Opinion
19-P-548
07-17-2020
COMMONWEALTH v. KERR CARRINGTON.
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
Following a bifurcated trial in the Superior Court, a jury convicted the defendant, Kerr Carrington, of larceny over $250, attempting to commit a crime, and being a common and notorious thief in violation of G. L. c. 266, § 40. On appeal, the defendant contends that the judge erred in admitting recordings of four calls the defendant made while incarcerated, and in denying his request for a limiting instruction. He also contends that certain statements in the prosecutor's closing argument improperly vouched for one of the Commonwealth's witnesses. We affirm.
After the jury found the defendant guilty of larceny over $250 and attempting to commit a crime, a second trial was held before the same jury on the common and notorious thief charge. The jury likewise found the defendant guilty of that crime.
Background. In April 2010, the victim, the owner of an automobile repair shop in Wakefield named "Auto-Thentic," learned of an overdraft on his business's bank account. Upon further investigation, the victim discovered that two checks -- one for $10,000, the other for $5,000 -- had been drawn on the account. He had neither initiated nor authorized anyone to initiate those transactions. The checks also revealed several discrepancies, including listing the business address as "40 Saint Botolph, Boston, MA 02116," an address with which the victim was not familiar.
In one of the jail call recordings played for the jury, the defendant identified "40 Saint Botolph, Boston, MA 02116" as the address of his sister, Keidi Carrington.
The defendant perpetrated these fraudulent transactions. He did so by initiating a series of telephone calls from the jail where he was incarcerated. In all but one instance, the defendant placed outgoing calls to an acquaintance (hereinafter, key witness), whom the defendant would then ask to connect him to a third party. Each of these calls was recorded and tracked. Prior to trial, the defendant moved to suppress four recordings of the defendant's calls from the jail. The judge denied the motion after a nonevidentiary hearing, and the four recordings were played for the jury. The defendant also requested that a limiting instruction be given to the jury pertaining to the recordings, which the judge also denied. The jury convicted the defendant of all charges.
The key witness identified the defendant at trial and testified that she was familiar with his voice from having met him in person on prior occasions.
The first of the four calls at issue was placed directly to the defendant's mother. The second and third calls were placed to the key witness, whom the defendant then asked to initiate a three-way call with his mother. The fourth call, during which the defendant effectuated the fraudulent transactions, was also initially placed to the key witness, whom the defendant asked to connect him with an 800 number that belonged to Citibank.
The defendant subsequently renewed his motion to suppress the recordings, and in the alternative, moved in limine to exclude the recordings from evidence. The judge also denied these motions.
Discussion. 1. Admission of jail calls. The defendant first contends that the statements of the nontestifying individuals (other than the defendant) audible on the jail call recordings were proffered for the truth of the matter asserted, and were thus inadmissible. We disagree. "Since the defendant timely objected, we review the judge's admission of the purported hearsay evidence for abuse of discretion." Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 587 (2013). Questions posed by the defendant's mother and the Citibank representative are not hearsay, for a question is not a "statement," which requires an "assertion." Mass. G. Evid. § 801(a), (c) (2020). Certain statements made by the defendant's mother in the first jail call informed the defendant that his sister was desperate for money to pay her mortgage, and were thus admissible as evidence of the defendant's motive. See, e.g., Commonwealth v. Woollam, 478 Mass. 493, 499 (2017), cert. denied, 138 S. Ct. 1579 (2018) ("the text messages, which were offered to show proof of motive for the killing, were admissible under the state of mind exception to the hearsay rule"); Commonwealth v. Daley, 439 Mass. 558, 569 n.8 (2003).
The defendant briefly argues that the recordings contain, in part, multi-level hearsay -- an argument he appears to raise for the first time on appeal. Even if the judge erred in admitting these statements, however, the admission of this information neither created a substantial risk of a miscarriage of justice nor resulted in prejudicial error. See Commonwealth v. Johnson, 429 Mass. 745, 749 (1999) (no substantial risk of miscarriage of justice "where the evidence of the defendant's guilt was overwhelming"); Commonwealth v. Wilson, 427 Mass. 336, 348-349 (1998).
Finally, to the extent the remaining statements not made by the defendant do not qualify under these exceptions, they are nevertheless admissible as "[e]vidence of the attendant circumstances [that] may aid the jury in reaching a verdict by giving them the complete picture." Commonwealth v. Harris, 376 Mass. 201, 207 (1978), quoting Hartnett v. McMahon, 168 Mass. 3, 4 (1897). See Commonwealth v. Ward, 45 Mass. App. Ct. 901, 903 (1998). We therefore discern no abuse of discretion in the admission of the recordings without the defendant's requested redactions.
The defendant's brief makes a passing reference to the confrontation clause. This sole reference does not rise to the level of appellate argument. In any event, the claim is unavailing here. See Commonwealth v. Gonsalves, 445 Mass. 1, 12-13 (2005).
