Opinion
No. 11–P–921.
2012-11-29
COMMONWEALTH v. Juan FIGUEROA.
By the Court (RUBIN, HANLON & BROWN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in Superior Court, on an indictment charging murder in the first degree, the defendant was convicted of the lesser included offense of murder in the second degree. On appeal, he argues that (1) a declarant's statement constituting impeachment evidence was improperly excluded; (2) the doctrine of completeness required the admission of that statement; (3) the prosecutor unfairly exploited the exclusion of the exculpatory statement in his closing argument; (4) cross-examination of a police witness was prejudicially truncated; (5) testimony from a substitute analyst violated the defendant's confrontation rights; and (6) the judge should not have instructed the jury that malice could be inferred from the use of a dangerous weapon when provocation was a live issue.
At trial, there was no dispute that the defendant killed the victim. His defense was that he was not guilty of murder because he acted in self-defense. Trial counsel also argued to the jury (for their consideration as an alternative verdict) that the victim's death was the result of an accident. The defendant testified he told the officers who transported him back to Boston after his arrest, that “I'm innocent. He stabbed me first.” Officer Steven Ridge testified for the defense and confirmed this statement.
Darla Lenardis, who was present at the time of the incident, did not testify at trial. Her statements during the incident were admitted through the testimony of percipient witnesses, Wei Ruan and Michelle Ennis, under the excited utterance exception to the hearsay rule, and are not challenged on appeal. Ennis testified she heard a woman scream, “Oh my God! What have you done?” Ruan heard Lenardis scream, “stop it, get off him.” In a written trial memorandum, trial counsel sought to impeach Lenardis's credibility by means of her subsequent, purportedly inconsistent statement. It appears that the statement in question was made by Lenardis about twelve hours later, during an interview with Detective Brown at her mother's house. Lenardis told the detective she saw the victim pull out a knife first, before the fight began.
During the trial defense counsel had unsuccessfully sought immunity for Lenardis, given the likelihood that Lenardis would invoke her Fifth Amendment privilege not to testify as she had before the grand jury.
This theory of admission was only set forth in the defendant's memorandum filed at trial in support of his motion in limine; however, counsel argued that the statement was admissible on grounds that it was a declaration against penal interest and because “it relates to the investigation of the case.”
1. Impeachment evidence. There is no doubt that hearsay testimony from an absent witness may be impeached in the same way as a live witness's testimony. Commonwealth v. Mahar, 430 Mass. 643, 648–650 (2000) (adopting principles set forth in rule 806 of the Proposed Massachusetts Rules of Evidence). The declarant of a hearsay statement may be impeached by the introduction of statements that are inconsistent with the hearsay statement. Ibid. Here, Lenardis's proffered statement that the victim pulled out a knife first is not inconsistent with her statements made during the altercation and admitted in evidence; namely, urging the defendant to get off the victim and bemoaning what had just occurred. Therefore, the principles adopted in Mahar are not applicable.
Moreover, even if we were to conclude that Lenardis's statement should have been admitted under Mahar, its use under the principles articulated therein is limited to impeaching Lenardis's credibility and cannot be used substantively as proof that the victim actually threatened the defendant first with a weapon. Lenardis's statements added little to the Commonwealth's evidence and, therefore, discrediting her would likely have had little effect. “In general, failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance.” Commonwealth v. Hudson, 446 Mass. 709, 715 (2006), quoting from Commonwealth v. Bart B., 424 Mass. 911, 916 (1997).
Finally, to the extent Lenardis's admitted statements undercut the defendant's claim of self-defense, by suggesting or supporting the assertion that he was the sole aggressor, the inability to impeach Lenardis was not prejudicial because the defendant was not entitled to claim self-defense. Viewed in the light most favorable to the defendant, the evidence shows that the events took place in an apartment complex parking lot, with ample space for the defendant to retreat. See Commonwealth v. Rodriquez, 461 Mass. 100, 109–110 (2011). Assuming that the victim pulled out a knife when the defendant verbally confronted him, the defendant had room to retreat but did not do so. The evidence suggests that he could have run to his left, away from Lenardis and the victim, but perhaps more significantly, the driver's side door of his vehicle was about an arm's length behind him, the key was in the ignition, and the car was running, providing a second avenue of retreat. Self-defense is only available to a defendant who has taken “advantage of every opportunity to avoid combat.” Id. at 110. See Commonwealth v.. Kendrick, 351 Mass. 203, 212 (1966). Here, the defendant, who was six inches taller than the victim and about fifty pounds heavier, neither took the opportunity to flee on foot, nor to escape in his running vehicle. Because there is no evidence that once the defendant saw the knife he attempted to retreat, or that there was no means of escape available, the defendant cannot claim he acted in self-defense. See Commonwealth v. Espada, 450 Mass. 687, 694 & n. 4 (2008).
