Opinion
10-P-2086
08-04-2017
COMMONWEALTH v. Julian M. GREEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant, Julian Green, of murder in the second degree and other crimes after the shooting death of Jacques Sellers. The trial judge subsequently denied the defendant's motion for a new trial. In this consolidated appeal, we affirm the judgments and the order denying the new trial motion.
Assault by means of a dangerous weapon (two counts), discharging a firearm within 500 feet of a dwelling, possession of a firearm without a firearms identification card, and assault and battery by means of a dangerous weapon. The latter charge was placed on file with the defendant's consent and is not before us.
Background. We outline the facts in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), reserving some specifics for later discussion. On the evening of July 18, 2007, shots from two different guns were fired into the residence at 36 General Patton Drive in Hyannis, where several people were gathered, killing the victim. Carrie Perry, who was in the house and heard the shots, lifted the shades of her bedroom window and saw "two young black Americans in jean shorts with hoodies on" running "right in the middle of the road where it was all bright." She did not see either man's face and "couldn't identify who [they] really [were]."
Jessica Schwenk, the defendant's girl friend at the time of the shooting, testified that she was with the defendant at her grandmother's house in West Dennis in the early evening hours of July 18 when the defendant said that his friend, Anthony Russ, "needed him" in Hyannis. Schwenk drove the defendant to Yarmouth, where she dropped him off at a hotel. She then drove to General Patton Drive in Hyannis, as the defendant had instructed her.
Schwenk had previously seen the defendant with a "silver gun," specifically, "[a] revolver." A few days earlier, the defendant had left his gun with Jill Parsons in a brown paper bag on a shelf in the garage of her house in South Yarmouth. On the evening of the shooting he called Parsons and asked her "[t]o grab the thing that was in the garage" and bring it to him at the CVS pharmacy down the street from her. Parsons wrapped the paper bag with the gun in it in a sweatshirt, and a friend drove her to the CVS. The defendant, who was there with Schwenk, took the bag, thanked Parsons, and got back into Schwenk's car.
When Schwenk later arrived at General Patton Drive as instructed, she saw the defendant and Anthony Russ. One of them told her to drive her car "[t]o the next street over" and wait. Schwenk waited for a few minutes, then the defendant and Russ came back to her car. She drove them to the end of the road, where the defendant and Russ got out and ran into the woods. When Schwenk saw the defendant later that night and the following day, he told her that he had been "with Anthony [Russ]," that "he shot the house" because "he was helping a friend."
At trial, Schwenk read portions of letters that the defendant wrote to her after the shooting. The defendant wrote, "The night I met AV, I knew what time it was. We was going there to lay dude down; and that's what we did." He also stated, "I shot a gun four times in the house," and, "I can't stop thinking about that night, me firing my gun with that clown." Although he admitted, "what I did that night was wrong," he wrote that someone else "should take the rap for [this] shit.... This case is so fucking stupid. I didn't have a glove or a fucking black hoodie." He continued in this vein, "I also found out that the gun I ‘used’ wasn't the gun that killed the kid." One of the letters was signed, "Jules. Free Jules, GP gunner."
The evidence supported the proposition that the defendant fired his gun into the house several times, but that the fatal shot came from a different gun. The Commonwealth proceeded on a joint venture theory.
The defense at trial was that Todd Lampley and Devarus Hampton, not the defendant and Russ, were responsible for the shooting. In this regard, defense counsel elicited testimony from Carrie Perry on cross-examination that the two men she saw fleeing from the crime scene resembled "Todd and Baby Bro," that is, Lampley and Hampton. Rodney Ferguson, who visited 36 General Patton Drive "[p]ractically every day," and was in the house at the time of the shooting, had beaten up Lampley "a few times" for "putting his hands on [Ferguson's] daughter's mom." Although he did not see the shooter, Ferguson testified on cross-examination that it was his "personal belief" that the "Mississippi guys," Lampley and Hampton, fired the shots into the house because of Ferguson's problem with Lampley. Hampton, testifying under an order of immunity, confirmed during cross-examination that Lampley had a "beef" with Ferguson.
