COMMONWEALTH v. Charles REDDICKS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant, Charles Reddicks, was convicted of murder in the second degree, carrying a firearm without a license, and carrying a loaded firearm without a license.2 On appeal, the defendant argues that permitting the Commonwealth to conduct an inquiry into the criminal offender record information (CORI) of prospective jurors violated the equal protection clause of the United States Constitution. He further argues that the Commonwealth improperly exercised peremptory challenges based on the results of the CORI inquiry, and that the trial judge erred in failing to conduct an analysis pursuant to Batson v. Kentucky, 476 U.S. 79, 95 (1986), and Commonwealth v. Soares, 377 Mass. 461, 486, cert. denied, 444 U.S. 881 (1979). In addition, the defendant claims error in the admission of certain firearm evidence, purported identification testimony by Sergeant Detective Richard Daley, and statements made by the defendant during an interview with Detective John Callahan and Sergeant Detective Daley. Finally, the defendant contends that his ability to cross-examine a witness for the Commonwealth was impermissibly restricted. For the reasons that follow, we affirm.
Background. We briefly summarize the facts underlying the defendant's convictions, reserving certain details for our discussion. The defendant and the victim, Mariano Malave, did not know each other but both sold marijuana. In April of 2012, the defendant asked Ian Follette, who had previously purchased marijuana from both the defendant and the victim, if he knew “any connects that sold large quantities of marijuana.” In response, Follette provided the defendant with the victim's name and contact information.
On the morning of April 27, 2012, the defendant sent a text message to the victim, identifying himself as “Jonathan,” and inquired about purchasing a pound of marijuana. The purchase was arranged via text messages, and that evening, the defendant drove to the victim's home located in the Jamaica Plain section of Boston. At 6:20 p.m., a call from the defendant's cell phone was placed to the victim's cell phone. Around the same time, the victim's girlfriend overheard the victim providing directions to the victim's apartment to an individual over the phone.3 Upon ending the call, the victim “grabbed a sample of the marijuana,” and exited his kitchen into the back hallway of his apartment building. After a brief period of time, the victim returned inside the apartment to retrieve additional marijuana, and then went back to the back hallway area. At this point, three shots were fired at the victim, one of which struck the victim in the head, and another of which struck the victim in the back.
A 911 call was placed, and police reported to the scene shortly thereafter. That same evening, police conducted interviews of nearby witnesses, and obtained a partial license plate number of a blue vehicle that was parked outside the victim's home at the time of the homicide. One witness, Leanne Parker, informed police that shortly before the homicide, while sitting in her vehicle, she observed a black man, with “long dreads” or curls, exit a blue vehicle while talking on the phone and walking toward the victim's home. After a few moments, the witness heard the sound of gunshots and observed the same man run from the house, get into the driver's seat of the blue car, and drive away.
The police traced the partial license plate number that Parker had provided to a 1992 blue Ford Escort registered to the defendant's grandmother, Catherine Reddicks, at 116 Millet Street. There were six registered drivers who lived at that residence, and of those six individuals, police determined that the defendant was the only one to fit the description given by Parker. The defendant was interviewed by Detective Callahan and Sergeant Detective Daley, and admitted to driving the Ford Escort on April 27, 2012. In his interview, the defendant admitted to sending text messages to the victim to purchase marijuana, but stated that he had never met the victim in person, and denied involvement in the homicide. The defendant was ultimately indicted by a grand jury for murder, armed robbery, carrying a firearm without a license, carrying a loaded firearm without a license, and possession of ammunition without a license.
Discussion. 1. Inquiry into jurors’ criminal records. Prior to trial, the Commonwealth filed a motion in limine seeking to conduct a CORI inquiry of the prospective jurors, pursuant to Commonwealth v. Cousin, 449 Mass. 809, 815-820 (2007). The defendant filed a corresponding motion to preclude the Commonwealth from accessing such information, but requested in the alternative that the Commonwealth also run the prospective jurors’ information through the victim/witness database.4 The judge allowed the Commonwealth's motion, and as requested by the defendant, ordered the Commonwealth to check the prospective jurors’ information in both the CORI database and the victim/witness database.
