Opinion
18-P-301
12-28-2020
COMMONWEALTH v. ADRIENNE BROWN.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial on an indictment charging murder in the first degree of Brian Jones (the victim), the defendant was convicted of the lesser included offense of manslaughter. On appeal, she claims error in the admission of witnesses' opinion testimony, and in the admission of a photograph of knives. She further claims that the admission of character testimony regarding the victim and the victim's statement after being stabbed, as well as the prosecutor's closing argument, created a substantial risk of a miscarriage of justice. We affirm.
1. Witness testimony. The defendant claims that the judge erred when he admitted opinion testimony from four witnesses that the defendant claims bore on the reasonableness and credibility of her self-defense claim. We disagree.
The testimony from the witnesses at issue, who were at the scene of the stabbing, can be summarized as follows: based on their observations, they were not concerned for the defendant's safety, the victim had not threatened the defendant, neither the defendant nor the victim had been aggressive, and the victim did not hit the defendant. Because the defendant objected, we review to determine whether the admission of the challenged testimony was erroneous and, if so, whether the error was prejudicial. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 389 (2017).
The defendant invites us to review the admission of the challenged testimony as "constitutional error" because the witnesses opined on the "ultimate issue" for the jury in this case, which was whether the defendant acted in self-defense. The defendant offered no supporting authority for such review and we decline the invitation.
In support of her claim, the defendant relies on Commonwealth v. Jones, 319 Mass. 228, 230 (1946), in which the Supreme Judicial Court held that
"[a] witness could relate any facts within her observation bearing upon the issue of self-defence, [but] it was for the jury to say whether the defendant was put in reasonable apprehension of immediate personal violence at the hands of the deceased. The individual opinion of a bystander upon this issue [is] immaterial."In Jones, the witness was asked whether, when she saw the victim coming from the kitchen with two plates in her hand, she believed that the victim "was about to [cause the defendant] serious harm." Id. The question was improper because it asked the witness to render an opinion as to whether the defendant had cause to act in self-defense, where instead, it was for the jury to determine whether the defendant was put in reasonable apprehension of immediate violence at the hands of the victim. See Commonwealth v. Baker, 346 Mass. 107, 122 (1963) (improper question in Jones "sought a bystander's contemporary opinion as to what the defendant was about to do"). The Jones court noted however, that the witness could relate "any facts within her observation bearing upon the issue of self-defence." Jones, supra.
Here, as summarized above, the witnesses' testimony could fairly be characterized as being based on their observations. The witnesses did not, and were not asked to, speculate as to whether the victim intended to threaten or harm the defendant. Rather, they were asked whether the victim behaved in a menacing or violent manner, and whether his demeanor caused them any concern. The witnesses described their assessment of the scene, and they did not opine on either the victim's or the defendant's state of mind. Fairly read, the witnesses' testimony did not interfere with the province of the jury. See Commonwealth v. Orben, 53 Mass. App. Ct. 700, 704 (2002). There was no error.
2. Photograph of the knives. The defendant next claims the judge abused his discretion when he admitted in evidence (over objection) a photograph of three knives that were seized from the defendant's bedside drawer after she stabbed the victim. We disagree.
Prior to trial, the defendant filed a motion in limine to exclude the photograph of the three knives because there was no assertion that any of the knives were used to stab the victim. Based on his understanding that the defendant was going to argue self-defense, and there would be no question that she was armed, the judge agreed with the defendant and excluded the photograph. But, the judge warned the parties that should the defendant alter her strategy, he would revisit the matter.
The defendant testified that she was unarmed when she encountered the victim that day. However, according to the defendant, when she feared for her life, she picked up a knife the victim had dropped, and used it to stab him. This prompted the prosecutor to ask the judge to revisit the prior ruling. Relying on Commonwealth v. Otsuki, 411 Mass. 218, 236 (1991), the judge stated that the defendant's testimony created a question of the defendant's ability to possess the means to commit the alleged offense. The judge decided that the "balance ha[d] changed," and while still mindful of the potential prejudice to the defendant, permitted the Commonwealth to enter the photograph into evidence.
