Opinion
19-P-828
11-06-2020
COMMONWEALTH v. Dartanyan PLEDGER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant, Dartanyan Pledger, of murder in the second degree, armed assault with intent to murder, and related firearms charges. On appeal, the defendant claims that the judge erred in admitting evidence of the defendant's arrest in Georgia five months after the murder, and that the judge erroneously instructed the jury that they could consider the defendant's flight as evidence of consciousness of guilt. The defendant also claims that a portion of the prosecutor's closing argument was improper. We affirm.
The defendant was tried together with his brother Nicco-Kawon Pledger (Nicco), and Lisa Lewis (Lewis). Nicco was convicted of murder in the second degree, armed assault with intent to murder, and assault and battery by means of a dangerous weapon. Lewis was convicted of accessory after the fact to assault and battery by means of a dangerous weapon. Nicco and Lewis are not parties to this appeal.
Background. We summarize the relevant facts. Shortly after 3 A.M. on March 21, 2016, Allex Bryant was shot and killed as he sat in a car smoking a cigarette outside a birthday party in Roxbury. Bryant's friend, Daquon Brown, who was also sitting in the car, was shot in the leg as he returned fire. After the shooting, a witness observed one of the assailants open the front driver's side door of another car parked on the street and throw something into the car. A small dark-colored sedan then came "flying down" the street, and the assailant "jumped in the car" which then sped away. The jury saw video surveillance evidence of one of the assailants entering the sedan.
Police located a Toyota Camry parked on the street near the scene of the shooting. The Camry had "ballistic damage." Police observed a magazine cartridge under the car and a firearm inside. A second firearm was found on the sidewalk directly beside the Camry. Forensic testing revealed that this second firearm fired the shot that killed Bryant.
While executing a warrant authorizing a search of the Camry, police recovered a firearm with an empty magazine from the driver's side floor. In addition, police recovered several items identifying the defendant, including a cellular phone and a wallet containing a Massachusetts driver's license, a Massachusetts identification card, a MassHealth card, credit cards, and a social security card.
In the months following the murder, the codefendants had multiple contacts with police in the Boston area while the investigation continued. On April 13, 2016, Lewis was stopped in Brookline driving a black Nissan Maxima. On May 4, 2016, the defendant walked into a police station in Boston "to generate a police report for his insurance company so they would pay for the towing company storage charges for his vehicle," which had been impounded on the night of the murder. On May 16, 2016, police served Lewis with a grand jury subpoena on Lagrange Street in Boston. The defendant and Nicco were with Lewis in the black Nissan Maxima at the time.
On August 19, 2016, approximately five months after the murder, arrest warrants issued for the defendant, Nicco, and Lewis. On August 27 or 28, 2016, at about 3 A.M. , Lewis arrived at her sister's home in Connecticut, and asked if she and Nicco could stay there for a few days because there was "some type of warrant or something out for them in Boston." The sister turned them away and did not see them again.
Four days later, Boston police were contacted by law enforcement authorities in Gwinnet County, Georgia, who informed them that the defendant was in their custody.
Discussion. 1. Evidence of flight as consciousness of guilt. The defendant filed a motion in limine to preclude evidence of his arrest in Georgia, arguing that his presence in Georgia five months after the murder was not evidence of flight and did not support a consciousness of guilt instruction. The judge denied the motion, reasoning that the defendant was arrested in Georgia soon after the warrant for his arrest was issued in Massachusetts and that the probative value of that evidence outweighed its prejudicial effect. Based on this evidence, the judge gave the model jury instruction on flight as consciousness of guilt. Because the defendant objected to this instruction, we review for prejudicial error. See Commonwealth v. Bastaldo, 472 Mass. 16, 33 (2015).
The warrant for the defendant's arrest issued on August 19, 2016, and he was arrested in Georgia on August 31, 2016. The defendant did not testify at trial. In an affidavit filed with his motion in limine the defendant stated that he traveled to Georgia on August 24th to visit his cousin and that he was not aware of the warrant for his arrest. This evidence was not before the jury.
The judge instructed the jury that the Commonwealth was asking them to infer from the evidence that "the defendants were found outside of Massachusetts after warrants issued for their arrest," that they were fleeing because of those warrants, and that it was "entirely up to [the jurors] as to whether [they] draw that inference based on the evidence presented in this case." The judge further instructed that if the jury did find that the defendants fled, they could consider whether that indicated "feelings of guilt by the defendants and whether in turn such feelings of guilt might tend to show actual guilt of the offenses with which they have been charged." Finally, the judge instructed the jury that they "may not find [the defendant] guilty on these charges ... simply because he ... fled the jurisdiction," and that they were to "simply consider such conduct together with all other evidence in the case to determine whether the Commonwealth has satisfied its burden of proof with respect to each of the indictments."
"An instruction on consciousness of guilt is appropriate where the jury may draw an inference of guilt ‘from evidence of flight, concealment, or similar acts.’ " Id., quoting Commonwealth v. Morris, 465 Mass. 733, 737-738 (2013). "It is well established that flight constitutes classic evidence of consciousness of guilt." Commonwealth v. Vick, 454 Mass. 418, 426 (2009). An alternative explanation for a defendant's flight does not render such evidence inadmissible. Rather, an alternative explanation "presents a question for the jury in considering the probability that the defendant fled because of consciousness of guilt of the crime charged in the indictments and for which he was on trial." Commonwealth v. Booker, 386 Mass. 466, 470-471 (1982). Proof that the defendant knew that the police were looking for him is not a requirement for a consciousness of guilt instruction based on flight. See Commonwealth v. Figueroa, 451 Mass. 566, 579 (2008) ; Commonwealth v. Toney, 385 Mass. 575, 583 (1982).