During jury empanelment, a CORI inquiry was conducted of each prospective juror, and the inquiry revealed that six jurors failed to disclose all or part of their criminal record on the juror questionnaire. Of those six jurors, one had a restraining order against her and three had relatively minor offenses on their record.5 Both defense counsel and the prosecutor agreed that there was no need to inquire further of those four jurors and they were seated in the jury box.
However, although juror no. 47 indicated on the questionnaire that she had no prior record, her CORI revealed a number of “innocuous motor vehicle offenses,” as well as a dismissed charge for possession of a Class B substance sixteen years earlier. The Commonwealth then requested that the judge conduct a voir dire of juror no. 47. During the voir dire, juror no. 47 informed the judge that all of her charges had been dismissed, and that she did not recognize that she was required to disclose dismissed charges when filling out her questionnaire. The judge credited the juror's explanation and informed counsel that she encountered this scenario “quite often” and “[saw] no reason to excuse [juror no. 47] for cause.” The Commonwealth then exercised a peremptory challenge, and defense counsel objected stating, “I objected to the Commonwealth's ability to run the records, and I just want to preserve that objection.” Over that objection, the judge excused juror no. 47.
Later during empanelment, it was discovered that juror no. 122, who had disclosed on his questionnaire that he had been convicted of assault and battery, had not disclosed a number of additional charges and convictions that occurred over a fourteen-year period, including violation of an abuse prevention order, resisting arrest, malicious destruction of property, possession of marijuana, forgery, trespassing, disorderly conduct, and multiple assault and battery charges. Sua sponte, the judge conducted a voir dire of juror no. 122, and the juror explained that all of his charges, except the one that he disclosed on his questionnaire, had been sealed. The juror expressed that he was not aware that he had to disclose sealed charges and convictions. The judge credited the juror's explanation, stating that she had “heard this before,” and believed it to be “absolutely reasonable” for the juror to think that he was not required to disclose charges and convictions that had been sealed. The judge declined to excuse the juror for cause, and the Commonwealth again exercised a peremptory challenge.
At this point, the defendant objected and raised for the first time that the Suffolk County District Attorney's office's practice of conducting an inquiry into the prospective jurors’ criminal records resulted in the systematic exclusion of prospective African-American jurors from the jury. Specifically, defense counsel stated,
“Just so the record is clear, Judge, everyone so far that [the prosecutor] has run, and I'm not blaming him, that's come back with a record has been African-American, and so it appears to me that the running of records of potential jurors, in Suffolk County, anyhow, leads to the disclosure of criminal records and exclusion of African-American individuals or potential jurors. My client is an African-American. I would object at this point, Judge.”
The judge noted defense counsel's objection but responded that “in the two instances that [the prosecutor] has done that, I've accepted the jurors’ explanations, but that doesn't excuse them from fully revealing their criminal history, and in both of those situations, neither juror faithfully disclosed their criminal history.” The judge then excused juror no. 122. When jury empanelment concluded, the judge commented on the record that the jury “consist[ed] of at least five African-Americans.”
a. Constitutionality of CORI inquiry of prospective jurors. The defendant argues that allowing the Commonwealth to conduct a CORI inquiry of prospective jurors was itself a violation of the equal protection clause and the defendant's right to a jury of his peers. The crux of the defendant's argument is that such a practice disproportionately impacts African-American jurors who are “more likely to face discrimination during every single phase of our criminal justice system.”6 The argument is unavailing.
In Cousin, 449 Mass. at 817-819, the Supreme Judicial Court (SJC) held that the CORI statute, G. L. c. 6, § 172, permits prosecutors to access prospective jurors’ CORI as part of their “criminal justice duties.” In so holding, the court recognized that a criminal justice function of prosecutors is “the selection of a qualified and impartial jury,” and that “[i]nquiring into the criminal records of jurors in a criminal case” assists in serving that function. Id. at 816. In addition, the court noted that “the prosecution has a legitimate interest in securing ‘a jury not unfairly biased in favor of acquittal,’ ” and that as a result, the Commonwealth, even before the advent of CORI, had often been permitted to check the criminal histories of prospective jurors. Id., quoting Soares, 377 Mass. at 483.