While the statements of the nontestifying individuals were admissible, the Commonwealth concedes, and we agree, that the defendant was entitled to a limiting instruction. See Commonwealth v. Deane, 458 Mass. 43, 53 & n.7 (2010). Because defense counsel requested a limiting instruction, we review for prejudicial error. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
The judge's failure to give the requested limiting instruction was not prejudicial in the particular circumstances of this case. The statements of the nontestifying individuals were tangential to the defense theory at trial, which was primarily that the Commonwealth did not prove the identities of the voices heard on the recordings, and that the key witness was biased. Contrast Commonwealth v. Cruz, 53 Mass. App. Ct. 393, 402-405 (2001) (erroneous admission of witness's prior consistent statement prejudicial where "the explicit defense strategy throughout . . . was that [the witness] had always been a self-serving opportunist who had motivation to lie"). Furthermore, contrary to the defendant's argument, the statements of the nontestifying individuals were cumulative of properly admitted evidence of his guilt. See Commonwealth v. Purdy, 459 Mass. 442, 453-454 (2011) (failure to provide limiting instruction as to masseuse's statement not prejudicial where there was "abundant other evidence that the defendant knew that the masseuses were providing sexual 'extras'"); Commonwealth v. Wilson, 427 Mass. 336, 348-349 (1998) (no prejudice where "the other evidence of [the defendant's] guilt" was "overwhelming"). We thus conclude that "the error did not influence the jury, or had but very slight effect." Flebotte, 417 Mass. at 353.
At the beginning of the fourth recording played for the jury, the defendant told the key witness that he needed to pay his sister's bills because she was going into collections. Later during that same call, the defendant stated that he was paying the $15,000 balance on his sister's Citibank account. He also represented that he was an authorized signatory for Auto-Thentic and provided account, routing, and check numbers that matched those found on the fraudulent checks that were admitted at trial. The address on the checks also matched the address the defendant provided to the Citibank representative. Combined with the victim's testimony that he did not know the defendant or his sister, and that the defendant was not an authorized signatory on his business's account, this evidence established the defendant's guilt.
2. Vouching. In closing argument, the prosecutor stated, "[I]n order to be prosecuted, you have to do something wrong." By making this statement, the defendant contends, the prosecutor improperly vouched for the key witness's credibility and "impermissibly suggested to the jury that the defendant was guilty by virtue of the Commonwealth's decision to prosecute him." This claim is without merit.
In relevant part, the prosecutor stated:
"Counsel made some mention of the fact that [the key witness] was told she would not be prosecuted. It's pretty much like she testified. She, you'd have to be, in order to be prosecuted, you have to do something wrong. There's no indication in any of the evidence that you've heard, or any of the tapes that are available to you, that she did anything wrong, that she had any involvement in this."
Because defense counsel objected to the prosecutor's remarks, we review for prejudicial error. See Commonwealth v. Tu Trinh, 458 Mass. 776, 785 (2011). "[T]he prosecutor's remarks must be viewed in light of the 'entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial.'" Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984), quoting Commonwealth v. Bourgeois, 391 Mass. 869, 885 (1984). The prosecutor's comments, taken in context, did not improperly vouch for the key witness's credibility, but rather responded to defense counsel's attack on the key witness's credibility by providing objective reasons, grounded in the evidence presented and her actual testimony, why her testimony was credible. See Commonwealth v. Thomas, 401 Mass. 109, 116 (1987) ("Where credibility is at issue, it is certainly proper for counsel to argue from the evidence why a witness should be believed"). See also Commonwealth v. Raymond, 424 Mass. 382, 391 (1997) (prosecutor's statement that codefendant told truth when he testified was proper in context as logical culmination of argument that codefendant was credible, rather than as assertion of prosecutor's personal belief). While "unfortunate and unartful," the prosecutor's isolated statement, viewed in context of the entire closing argument, did not amount to prejudicial error. Thomas, supra at 115. See Commonwealth v. Caillot, 454 Mass. 245, 259 (2009) (no improper vouching because "in the context in which the remark was made, the jury would have understood that the prosecutor intended to convey, not that he knew what [the witness] had stated was truthful, but that [the witness]'s testimony was credible because there was physical evidence corroborating his testimony").
The defendant's reliance on Commonwealth v. Dyette, 87 Mass. App. Ct. 548 (2015), and Commonwealth v. Williams, 450 Mass. 894 (2008), is misplaced. In Dyette, the statement at issue referred to the Commonwealth's decision to charge the defendant with one crime but not another, not a witness. 87 Mass. App. Ct. at 562-563. That opinion also emphasized that it was the juxtaposition of "[t]he statement, '[b]ecause we don't know, we don't charge,' followed closely by, '[w]hat we do know,' [that] constituted vouching." Id. at 563. Here, far from vouching for the key witness's credibility, the prosecutor merely stated that nothing in the evidence presented to the jury suggested that she was involved in the defendant's scheme. See Commonwealth v. Rolon, 438 Mass. 808, 816 (2003) ("It is not improper vouching for the prosecutor to point to reasons why a witness's testimony, or portions of a witness's testimony, should logically be believed"). In Williams, the prosecutor "related [in detail] what he did to satisfy himself, before indictment, that what [a witness] had told him was true, and on that basis he decided to seek an indictment and offer [the witness] a 'deal.'" 450 Mass. at 905. That conduct is far afield from the prosecutor's isolated unartful statement here.
The jury was instructed that "[t]he opening statements and the closing arguments of the attorneys are not evidence," which further mitigates any prejudice. See Commonwealth v. Cheremond, 461 Mass. 397, 414 (2012) ("The jury are presumed to have followed [the judge's] instruction").
Judgments affirmed.
By the Court (Neyman, Englander & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 17, 2020.