"To determine whether a consciousness of guilt instruction is warranted, a judge need only assess the relevancy of the evidence." Morris, 465 Mass. at 738. "In the case of flight, the evidence must be probative of the defendant's feelings of guilt concerning the crime of which he is accused." Id., quoting Commonwealth v. Villafuerte, 72 Mass. App. Ct. 908, 909 (2008). "[W]hether the evidence is so inflammatory in nature as to outweigh its probative value and thus preclude its admission [is a] question[ ] addressed to the sound discretion of the trial judge." Booker, 386 Mass. at 469. Relevancy is "a matter on which the opinion of the trial judge will be accepted ... except for palpable error." Id. at 470, quoting Commonwealth v. Young, 382 Mass. 448, 463 (1981).
The defendant argues that the jury could not reasonably have inferred that the defendant was fleeing law enforcement authorities in Massachusetts where there was a period of five months between the murder and his arrest in Georgia. This is particularly true, according to the defendant, where the evidence showed that in the months between the shooting and his arrest in Georgia, the defendant voluntarily appeared at a police station in Massachusetts to request a police report for his car.
The judge considered this argument, but placed greater weight on the evidence that the defendant was apprehended in Georgia only twelve days after a warrant for his arrest issued in Massachusetts. Such temporal proximity between the charge and the subsequent flight is a factor the judge may consider. See Villafuerte, 72 Mass. App. Ct. at 909 (flight within thirty days of learning of charge supported consciousness of guilt instruction). The defendant's alternative explanation for his presence in Georgia and his contention that he did not know of the warrants were questions for the jury. See Toney, 385 Mass. at 583-584. Simply put, we see no error or abuse of discretion in the admission of the defendant's arrest in Georgia or the corresponding jury instruction on consciousness of guilt.
We are not persuaded by the defendant's suggestion that the Supreme Judicial Court has modified its holding in Toney. In Commonwealth v. Barnoski, 418 Mass. 523 (1994), the Supreme Judicial Court observed that evidence of a defendant rubbing his hands through his hair before they were swabbed for gunshot residue could not be evidence of consciousness of guilt unless the defendant knew the purpose of the swabbing. Knowledge is not necessary where the evidence of consciousness of guilt is flight. Id. at 537-538. "[T]he act of leaving the scene of a crime, whether or not one knows the police are in pursuit, itself tends to show a consciousness of guilt." Id. at 538 n.9.
Closing argument. Over the defendant's objection, the judge allowed testimony that Lewis and Nicco sought refuge at Lewis's sister's home in Connecticut. The sister testified that Lewis told her that there was "some type of warrant or something out for them in Boston." The judge gave a contemporaneous limiting instruction that Lewis's statements about the outstanding warrant could be considered only as to Lewis's state of mind, and explicitly told the jury that the testimony was "not to be used against or in connection with the other two defendants."
During closing argument, the prosecutor asked the jury to consider the defendant's presence in Georgia "in the context of what the other two defendants do." The prosecutor then recounted the evidence of Nicco and Lewis appearing at Lewis's sister's residence in Connecticut four days before the defendant's arrest in Georgia, and Lewis's statement to her sister, "I need a place to stay cause I got warrants out." The defendant objected, arguing that the prosecutor was, in effect, asking the jury to use Lewis's statement against the defendant. We are not persuaded that the argument was improper in the context in which it arose.
"[P]rosecutors are entitled to marshal the evidence and suggest inferences that the jury may draw from it." Commonwealth v. Roy, 464 Mass. 818, 829 (2013), quoting Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). When defense counsel argued to the jury that "there's no evidence about why [the defendant] went to Georgia ... [n]o testimony at all that [the defendant] was told there's a warrant for you," the prosecutor was permitted to respond. See Commonwealth v. Anderson, 411 Mass. 279, 286 (1991). We see nothing improper in the prosecutor's suggestion to the jury that the actions of the defendant's coconspirators, Nicco and Lewis, in seeking refuge in Connecticut after the arrest warrants issued, had some probative value regarding the reason the defendant was in Georgia. Moreover, before mentioning Lewis's statement, the prosecutor reminded the jury that they could consider Lewis's statement only as to her state of mind. This was consistent with the judge's earlier ruling and limiting instruction.
Even were we to conclude that the argument was improper, there was no prejudice. First, when the evidence was admitted the jury were immediately given a limiting instruction that they could consider Lewis's statements only as to her and not against the defendant. Second, the jury were instructed repeatedly that their verdict must be based on the evidence alone and that arguments of counsel were not evidence. We presume that the jury heeded these instructions. See Commonwealth v. Berry, 466 Mass. 763, 770 (2014). Further, the evidence against the defendant, although circumstantial, was strong. Evidence of the defendant's cell phone use showed that he was in the area of the murder at the time of the shooting. The defendant's car was found at the murder scene and contained a firearm used in the shooting, the defendant's wallet, and various forms of the defendant's identification. And the murder weapon was found on the sidewalk beside the defendant's car. In light of this other evidence against the defendant, we are confident that the prosecutor's isolated reference to Lewis's knowledge of the outstanding warrants "did not influence the jury, or had but very slight affect." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).
Judgments affirmed.