Hours after the shooting, a Barnstable police officer assigned to the canine unit positioned his dog in the driveway across the street from 36 General Patton Drive, the "last known area of the suspects." The dog tracked the scent to 23 General Patton Drive, Lampley's residence, where it lost the scent.
Discussion. 1. Newly discovered evidence. During the defendant's trial, the Commonwealth obtained an order of immunity to allow defense counsel to cross-examine Hampton. Still, Hampton was a recalcitrant witness and testified repeatedly that he did not recall the events of July 18. Hampton denied that Lampley ever told him that a police dog had tracked Lampley's scent to his house that night. In his new trial motion the defendant offered a transcript of Hampton's testimony at Russ's trial, held several months after the defendant's, in which Hampton testified that Lampley "made a statement about something about a shooting"; "mentioned something about the canine dog going to the spot where he was standing in, and he got away lucky or something"; and said that "[h]im and his—his homeboy, it sounds like they (inaudible) the situation." The defendant contends that Hampton's testimony at Russ's trial, which ended in Russ's acquittal, constitutes newly discovered evidence warranting a new trial in his case.
"A defendant seeking a new trial on the ground of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction." Commonwealth v. Grace, 397 Mass. 303, 305 (1986). Evidence is newly discovered if it was "unavailable at the time of trial and could not have been discovered with reasonable diligence." Commonwealth v. LeFave, 430 Mass. 169, 176 (1999). Newly discovered evidence casts real doubt on the justice of conviction if "there is a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial." Grace, supra at 306. In determining whether the motion judge erred in his denial of a motion for new trial based on newly discovered evidence, we "examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion." Id. at 307. "[W]e accord special deference to the action of a motion judge who was also the trial judge." Commonwealth v. Shuman, 445 Mass. 268, 272 (2005).
We discern no error of law or abuse of discretion in the judge's determination that Hampton's testimony at Russ's trial did not amount to newly discovered evidence. The fundamental flaw in the defendant's claim is the fact that Hampton testified at his trial and, as the judge found, was "thoroughly cross-examined" by defense counsel. That Hampton later testified to a different version of events does not transform the later testimony into newly discovered evidence.
Even if Hampton's later testimony amounted to newly discovered evidence, the defendant has not demonstrated that "the new evidence offered create[d] a substantial risk that a jury exposed to that evidence would have reached a different conclusion." Commonwealth v. Markham, 10 Mass. App. Ct. 651, 654 (1980) (footnote omitted). In evaluating whether the jury would have reached a different conclusion had the newly discovered evidence been admitted at trial, "the evidence said to be new not only must be material and credible but also must carry a measure of strength in support of the defendant's position." Grace, supra at 305 (citation omitted).
The judge found that Hampton was a man of "questionable character," whose conflicting testimony concerning his understanding of immunity was an attempt to "shield himself from perjury and allow him to sow doubt in both cases." "[T]he motion judge properly ‘[took] into account his knowledge of what occurred at trial [in order to] assess questions of credibility.’ " Commonwealth v. Spray, 467 Mass. 456, 472 (2014), quoting from Commonwealth v. Ortiz, 393 Mass. 523, 536-537 (1984). See Grace, supra at 310 ("There is no doubt that a motion judge should give serious consideration to the credibility of a recanting witness's new testimony"). If Hampton "were to testify at a new trial, his credibility would be damaged in such a way by earlier testimony that his new testimony would be relatively worthless." Commonwealth v. Waters, 410 Mass. 224, 231 (1991), quoting from Ortiz, supra. The judge did not err in finding no substantial risk that Hampton's testimony at Russ's trial would have affected the verdicts at a new trial for the defendant.
2. Ineffective assistance of counsel. The defendant also contended in his new trial motion that trial counsel was ineffective for failing to introduce a statement attributed to Lampley concerning Lampley's alibi. Lampley told the police officers who interviewed him after the shooting that on the evening of the murder, he had gone for a walk in the neighborhood with his girl friend and some of her friends, returned to his residence at 23 General Patton Drive, and watched movies. Lampley later took a polygraph test. On the "Polygraph Unit Database Information Form," State police Sergeant Christopher Dolan, who administered the test, wrote, "During the post test interview the examinee admitted to lying about his alibi." However, despite defense counsel's vigorous and repeated efforts to elicit Lampley's admission that he lied about his alibi or that he said so to Dolan, Lampley refused to make any such admission.