The defendant now asks us to hold otherwise and determine that the practice of running prospective jurors’ CORI is unconstitutional.7 The defendant, however, has failed to provide us with the factual basis or the constitutional standard to do so. In supporting his claim, the defendant has done no more than argue that prospective jurors who are African-American are more likely to have a criminal record, and as such, are more likely to be excluded from jury service for that reason.8 In doing so, he cites law review articles that assert this very proposition. To be sure, the SJC, in recent decisions, has acknowledged that there is systemic racism present in the Commonwealth's criminal justice system that leads to disproportionate stops, frisks, searches, and in turn, arrests of people of color. See Commonwealth v. Long, 485 Mass. 711, 717-718 (2020); id. at 740 (Budd, J., concurring); Commonwealth v. Evelyn, 485 Mass. 691, 701 (2020). However, this observation, alone, does not provide us with a basis for declaring unconstitutional a practice specifically sanctioned by the SJC.
To begin with, the defendant has not set forth the standard to be applied to his claim. See Commonwealth v. Cassidy, 470 Mass. 201, 209 n.9 (2014) (defendant's burden to cite relevant legal authority). The Commonwealth argues that, to show systemic discrimination in jury selection, the defendant must demonstrate that
“(1) the group allegedly discriminated against is a ‘distinctive’ group in the community, (2) that the group is not fairly and reasonably represented in the venires in relation to its proportion of the community, and (3) that underrepresentation is due to systematic exclusion of the group in the jury selection process.”
Commonwealth v. Tolentino, 422 Mass. 515, 519 (1996), quoting Commonwealth v. Bastarache, 382 Mass. 86, 96-97 (1980). We agree.9
It is undisputed that African-American jurors are a distinctive group in the community, and specifically that the two jurors who were ultimately excluded in this case as a result the CORI inquiry were African-American. The defendant, however, has not provided us with sufficient information regarding the number of African-American jurors in his venire or in past Suffolk County venires. Nor is there any information in the record about the racial composition of the community from which the venire was drawn. Accordingly, the defendant has failed to carry his burden. While “[a] criminal defendant is constitutionally entitled to a jury selection process free of systematic discrimination against his grouping in the community,” on this record, we cannot conclude that permitting the Commonwealth to check the CORI of prospective jurors is inconsistent with that right. Commonwealth v. Fryar, 425 Mass. 237, 241 (1997).
Moreover, we note that, contrary to the defendant's contentions, the CORI inquiry conducted by the Commonwealth did not result in the exclusion of jurors simply for having a criminal record. In fact, the judge did not excuse for cause any of the jurors who had a criminal record but failed to disclose it, and perhaps more significantly, the majority of the jurors who failed to make the requisite disclosure, all of whom were African-American,10 were seated on the jury without a voir dire being conducted. Only juror no. 47 and juror no. 122, who arguably had more significant charges on their record, were questioned by the judge about their lack of disclosure. Though the judge recognized that individuals with dismissed charges or sealed records often misinterpret their obligation with regard to disclosure,11 and found that both jurors’ omissions were inadvertent, the prosecutor had an independent duty to ensure that “a qualified and impartial jury” was selected. Cousin, 449 Mass. at 816. A properly exercised peremptory challenge serves that purpose. See Commonwealth v. Wood, 389 Mass. 552, 560 (1983) (“The purpose of the properly exercised peremptory challenge is to aid the constitutional right to a fair and impartial jury”). See also Cousin, supra at 822 (even inadvertent failure to disclose criminal record deprives parties of right to make intelligent decision whether to exercise peremptory challenge).
b. Peremptory challenges exercised after CORI inquiry.12 The defendant further argues that the peremptory challenges to juror no. 47 and juror no. 122 as a result of their CORI were improperly exercised for a discriminatory purpose, and therefore, the judge abused her discretion in failing to conduct a Batson-Soares inquiry.
