her person.
At trial, a different police officer testified that he took
the victim for a "quick drive in the cruiser" past the spot
where the defendant and her boyfriend were standing. The
testifying officer never spoke with the defendant during this
drive-by identification. He did, however, "interact" with the
defendant later at the police station.
The challenged testimony relates to these two moments: the
scene where the defendant was apprehended and the "interaction"
at the station. On cross-examination, counsel asked the
officer, "You didn't speak to my client, [the defendant]?" and
the officer responded, "No, I didn't." Counsel also asked, "And
your report also notes that [the defendant] stated openly that
she did have some -- a little bit of marijuana and cocaine on
her?" to which the officer responded, "Yes."
On redirect, the prosecutor asked:
Q: "Okay. And did you have much one-on-one interaction
with [the defendant]?"
A: "When we got back to the police station."
Q: "Okay. But on scene, you didn't interact with her?"
A: "No."
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Q: "Okay. And she didn't say anything to you about what
happened on scene?"
A: "No."
Defense counsel objected and, at sidebar, explained that
she viewed the questioning as inappropriately shifting the
burden to the defendant, who had a "right to silence." The
judge agreed to sustain the objection and later did so. 1 During
the ensuing conversation at sidebar, the prosecutor explained
that he had been "trying to clarify" that the officer was not
the one who had interacted with the defendant at the scene, and
that the officer "didn't actually talk to her himself about the
drug stuff." The judge indicated that he "may have heard [the
testimony] the same way" as the prosecutor.
When the prosecutor rephrased the question, he made clear
(1) that he was following up on the question asked during cross-
examination about the defendant's admission to having drugs, and
(2) that the admission was made to another officer, not to the
testifying officer. There was no objection to this testimony.
As we understand the defendant's argument, she maintains
that a Doyle error arose because the officer inappropriately
testified that the defendant spoke to him, but, when she did,
she said nothing about what had happened at the scene. Like the
1 Although the judge initially agreed to strike the answer, that
was not part of his eventual ruling. Counsel did not request
again that the answer be stricken.
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trial judge, we do not understand this to have been the
officer's testimony. Rather, provoked by the questions on
cross-examination, on redirect the prosecutor sought to have the
testifying officer clarify that the defendant's statement at the
scene (about having drugs) was made to a different officer.
Even generously reading the testimony as the defendant
proposes, we discern no Doyle error. First, as counsel
acknowledged during oral argument, no motion to suppress was
filed, and the record contains no evidence as to when the
defendant was arrested, or when and whether she received her
Miranda rights. Therefore, we do not know whether the defendant
had been provided with her Miranda rights when she interacted
with the testifying officer at the police station. Doyle is
implicated only after a defendant has been advised of her
Miranda rights. See Commonwealth v. Mahdi, 388 Mass. 679, 694
(1983), citing Doyle, 426 U.S. at 619.
Second, "Doyle held that the exercise of one's Miranda
rights could not be used for impeachment purposes for two
reasons: (1) the inherent ambiguity of silence 'because of what
the State is required to advise the person arrested'; and
(2) the implicit assurance of the Miranda warnings that the
defendant's exercise of the announced right will carry no
penalty." Mahdi, 388 Mass. at 695, quoting Doyle, 426 U.S. at
617-618. See Commonwealth v. Lodge, 89 Mass. App. Ct. 415, 418-
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419 (2016). Here, there was no evidence that the defendant
spoke to the testifying officer, or of what she said to him if
she did speak. The testifying officer did not speak with the
defendant on the scene, and only "interact[ed]" with the
defendant at the police station. The nature of this
"interaction" was not before the jury. The officer may have
booked the defendant, fingerprinted her, allowed her to make a
telephone call, or had a conversation with her -- we do not
know. Because we know neither whether the defendant spoke or
remained silent, nor whether she received or invoked her Miranda
rights, this testimony did not implicate Doyle.
Judgments affirmed.
By the Court (Meade,
Hershfang & D'Angelo, JJ. 2),
Clerk
Entered: December 28, 2023.
2 The panelists are listed in order of seniority.
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