Counsel argued in closing that the defendant was “the only one with a defensive wound,” and the wound is “consistent with acting in self-defense.” To the extent counsel's intention was to suggest the defendant injured his thumb as he protected himself from the victim's blow with the knife, the evidence does not support the inference. The defendant testified that the only motion he saw the victim make with the knife before he tackled him was the motion required to pull it out. The defendant even clarified that he meant the “victim pulled a knife out” when he said the victim “swung” the knife at him.
Given the significant size advantage the defendant had over the victim, there is also a serious question as to whether, as is required to claim self-defense, the defendant had a “reasonable ground to believe and actually did believe that he was in imminent danger of death or serious bodily harm,” when he saw the victim pull out a knife. Commonwealth v. Harrington, 379 Mass. 446, 450 (1980).
That the judge instructed the jury on the theory of self-defense, perhaps out of an abundance of caution, merely suggests that the defendant received the benefit of an instruction to which he was not entitled. See, e.g., Commonwealth v. Van Winkle, 443 Mass. 230, 242 (2005); Commonwealth v. Clemente, 452 Mass. 295, 321 (2008).
2. Doctrine of verbal completeness. As an alternative argument, the defendant contends that Lenardis's statement, that the victim pulled out a knife first, should have been admitted under the doctrine of verbal completeness. See Commonwealth v. Carmona, 428 Mass. 268, 272 (1998). According to the defendant, absent the admission of this statement, the jury were led to believe that the police obtained an arrest warrant for the defendant immediately upon interviewing Lenardis, thus creating the impression that she said the defendant had “murderously attacked the victim without any justification.” That inference cannot fairly be drawn from the record.
In over approximately twenty-three pages of transcript, Detective Brown chronologically outlined the steps he took the morning after the crime. Brown testified that at about 9:40 A. M., on March 12, 2007, he received a call from Lenardis in which she generally described what had occurred and agreed to meet Brown. He indicated that he met Lenardis at noon at her mother's house and interviewed her there. Brown explained that he next went to the D'Alessandros' apartment where Tiffany D'Alessandro and her mother directed him to a dumpster. Brown retrieved what appeared to be blood-stained articles of clothing. When Lenardis arrived a few minutes later, he took pictures of the cuts on her hands. It was at about this time that Lenardis became upset and was taken to the hospital. Brown returned to the scene to view it in daylight. He also took possession of the folded pocket knife that had been found on the victim. He then obtained a photograph of the defendant from the Registry of Motor Vehicles and went to Massachusetts General Hospital to show it to Lenardis. Lenardis confirmed that the photograph depicted the defendant. Brown showed a similar photograph to Lenardis's mother, who also identified the defendant. It was only then, Brown testified, that he sought an arrest warrant for the defendant, which was issued the next morning, on March 13, 2007.
At no point during his testimony did Brown recount the content of his conversations with Lenardis; he properly testified only about her identification of the defendant's photograph. Apart from the absence of any statement or writing from Lenardis to clarify, the series of measured investigative steps recounted by Brown do not suggest that Lenardis's statement described a “murderous[ ] attack[ ]” that was the basis for the defendant's arrest.
3. Closing argument. The prosecutor argued in summation that there was no evidence other than the defendant's testimony that the victim was holding a knife. The argument improperly exploited the absence of evidence that had been excluded at his request, namely Lendardis's statement that the victim pulled a knife first. Counsel may not, in closing, “exploit[ ] the absence of evidence that had been excluded at his request.” Commonwealth v. Harris, 443 Mass. 714, 732 (2005), quoting from Commonwealth v. Carroll, 439 Mass. 547, 555 (2003). Here, because there was no objection, we consider whether the error created a substantial risk of a miscarriage of justice. See id. at 732–733.
In accordance with this test, we note that while the prosecutor was certainly implying that the defendant was lying about the victim having a knife, and further, that the victim pulled out a knife first, a matter central to the defense, the defendant's testimony was not the only evidence of this fact. The defendant's account of the incident, in conjunction with the significant injury to his thumb and Ruan's description of the altercation and the victim seconds after the encounter, strongly support the inference that the victim indeed pulled out a knife first, and that the defendant tackled him as he grabbed the knife, injuring his hand.