"Where a weapon definitively could not have been used in the commission of the crime, [the Supreme Judicial Court has] generally cautioned against admission of evidence related to it." Commonwealth v. Watt, 484 Mass. 742, 750 (2020), quoting Commonwealth v. Barbosa, 463 Mass. 116, 122 (2012). While the admission of testimony that the defendant Watt possessed a firearm unrelated to that case was deemed an error, there was no real question about Watt's ability to access firearms. See Watt, supra. However, the Supreme Judicial Court has never "unconditionally disapproved of the admission of weapons-related evidence unconnected to the commission of a crime." Barbosa, supra. For example, such evidence is admissible where, as here, it "speaks to the defendant's ability to possess the means to commit the crimes alleged." Otsuki, 411 Mass. at 236.
Given the judge's direct reliance on Otsuki, the change in circumstances revealed in the defendant's testimony, and the judge's careful weighing of the various considerations underlying the decision to admit the photograph, we are hard pressed to conclude the judge's "decision falls outside the range of reasonable alternatives," so as to constitute an abuse of discretion. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Even if we concluded otherwise, the photograph did not prejudice the defendant. The prosecutor argued that the knives were evidence that the defendant deliberately premeditated the stabbing, but the jury did not convict the defendant of first-degree or second-degree murder. See Commonwealth v. Medina, 81 Mass. App. Ct. 525, 531 n.7 (2012).
Contrary to the defendant's claim, the prosecutor's argument did not use the photograph as propensity evidence or to portray the defendant as a violent, knife-carrying person when the prosecutor argued that the defendant stabbed the victim with her own knife, as she "had a whole drawer full to choose from." Rather, this was directly related to the defendant's access to the means to commit the crime, i.e., the ground on which the judge admitted the evidence. It is noteworthy that the defendant did not make this claim after arguments closed.
3. Closing argument. The defendant next claims that in the prosecutor's closing argument, she improperly suggested that the defendant had "tailored" her testimony to fit the parameters of her self-defense claim, and that her testimony was "self-serving." There was no objection at trial, but the defendant now claims the argument was improper and created a substantial risk of a miscarriage of justice. See Commonwealth v. Chambers, 93 Mass. App. Ct. 806, 821 (2018). We disagree.
In a few moments during the prosecutor's argument, she used the now challenged language:
"Now, I'd suggest to you the defendant cannot claim that she was acting in self-defense when it was she that initiated the confrontation with [the victim]. I'd suggest to you [the defendant] has tailored her testimony to fit within the legal parameters of self-defense, even though everything she said from that witness stand was belied by all of the evidence and all of the other testimony you heard in this case."Later, the prosecutor stated,
"Now, the defendant testified here yesterday, and you heard her self-serving account of what she said happened on that particular day. She claims that she pulled up to her apartment and there was no sign of [the victim]. Again, that is contradicted by all of the evidence in this case."Finally, the prosecutor argued,
"[The victim] never brandished a knife. [The victim's] knife never came out of his pocket. [The victim's] knife never fell to the ground and the defendant never picked up [the victim's] knife to protect herself. Ladies and gentlemen, again, the defendant has tailored her testimony to comport with this idea that she was acting in self-defense."
Contrary to the defendant's claim, the challenged remarks did not suggest "that the defendant was present at trial and therefore had the opportunity to tailor [her] testimony." Commonwealth v. Alphonse, 87 Mass. App. Ct. 336, 338 (2015). Here, and despite the ill-chosen use of the word "tailored," and the phrase "self-serving," the prosecutor's argument was not that the defendant altered her testimony to match the evidence heard during trial, which is, in general, an impermissible argument. See id. See also Commonwealth v. Mendez, 476 Mass. 512, 521-522 (2017). Rather, quite the opposite, the prosecutor repeatedly stressed that the defendant's testimony was inconsistent with the evidence provided by the other witnesses. Again, the defendant did not object at trial. See Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 56 (2009) ("the lack of an objection by defense counsel is further indication that the remark[s were] not unfairly prejudicial in tone, manner, or substance"). There was no error.
