COMMONWEALTH v. GOPAUL (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A jury convicted the defendant of assault and battery by means of a dangerous weapon on a person sixty years or older (ABDW), unlawful possession of a shotgun, discharging a firearm within 500 feet of a building, assault, threatening to commit a crime, larceny under $250, and assault and battery as a lesser included offense of armed assault with intent to murder a person sixty years or older. After a subsequent jury-waived trial, the judge found the defendant guilty of being an armed career criminal. On appeal the defendant argues that his ABDW and firearms convictions should be reversed because they were based solely on the uncorroborated testimony of an immunized witness, and that the judge erred by admitting certain identification evidence. The defendant also argues that the judge erred by instructing the jury on assault and battery as a lesser included offense of armed assault with intent to murder a person sixty years or older. The Commonwealth agrees with the defendant, as do we, that the giving of the lesser included offense instruction was erroneous. Cf. Commonwealth v. Vick, 454 Mass. 418, 432-433 (2009) (assault and battery by means of dangerous weapon is not lesser included offense of armed assault with intent to murder). We therefore reverse the assault and battery conviction.² Seeing no merit to the defendant's remaining arguments, we otherwise affirm.

1. Testimony of immunized witness. The defendant's then girlfriend, Alicia Garland, testified at trial under a grant of immunity. The gist of her testimony was as follows. On the evening of December 13, 2017, Garland drove the defendant, their friend Justin Yuman, and another friend known as “Smokey” to an apartment building, where the defendant intended to meet someone to sell drugs. After the defendant and Yuman entered the building and as Garland waited in the car, a man whom she knew as Jonathan Kizito knocked on her window, asked about the defendant's whereabouts, and ran into the building. Several minutes later, the defendant returned and stated that Kizito had “jumped” and “pistol whipped” him. The defendant appeared “very mad” and had a large cut on his forehead. As Garland drove away, headed towards Yuman's house, she saw Kizito following in a blue Toyota. Twice while Garland was stopped at a red light, Kizito left the Toyota, approached the passenger side of Garland's car, and exchanged words with the defendant. Garland heard the defendant say, “I'm coming to your house. Watch what's going to happen. Fuck you. You want to jump me.” Kizito followed Garland's car for ten to fifteen minutes.

Upon arrival at Yuman's house, the defendant disappeared into the backyard, then reappeared three minutes later carrying a large object, which he said was a gun, wrapped inside a blanket. The defendant put the gun in the trunk and reentered the car, and Garland drove towards Kizito's home on Phelps Road in Framingham. At the defendant's direction, Garland parked the car on nearby Sewell Street, next to a wooded area. The defendant retrieved the gun, still wrapped in the blanket, and “jumped a fence,” causing Garland to lose sight of him. Smokey also left the car. After several minutes Garland heard a loud noise that sounded like a firework and then saw the defendant and Smokey running through the woods, the defendant carrying the gun and the blanket. The defendant put the gun in the trunk and stated, “I killed somebody. ․ I shot someone.”

On appeal the defendant contends that Garland's testimony was uncorroborated and thus insufficient to convict him of ABDW and the firearms offenses. General Laws c. 233, § 20I, provides that “[n]o defendant in any criminal proceeding shall be convicted solely on the testimony of, or the evidence produced by, a person granted immunity.” “The purpose of the statute is to require support for the credibility of the immunized witness. That support may come as much in the form of corroboration of evidence of the commission of the crime as it does from proof that the defendant was a participant.” Commonwealth v. DeBrosky, 363 Mass. 718, 730 (1973). See Commonwealth v. Fernandes, 425 Mass. 357, 360 (1997), quoting Commonwealth v. Scanlon, 373 Mass. 11, 19 (1977) (“to provide the requisite credibility, ‘there must be some evidence in support of the testimony of an immunized witness on at least one element of proof essential to convict the defendant’ ”).

Here, there was abundant evidence, in addition to Garland's testimony, that the crimes occurred. The victim (Kizito's roommate) testified that, in the early morning hours of December 14, 2017, he heard a sound “like somebody busting into the front door” and saw a man holding a shotgun. The victim struggled with the intruder, attempting to keep the gun pointed upward. Eventually, the victim was able to escape and, as he was running to a neighbor's house, heard a loud “boom” coming from behind him. The neighbor testified that, around 2 a.m. that morning, she heard a “bang,” which she thought could be a gunshot; moments later, she heard the victim “banging on [her] door.” In addition, several officers testified to their observations of extensive damage to the front door of the victim's home; damage to the stairway bannister; small holes in the stairway wall consistent with the spray pattern of “birdshot from a shotgun”; “three long cylindrical tubes with metal ends ․ consistent with shotgun shells,” found in a nearby yard; and wounds on the victim's arm that “match[ed] the shot in the wall.” This evidence amply corroborated Garland's testimony concerning the commission of the crimes. See Commonwealth v. Resende, 476 Mass. 141, 152 (2017); Fernandes, 425 Mass. at 360.