After Lampley testified at trial, defense counsel indicated that he intended to call Dolan as a witness to impeach Lampley's testimony with evidence that Lampley admitted to Dolan that he had lied about his alibi. However, when counsel later spoke with Dolan, Dolan reported having no memory of this statement. Trial counsel elected not call Dolan as a witness because Dolan was "not ready to offer anything." The defendant now claims that counsel was ineffective for failing to advocate for the admission of Dolan's notation on the form, either as a past recollection recorded or as third-party culprit evidence.
A past recollection recorded is admissible if "(1) the witness has no revivable recollection of the subject, (2) the witness has firsthand knowledge of the facts recorded, (3) the witness can testify that the statement was truthful when made, and (4) the recording was made when the events were fresh in [his or] her memory." Commonwealth v. Nolan, 427 Mass. 541, 543 (1998). "Where a new trial is sought based on a claim of ineffective assistance of counsel, the burden of proving ineffectiveness rests with the defendant." Commonwealth v. Montez, 450 Mass. 736, 755 (2008). The defendant has not shown that he can satisfy the third requirement—that is, that Dolan could testify that the statement, "examinee admitted to lying about his alibi," was true. The defendant has not met his burden of proving defense counsel's shortcomings in this regard.
Likewise, the defendant has not demonstrated that counsel was ineffective for failure to gain the statement's admission as third-party culprit evidence. Otherwise inadmissible hearsay evidence may be admissible as third-party culprit evidence, but only if "the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other ‘substantial connecting links' to the crime." Commonwealth v. Silva–Santiago, 453 Mass. 782, 801 (2009), quoting from Commonwealth v. Rice, 441 Mass. 291, 305 (2004). Dolan's notation was tangentially relevant at best—even if Lampley lied about his whereabouts on the evening of the murder, it does not follow that he was involved in the shooting. Moreover, testimony about Dolan's notation was likely to have confused the jury with collateral issues surrounding the inadmissible polygraph test itself. The judge was warranted in concluding that counsel's decision not to press further for the admission of the statement was reasonable.
Furthermore, even if we were to conclude that counsel's handling of this evidence was manifestly unreasonable, this conduct did not result in the loss of "an otherwise available, substantial ground of defence." Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979) (quotation omitted). The judge found that counsel "thoroughly cross-examined and impeached Lampley" and the evidence, if admitted, "likely would not have affected [the jury's] deliberations." We agree. Counsel succeeded in eliciting Lampley's admission that he could not deny telling Dolan that he lied about his alibi. Defense counsel even argued in summation, without objection, "But what does he then admit to? I lied about the alibi.... This fellow knows the dogs came to his doorstep. So, what does he tell—what does he tell the police, albeit later he says it's a lie." Any further impeachment of Lampley by the introduction of Dolan's notation would have been "cumulative[, not] potentially dispositive." Commonwealth v. Sarmanian, 426 Mass. 405, 407 (1998). See Commonwealth v. Valentin, 470 Mass. 186, 190 (2014) ("[G]enerally, the failure to impeach a witness does not, on its own, constitute ineffective assistance").
3. Admission of defendant's letters. Suspecting the defendant's involvement in the shooting, the police interrogated him about two weeks later. Because the officers failed to honor the defendant's invocation of his right to an attorney and his right to remain silent, his statements from the interrogation were suppressed. In the months that followed, the defendant wrote "hundreds" of letters to Schwenk from jail, twenty-eight of which were admitted in evidence without objection. The defendant contends on appeal that all of the letters, and particularly those written before the defendant was appointed counsel with respect to the murder charges, were the product of police misconduct during the interrogation and should not have been admitted. We review this claim, and the claim that defense counsel was ineffective for failing to object, to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Azar, 435 Mass. 675, 686-687 (2002). We discern no error.
The defendant was in custody pending the disposition of unrelated criminal charges.
