COMMONWEALTH v. CELESTER (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On the defendant Jermaine Celester's direct appeal from his conviction of murder in the second degree, this court affirmed. Commonwealth v. Celester, 97 Mass. App. Ct. 1101 (2020). The defendant applied for further appellate review, which the Supreme Judicial Court denied without prejudice; the court remanded the case for consideration of the issue whether the prosecutor improperly exploited the trial judge's decision to exclude certain third party culprit evidence, resulting in a violation of the defendant's due process rights.² Commonwealth v. Celester, 485 Mass. 1106 (2020). Incorporating by reference our prior decision and considering the sole issue before us on remand, our decision remains unchanged.

A prosecutor's closing argument is improper if it “exploit[s] the absence of evidence that had been excluded at [the prosecutor's] request” (citation omitted). Commonwealth v. Harris, 443 Mass. 714, 732 (2005). The defendant first asserts that the prosecutor's statement that “there were no cars on Green Street” was improper. The testimony of Derek Gibbs, the surviving victim, and Marlene Scott, both of whom testified that there were no cars on Green Street at the time of the shooting, supported this statement. See Commonwealth v. Lamrini, 392 Mass. 427, 432-433 (1984) (no prosecutorial misconduct if closing remarks grounded in evidence). Furthermore, the excluded evidence did not place cars on Green Street at the time of the shooting. Contrast Commonwealth v. Carroll, 439 Mass. 547, 554-556 (2003) (improper exploitation by prosecutor where closing remarks on coventurer's motive “would not have been plausible” had excluded evidence been admitted). At best, the excluded evidence included J.D. Woods's hearsay statement that Tommy Woods (who was alleged to have been a passenger in a red Ford Tempo identified by Corrina DeFrancesco and pulled over by Brockton Police Officer Mark Reardon) told J.D. that he had gone to the crime scene after the shooting to determine whether one of his friends had been involved. Similarly, Donald Outlar (who was a passenger in the Tempo when Reardon pulled it over) told police when he was arrested that he had been in the Tempo and one block away from the scene at the time of the shooting.³ Although the defendant asserts this evidence contradicted the prosecutor's statement, he does not explain how. And, as set forth above, it is not apparent that it did. Compare Harris, 443 Mass. at 730-732 (excluded evidence included convictions of victim as a “common nightwalker” and prosecutor stated in closing argument that there was no evidence that the victim was a prostitute).

Next, the defendant quarrels with the prosecutor's statement that DeFrancesco's testimony should be rejected because there was “[n]o corroboration. Zero. And all evidence [sic] to the contrary. [S]he's ․ on an island by herself.” The defendant omits, however, that it is clear that the prosecutor was referencing DeFrancesco's uncorroborated testimony regarding the alleged dying declaration of Wakime Woods, the other victim, that the shooter was a passenger in the backseat of the car that DeFrancesco testified drove past the scene of the shooting. None of the excluded evidence supported DeFrancesco's testimony regarding the dying declaration.

Also, the defendant argues that the prosecutor's statement that DeFrancesco's “testimony[,] aside from the two victims' identities and that they were shot out on Green Street[,] should be disregarded in its entirety.” Again, none of the excluded testimony contradicts the prosecutor's argument, which was properly based on evidence impeaching DeFrancesco, including (as the prosecutor expressly spelled out just prior to the objected-to statement) her lengthy criminal record and the reasonable inference that her testimony regarding Wakime's dying declaration, unsupported by her contemporaneous statements to Brockton Police Officer Manny Gomes, was a recent fabrication.

Finally, the defendant objects to the prosecutor's statement that “if Corrina saw a car on Green Street[,] ․ [the red Ford Tempo] was not it.” The defendant omits the prosecutor's preceding statement that “the evidence has established that that red Ford Tempo had nothing to do with the case” -- a statement grounded in the evidence that there was a lack of any ballistic evidence in the car when it was impounded by Reardon. The defendant also ignores that the prosecutor's objected-to statement referred to the impeachment evidence. Specifically, the prosecutor stated, “[I]f Corrina saw a car on Green Street[,] saying what she did that night -- doing the things that she said to the police on ․ [the night of the shooting], if there was a car there, that car was not it.” This was supported by evidence, including DeFrancesco's contemporaneous description of the car she had seen, her initial statement to officers that the red Ford Tempo Reardon pulled over was not the vehicle she had seen at the scene of the shooting, and the fact that her testimony at the trial (many years after the shooting) differed substantially from her statement to officers the evening of the shooting. None of this was improper exploitation of the excluded evidence. Indeed, the prosecutor went on to state: “And even if it was [the red Ford Tempo], a car backing up from where bodies are in the street, just after shots have rung when nothing else of that car is seen by [the] witness, Ms. DeFrancesco, that is a distraction.” The excluded statements from Outlar and J.D. (that the car was a block away and that Tommy had gone to see whether one of his friends was involved in the shooting) were not inconsistent with the prosecutor's statement.⁴ ,  ⁵

Our decision affirming the defendant's conviction of murder in the second degree remains unchanged. The disposition of this case is stated in Celester, 97 Mass. App. Ct. 1101.

So ordered.

Affirmed.

FOOTNOTES

2.   On appeal before this court, the defendant framed this argument as whether prejudice resulted from the judge's alleged abuse of discretion in excluding certain third party culprit evidence. Because we concluded that the judge had not abused his discretion, we did not reach the argument concerning prejudice. Celester, 97 Mass. App. Ct. 1101. In his petition for further appellate review, the defendant recast his argument regarding exploitation of excluded evidence as a due process violation that in and of itself required his conviction to be vacated. Per the court's order, we now address this argument as presently reframed.

3.   Notably, evidence was admitted that Reardon pulled the Red Tempo over a few blocks from the scene.

4.   Even assuming arguendo that the prosecutor's statements were improper, they were not prejudicial. As we have previously set forth, the defendant marshalled a third party culprit defense through DeFrancesco (who testified regarding the red Tempo at the scene and Wakime's dying declaration) and Reardon (who testified regarding stopping the vehicle a few blocks from the scene and the flight of the occupants). The jury's rejection of the defense was grounded in overwhelming evidence, including inter alia Gibbs's testimony regarding the circumstances of his shooting, Scott's testimony that Wakime identified “the kid I was with” as the shooter, and the evidence of the defendant's animus towards Gibbs stemming from Gibbs's inability or unwillingness to identify the person who had shot the defendant's friend. Moreover, the judge gave a curative instruction, cautioning the jury that closing argument was not evidence. See Commonwealth v. Santiago, 425 Mass. 491, 500 (1997).

5.   To the extent that any arguments are not expressly addressed, “they ‘have not been overlooked. We find nothing in them that requires discussion.’ ” Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). Additionally, we do not address claims that are not supported by reasoned argument or citations as they do not rise to the level of appellate advocacy required under Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019). See Commonwealth v. Gray, 423 Mass. 293, 296-297 (1996). See also Commonwealth v. DiRenzo, 52 Mass. App. Ct. 907, 909 (2001) (claim not supported by cogent reasoning or citation to authority deemed insufficient and waived).