Furthermore, although “[t]he corroborating evidence need not connect the defendant to the crime,” Resende, 476 Mass. at 152, there was such evidence here. Surveillance video footage of the relevant time frame, obtained from Phelps Road and Sewell Street, showed a man carrying what appeared to be a long gun wrapped in a sheet. The man was wearing camouflage pants, matching Garland's description of what the defendant was wearing at the time of the incident. Additionally, witness Trina Williams testified that, on the evening of December 14, 2017, she encountered outside her apartment complex a man who said, “How do you get out of here? ․ I just shot someone and they're looking for me.” Williams directed the man to a path leading to a Walgreens store, and the police apprehended the defendant in the Walgreens shortly thereafter. At that time the defendant was still wearing camouflage pants, and he had a “contusion-type injury” on his forehead, consistent with Garland's account of how he appeared after his altercation with Kizito. The evidence was therefore also sufficient to corroborate Garland's testimony that the defendant was the shooter. See Fernandes, 425 Mass. at 360.

2. Identification evidence. The defendant argues that the judge erred by admitting testimony that, following a theft from a liquor store on the evening of December 14, 2017, a store employee, Zachary Nunez, identified the defendant in a showup procedure.³ The defendant did not object to the testimony, nor did he file a motion to suppress the showup identification. We therefore review any error only to determine whether it resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Powell, 72 Mass. App. Ct. 22, 25 (2008).

A showup procedure is unnecessarily suggestive if “there was not ‘good reason’ for the police to conduct it under the circumstances” or if it was “conducive to irreparable mistaken identification.” Commonwealth v. Figueroa, 468 Mass. 204, 217 (2014), quoting Commonwealth v. Phillips, 452 Mass. 617, 628 (2008). Here, the showup procedure occurred approximately forty-five minutes to an hour after a suspect matching the defendant's description stole a boxed bottle of liquor from the store. The police also had information that the same suspect might have confronted Williams outside her apartment complex and might be armed. These circumstances provided good reason to conduct a showup procedure. See Figueroa, supra at 217-218. Moreover, the defendant does not explain why the procedure was “so unnecessarily suggestive that it created a substantial risk of a mistaken identification.” Id. at 218. We note that, prior to the identification, an officer gave Nunez instructions designed to mitigate the suggestiveness of the procedure. In any event, even were there error, it did not result in a substantial risk of a miscarriage of justice because the defendant conceded in his opening statement and closing argument that he committed the theft.

The defendant also argues that Williams's testimony that she “met the defendant” was comparable to an in-court identification and requires reversal of his convictions. The Commonwealth did not seek to elicit an identification from Williams, and the defendant did not object to her testimony or move to strike it. Thus, again, our review is for a substantial risk of a miscarriage of justice, Powell, 72 Mass. App. Ct. at 25, and we discern none. Although the testimony was improper, as the Commonwealth concedes, it was an unsolicited, fleeting reference, and the Commonwealth made no further mention of it. Additionally, there was strong circumstantial evidence that the man whom Williams encountered was in fact the defendant. The encounter occurred shortly after the theft of the boxed bottle of liquor and in close proximity to the liquor store, and Williams described the man as a Hispanic male carrying what appeared to be a black shoe box. The defendant was then apprehended at the Walgreens soon after Williams directed him to the path leading there. In light of all the evidence, Williams's fleeting reference to “the defendant” did not result in a substantial risk of a miscarriage of justice. See Commonwealth v. Marrero, 60 Mass. App. Ct. 225, 232 (2003) (improper reference did not create substantial risk of miscarriage of justice where it “was fleeting and of minimal impact in the context of [a] lengthy trial, where the evidence of the defendant's guilt was strong”).

Conclusion. The judgment on the conviction of assault and battery as a lesser included offense of armed assault with intent to murder a person sixty years or older is reversed, the verdict is set aside, and judgment shall enter for the defendant on that charge. The remaining judgments are affirmed.

So ordered.

Reversed in Part; Affirmed in Part

FOOTNOTES

2.   The defendant acknowledged at oral argument that remand for resentencing is unnecessary because he received a concurrent sentence of two and one-half years on the assault and battery conviction.

3.   The defendant's brief states that he is challenging Nunez's in-court identification, but Nunez made no such identification. At oral argument the defendant clarified that he is actually challenging the showup identification on the ground that it was unnecessarily suggestive.