"[E]vidence need not be excluded under the fruit of the poisonous tree doctrine ... if the connection between the improper conduct and the derivative evidence has become so attenuated as to dissipate the taint." Commonwealth v. Fredette, 396 Mass. 455, 459 (1985). "In determining whether the connection between the evidence and the improper conduct has become so attenuated as to dissipate the taint, the facts of each case must be examined in light of three factors: the temporal proximity of the arrest to the obtaining of the evidence; the presence of intervening circumstances; and the purpose and flagrancy of the misconduct." Id. at 460. We look to the first two factors "in conjunction with each other." Commonwealth v. Damiano, 444 Mass. 444, 455 (2005).
Substantial time elapsed between the interrogation and the writing of each of the letters, see Commonwealth v. Prater, 420 Mass. 569, 582 (1995) (concluding that ninety minutes was a sufficient "break in the stream of events" to insulate the confession from the misconduct), and we are confident that the connection between these events was sufficiently attenuated to dissipate any taint. Most significantly, the decision to write the letters was an "affirmative choice" of the defendant, Commonwealth v. Long, 476 Mass. 526, 537 (2017), wholly independent from the prior police misconduct. See Commonwealth v. Maldonado, 55 Mass. App. Ct. 450, 454 (2002) (suppression motion properly denied where evidence obtained "only as a result of the defendant's voluntary, intervening act").
"As to the purpose and flagrancy of the illegal [interrogation], we ask, first, whether the police performed the illegal act for the purpose of obtaining the evidence that the defendant seeks to suppress, and second, whether the police knew that their actions were illegal but proceeded anyway (flagrancy)." Long, supra at 537-538. Here, the "police did not confront the [defendant] with the illegally obtained evidence in order to coerce" him to write the letters to Schwenk. Id. at 538. Additionally, as the motion judge found, "[Schwenk] was responsible for turning over the letters, a completely separate and distinct force that has no relation whatsoever to the poisonous tree." In short, the letters were obtained "by means sufficiently distinguishable to be purged of the primary taint" of the police misconduct. Wong Sun v. United States, 371 U.S. 471, 488 (1963) (quotation omitted).
4. Prosecutor's closing argument. The defendant argues that three aspects of the prosecutor's closing argument were improper.
a. Reference to letter. The defendant argues that the prosecutor improperly referred to one of the defendant's letters, Exhibit 51, in summation. The defendant objected at trial that the argument assumed facts that were untrue and drew an impermissible inference. He makes a different claim on appeal, arguing that he learned about the glove and hoodie from the officers who interrogated him, and that the prosecutor was therefore exploiting the suppression of the interrogation when he invited the jury to draw the inference that the defendant knew about these items from his personal involvement in the crime. See Commonwealth v. Harris, 443 Mass. 714, 732 (2005) ; Commonwealth v. Scott, 470 Mass. 320, 333-334 (2014). Because the defendant did not make this objection at trial, we review any error for a substantial risk of a miscarriage of justice. Harris, supra at 730. We discern no such risk.
The prosecutor argued,
"The DNA test is inconclusive for [the defendant], Mr. Lampley or Mr. Hampton. Exhibit 51, ladies and gentlemen. [The defendant] writes, and I quote, ‘This case is so fucking stupid. I didn't have a glove or fucking black hoodie.’
"Well, how does he know about the glove? How does he know about the black hoodie? Aside from the fact, doesn't that explain—isn't that completely consistent with the test that's inconclusive for it to be [the defendant's] on the glove?"
Whether the defendant learned about the glove and the hoodie during the police interrogation or, later, from discovery in the case, the evidence did not support the prosecutor's argument that the defendant had independent knowledge of these items. Nonetheless, a new trial is not warranted. The rhetorical question about the defendant's knowledge was merely a passing comment and not an emphasis of the argument. The evidence of the defendant's participation in the crime was amply supported by the ballistics evidence, by Schwenk's and Parsons's testimony, and by the numerous inculpatory statements in the defendant's letters. We are confident that this line of argument had no material effect on the verdict.