Even if the challenged remarks were improper, they constituted isolated statements in a much longer argument, the thrust of which was that the evidence adduced at trial was inconsistent with the defendant's version of events and consistent with a verdict of first-degree murder. See Commonwealth v. Ortiz, 435 Mass. 569, 579 (2002). Most importantly, the jury did not find the defendant guilty of first-degree murder, instead convicting her of manslaughter. This lends credence to the notion that the jury did believe the defendant's self-defense claim, but also that she used excessive force in defending herself. See Commonwealth v. Garcia, 482 Mass. 408, 410-411 (2019). Bearing in mind that statements made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury, see Commonwealth v. Cole, 473 Mass. 317, 333 (2015), we conclude that if there was error, it did not create a substantial risk of a miscarriage of justice.
4. Witness descriptions of the victim. The defendant also claims for the first time on appeal that the prosecutor improperly elicited testimony from certain witnesses regarding the victim's good character. According to the defendant, these unobjected-to descriptions created a substantial risk of a miscarriage of justice. We disagree.
Trial counsel did object when Donna Graham described the victim as "happy-go-lucky" and "nice." Because the judge sustained the objection, and told the jury to disregard the remarks, we will assume the jury heeded that instruction and focus on the remaining challenged remarks. See Commonwealth v. Andrade, 468 Mass. 543, 549 (2014). See also Commonwealth v. Silanskas, 433 Mass. 678, 701 (2001) (improper statement cured when judge sustained defense objection and gave curative instruction).
The witnesses described the victim as "friendly" with his neighbors, a "good person," a "happy-go-lucky kind of guy," and that he "didn't seem like a bad person." No objections were lodged to any of this testimony. In this posture, we review to determine if there was error and, if so, whether that error created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002).
It is permissible to "tell the jury something of the person whose life [has] been lost in order to humanize the proceedings" (citation omitted). Commonwealth v. Degro, 432 Mass. 319, 323 (2000). The witnesses testified in general terms that the victim had been a friendly neighbor. There was no overt appeal to sympathy engendered in the prosecutor's questions. The descriptions of the victim played little to no role in the prosecutor's closing argument, and the judge specifically instructed the jurors that they "must follow the law" and they must do their "duty as jurors regardless of any personal likes or dislikes, opinions, prejudices or sympathy." See Commonwealth v. Mejia, 463 Mass. 243, 253 (2012). Thus, even if there was an error, it did not create a substantial risk of a miscarriage of justice.
5. The victim's statements. Finally, the defendant claims error in the admission of the victim's statements, made after he had been stabbed, "This bitch is going to jail; she stabbed me." There was no objection to these statements, and we review for error, and if any, whether it created a substantial risk of miscarriage of justice. See Randolph, 438 Mass. at 297.
The defendant concedes that the statements were admissible under the spontaneous utterance exception to the hearsay rule. See Commonwealth v. Hurley, 455 Mass. 53, 64 (2009). However, the defendant claims that the statements had low probative value because the identity of the victim's assailant was not in question, and the prejudicial effect was high. Specifically, the defendant claims the statement that she was going to jail was essentially a legal opinion that improperly placed the penalty she faced before the jury. We disagree.
This case involves the fatal stabbing of the victim. The judge was not required to sua sponte strike the victim's statement, which added at best cumulative evidence of the identity of his assailant. At worst, it mentioned a potential punishment the defendant would face. At the same time, we know that jurors are not divorced from their common sense on empanelment. See Commonwealth v. Mutina, 366 Mass. 810, 820 (1975) ("Juries are generally instructed by judges in their charges and urged by counsel in their argument that they must not leave their common sense outside the jury room"). In other words, it is simply not reasonable for us to conclude that the dying victim's prognostication of the defendant's penological fate in any way affected the jury's verdict. There was no abuse of discretion in the admission of the victim's statement, and thus, there is no risk that justice miscarried.
The defendant also claims that the failure to seek exclusion of this testimony constituted ineffective assistance of counsel. Given our resolution of the claim, there is no need to resolve this claim. See Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 100 (2010) (admission of statement that did not create substantial risk of miscarriage of justice cannot form predicate for claim of ineffective assistance of counsel for not attempting to exclude it).
Judgment affirmed.
By the Court (Meade, Blake & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 28, 2020.