Moreover, the difficulty with the defense was not its inability to bolster the claim that the victim drew the knife first, but rather that there was no evidence that he had tried to retreat or was reasonably in fear for his life. Further, the evidence strongly suggested that the defendant grabbed the knife from the victim and stabbed him five times before fleeing the scene and lying to his friends and acquaintances about what had happened until he could create an exculpatory version of events with the help of an attorney. In these circumstances, the error did not create a substantial risk of a miscarriage of justice.
4. Videotape. The defendant argues that he was not permitted to cross-examine the police witnesses regarding their failure to obtain the videotape for the time period of the crime. This area of inquiry, however, was not foreclosed. Defense counsel reviewed the videotape that had been retrieved almost frame by frame with Detective Brown, making it abundantly clear that it did not depict the crime. Moreover, Brown admitted that they also had obtained a tape that did not include the relevant time period for the crime. In closing, defense counsel fully capitalized on this state of the evidence, urging the jury to conclude that the truncated investigation showed that the police leapt too quickly to the conclusion that the defendant murdered the victim, and, therefore, their efforts at obtaining evidence such as the correct video, the knife, witness interviews, and forensic tests were slipshod.
5. Blood analyst testimony. Next, the defendant argues that the expert's testimony—that the stains on the knife taken from the victim were negative for blood—violated his right to cross-examination as most recently discussed in Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), because the expert did not personally perform the blood analysis, but only worked in the laboratory and supervised those who performed the test. Even if we were to assume error in the admission of this testimony, and further assume that the defendant objected at trial, its admission was harmless beyond a reasonable doubt. At trial, the parties agreed that this knife, found closed in the victim's pants pocket with a nickel stuck in its cradle, presumably making it difficult to open, was not the knife used during the fight. The defendant's course change on appeal, suggesting that the weapon may have been the one used during the fight, cannot alter the theory presented to the jury by both parties. In this circumstance, the knife is largely rendered irrelevant.
6. Malice instruction. Finally, the defendant argues that where, as here, provocation was a live issue, the instruction that malice could be inferred from the use of a dangerous weapon should have been omitted because it permitted the jury to draw an “unconstitutional inference,” removing consideration of whether mitigating circumstances negated malice. The defendant objected at trial.
Specifically, the judge properly and repeatedly told the jury that malice was an element that must be proved to establish murder in either the first or second degree. The judge also correctly and repeatedly defined malice. Initially, in setting forth that definition in the context of murder in the first degree, the judge included the statement that “when the killing is caused by the intentional use of a dangerous weapon you may, but are not required, to infer malice.” The judge added that “[m]alice may not be inferred if the use of the dangerous weapon was either unintentional or accidental or if it was not used by the defendant.” She did not repeat this instruction when she repeated the definition of malice. The defendant does not contest that standing alone, the instruction is a correct statement of the law. See, e.g., Commonwealth v. Obershaw, 435 Mass. 794, 808–809 (2002).
When the judge discussed manslaughter, she introduced the topic by reiterating that murder in the first and second degree require proof of malice. She then said, “[t]he Commonwealth must also prove beyond a reasonable doubt the absence of certain mitigating circumstances which would prevent a defendant from acting with malice. Mitigating circumstances are circumstances which lessens a defendant's culpability for an act.” The judge then outlined provocation based on heat of passion or sudden combat, as well as excessive force in self-defense. Viewing the instructions as a whole, as is required, Commonwealth v. Niemic, 427 Mass. 718, 720–721 (1998), it is clear that the jury were correctly informed that mitigating circumstances negate all forms of malice and that the Commonwealth bore the burden of proving the absence of mitigating circumstances.
In short, the jury had to evaluate the evidence and determine whether the defendant's use of the knife demonstrated malice or whether there was evidence of mitigating circumstances that undercut such conclusion. The instructions were correct; nor was there error, particularly given that in this case, the defense did not proceed on a theory of reasonable provocation. See Commonwealth v. Tu Trinh, 458 Mass. 776, 783–785 (2011) (no impermissible burden shifting caused by instruction that malice could be inferred from the use of a dangerous weapon, and there was no basis upon which to instruct on voluntary manslaughter).
Judgment affirmed.