Schwenk testified that this particular letter was written in May, 2008—about six months after the interrogation, five months after the defendant was indicted, and three months after he was appointed counsel. See Commonwealth v. Watkins, 375 Mass. 472, 482 (1978) (opportunity to consult an attorney was an intervening circumstance that "overshadowed" temporal proximity of prior, illegally obtained statements).
b. Use of telephone records. Parsons and Schwenk both testified that they received telephone calls from the defendant on the day of the murder. In addition, records reflecting calls made from a telephone registered to one Mary Nunn Evans were admitted as evidence. In closing argument, the prosecutor referred to two of these calls very close in time to the shooting—one to Schwenk's telephone and one to a telephone registered to Rebecca Bartholomew —with no objection from defense counsel. The defendant argues that because the records do not show telephone calls made from any telephone number associated with him, the prosecution misled the jury in relying on these calls during closing, resulting in a substantial risk of a miscarriage of justice.
The defendant told Schwenk that he got into "Becky's" car after he got out of Schwenk's car, that is, after the shooting.
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"In closing argument, a prosecutor may analyze the evidence and suggest reasonable inferences the jury should draw from that evidence." Commonwealth v. Semedo, 456 Mass. 1, 13 (2010). The judge concluded that there was a "sufficient basis in the record for the Commonwealth to draw the reasonable inference that the defendant placed the phone calls that came from the phone number registered to ‘Mary Nunn Evans.’ " He further noted that "use of a phone is not exclusive to the person to whom it is registered; phones may be borrowed or accessed without permission." We agree with the judge that the prosecutor's argument was based on a reasonable inference drawn from evidence admitted at trial. The defense was equally free to argue to the jury that such an inference was unwarranted.
c. Mischaracterization of DNA results. At trial, State police chemist Kristin Zaramba testified that the glove recovered at the crime scene "yielded inconclusive [DNA] results for comparison with [the defendant,] Todd Lampley, and Devarus Hampton"—meaning that the DNA sample did not contain "enough information ... to positively include or exclude a person from [it]." The defendant, relying on Commonwealth v. Mattei, 455 Mass. 840 (2010), and Commonwealth v. Cameron, 473 Mass. 100 (2015), argues that this testimony described "nonexclusion" results rather than "inconclusive" results, and its admission and use in the prosecutor's closing argument, see note 4, supra, was erroneous, creating a substantial risk of a miscarriage of justice.
The defendant's reliance on Mattei and Cameron is misplaced. In both cases, the DNA analyst testified that a source of DNA was "consistent with" the defendant's DNA, and that although the DNA test could not provide a complete match, the results also could not exclude the defendant. See Mattei, supra at 848-849; Cameron, supra at 103, 105. This "nonexclusion" testimony "could suggest to the jury that a ‘link would be more firmly established if only more [sample] were available for testing.’ " Id. at 106, quoting from Commonwealth v. Nesbitt, 452 Mass. 236, 254 (2008). Here, Zaramba's testimony did not "permit[ ] the jury to make an inference about the defendant's relation to the sample." Cameron, supra.
Zaramba and the prosecutor accurately referred to the DNA testing as "inconclusive." However, even "for inconclusive DNA evidence to be admissible, it must be probative of an issue of consequence in the case," such as the integrity of the police investigation. Nesbitt, supra. Here, "testimony regarding inconclusive DNA results [was] not relevant evidence because it [did] not have a tendency to prove any particular fact that would be material to an issue in the case." Commonwealth v. Cavitt, 460 Mass. 617, 635 (2011). Accordingly, the inconclusive DNA evidence from the glove should not have been admitted or mentioned in closing.
Nonetheless, we discern no substantial risk of a miscarriage of justice. Zaramba's testimony "neither suggested to the jury that the defendant was in any way linked to the DNA found on the [glove], nor implied that the defendant's DNA would have been found there if more of a sample had been present." Id. at 636. To the extent the prosecutor argued that the inconclusive result was consistent with the defendant's guilt, such argument was improper, but we are confident that "the inconclusive DNA evidence relating to the [glove] would not have influenced the jury's conclusion." Ibid.
Judgments affirmed.
Order denying motion for new trial affirmed.