“The Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights prohibit a party from exercising a peremptory challenge on the basis of race.” Commonwealth v. Sanchez, 485 Mass. 491, 493 (2020), quoting Commonwealth v. Jones, 477 Mass. 307, 319 (2017). When the defendant makes a Batson-Soares objection, it “triggers a three-step process.” Commonwealth v. Henderson, 486 Mass. 296, 311 (2020). In the first step, the defendant bears the burden of rebutting the presumption that the peremptory challenge was proper. See Commonwealth v. Jackson, 486 Mass. 763, 768 (2021). To do so, he “ ‘must make out a prima facie case’ that [the challenge] was impermissibly based on race or other protected status ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ ” Id., quoting Johnson v. California, 545 U.S. 162, 168 (2005). Second, if such a showing is made, “the burden shifts to the party exercising the challenge to provide a ‘group-neutral’ explanation for it.” Jackson, supra, quoting Sanchez, supra at 493. “Third and finally, the judge must then determine whether the explanation is both ‘adequate’ and ‘genuine’ ” (quotation and citation omitted). Jackson, supra.
First, when the prosecutor exercised a peremptory challenge to juror no. 47, the defendant objected, but not on the ground of discriminatory exclusion. Rather, defense counsel stated that she was preserving her objection to the Commonwealth conducting a CORI inquiry in the first place. At this point, no mention of discriminatory purpose had been made, and accordingly, the defendant's objection failed to “trigger an obligation on the judge's part to make a finding whether the presumption of propriety was rebutted.” Commonwealth v. Smith, 450 Mass. 395, 406 (2008). While a trial judge may raise a Batson-Soares violation sua sponte, see id., the judge here did not abuse her discretion in failing to do so where the challenge was in direct response to the juror failing to disclose her criminal record. See Commonwealth v. LeClair, 429 Mass. 313, 321 (1999) (“A trial judge is in the best position to decide if a peremptory challenge appears improper and requires an explanation by the party exercising it”). Cf. Jones, 477 Mass. at 324 (“the possibility that [juror] was struck because of her race is heightened by the fact that the record reveals no race-neutral reason that might have justified the strike”).
Secondly, after it was learned that juror no. 122 had an extensive and undisclosed criminal record, the prosecutor exercised a peremptory challenge, and the defendant objected raising the issue of race for the first time. However, in his objection, the defendant did not argue that the prosecutor was improperly challenging the juror based on the juror's race, nor did he specifically raise a Batson-Soares objection.13 Instead, he argued that the practice of checking prospective jurors’ CORI, in Suffolk County, leads to the exclusion of African-American jurors from the jury. It is the defendant's burden to not only state his objection to the Commonwealth's peremptory challenge, but also to state the grounds for that objection. See Smith, 450 Mass. at 406. Although we agree with the defendant that he need not specifically cite Batson-Soares, a general objection is likely insufficient to preserve such a challenge. See id. See also Commonwealth v. Lopes, 478 Mass. 593, 600 (2018).
Moreover, even if we were to determine that the defendant properly raised a Batson-Soares objection to the strike of prospective juror no. 122, a conclusion we do not reach, “[w]e will not overturn the judge's ruling if there is a sound basis in the record for her ruling.” Commonwealth v. Suarez, 59 Mass. App. Ct. 111, 114 (2003). The judge, in her response to defense counsel's objection, implicitly determined that the requisite showing of impropriety had not been made. See id. While rebutting the presumption of propriety is “not an onerous task,” Jones, 477 Mass. at 321, the defendant must show “that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” Jackson, 486 Mass. at 768, quoting Johnson, 545 U.S. at 168.
Here, the strike exercised by the Commonwealth against juror no. 122 “appeared to be made for obvious reasons that did not raise any inference of bias.” Jackson, 486 Mass. at 775. Initially, juror no. 122 was seated on the jury and the Commonwealth expressed contentment with the juror. It was only after the CORI inquiry revealed that juror no. 122 failed to “faithfully disclose [his] criminal history” that the Commonwealth exercised a peremptory challenge. The judge, accordingly, determined that the Commonwealth was entitled to exercise such a challenge at that point because the juror's CORI was “a piece of information that was not available to [the prosecutor] at the time of his vetting.”14 Though the defendant is also African-American, there were, in total, five African-American jurors seated on the sixteen-person jury. See Henderson, 486 Mass. at 313 (considering number of black jurors seated on jury as one factor in assessment of “whether the prosecutor had challenged a disproportionate number of black jurors”). Cf. Commonwealth v. Ortega, 480 Mass. 603, 607 (2018). Based on the totality of the facts and circumstances here, the judge did not abuse her discretion in concluding that the defendant failed to meet his burden of showing the impropriety of the prosecutor's peremptory challenge to prospective juror no. 122. See Jackson, 486 Mass. at 776.
2. Evidentiary issues. a. Prior bad act evidence. The defendant next claims that he was prejudiced by the admission of improper prior bad act evidence. At trial, Thomas Washington, a friend of the defendant, testified that four months before the murder he observed the defendant in possession of a silver revolver with a black handle.15 In addition, the Commonwealth introduced two photographs, recovered from the defendant's cell phone, of the defendant holding a silver revolver with a black handle. The defendant objected to the admission of this evidence at trial, and thus we review its admission for prejudicial error. See Commonwealth v. Montez, 450 Mass. 736, 744 (2008).
Although the prosecution may not introduce evidence of the defendant's prior bad acts to show that he has a propensity to commit such acts, this evidence may be otherwise admissible “if relevant for another purpose, ‘such as to show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, motive, or state of mind.’ ” Commonwealth v. Philbrook, 475 Mass. 20, 25-26 (2016), quoting Commonwealth v. Howard, 469 Mass. 721, 738 (2014). Specifically, evidence that the defendant possessed a weapon prior to the commission of a weapons-related crime may be admissible “to show that the defendant had access to or knowledge of firearms and bullets.” Commonwealth v. McGee, 467 Mass. 141, 157 (2014). “The critical questions are whether the weapons-related evidence is relevant and, if so, whether the probative value of the evidence is substantially outweighed by its prejudicial effect.” Commonwealth v. Valentin, 474 Mass. 301, 306 (2016). The decision to admit such evidence is left to the sound discretion of the trial judge, and we will not disturb that decision “absent palpable error.” McGee, 467 Mass. at 156.
Here, the Commonwealth introduced the two photographs of the defendant holding a silver revolver, as well as the testimony of Washington, to demonstrate that the defendant had access to firearms, and more specifically revolvers, just four months prior to the homicide. There was testimony before the jury that, of the possible seventeen firearms that could have been used as the murder weapon, fifteen of those firearms were in fact revolvers. Accordingly, the challenged firearm evidence was relevant, and we discern no abuse of discretion in the judge's determination that the probative value of this evidence was not substantially outweighed by its prejudicial effect.16 Further, immediately following Washington's testimony, the judge provided a limiting instruction to the jury cautioning them that they were only permitted to consider the defendant's prior possession of a firearm as evidence that the defendant had “familiarity with or access to firearms.” The judge specifically instructed the jurors that there was no evidence that the firearm, testified to by Washington, was the same firearm used during the homicide. We presume the jury followed these instructions, see Commonwealth v. Ridge, 455 Mass. 307, 323 (2009), and perceive no prejudicial error by the admission of this evidence.
b. Motion to exclude photographs. Prior to trial, the defendant moved to exclude the photographs depicting him holding the silver revolver arguing, that they were obtained in an unrelated prior case without a valid search warrant. In his prior case, the defendant moved to suppress evidence obtained from his cell phone arguing that the search warrant lacked probable cause. The judge in the prior case found that the search of the cell phone was conducted pursuant to a valid warrant, and accordingly, denied the defendant's motion. The defendant then pleaded guilty to the charges in that case. See note 14, supra. The Commonwealth argues that because the defendant already litigated the validity of the search warrant, he is estopped from relitigating the issue in this case. We agree.
There are five requirements that must be satisfied in order for collateral estoppel, or issue preclusion, to apply in the context of a suppression motion:
“(1) the issues in the two proceedings must be identical; (2) the party estopped must have had sufficient incentive to litigate the issue fully and vigorously; (3) the party estopped must have been a party to the previous litigation; (4) the applicable law must be identical in both proceedings; and (5) the first proceeding must have resulted in a final judgment on the merits such that the defendant had sufficient incentive and an opportunity to appeal.”
Commonwealth v. Cabrera, 449 Mass. 825, 829 (2007).
Here, there is no dispute that the parties, legal issues, and applicable law were the same in both proceedings. The defendant argues however that he did not have sufficient incentive to litigate the issues in the prior case “fully and vigorously,” nor did he have the incentive or opportunity to appeal. This argument is belied by the nature of the significant charges against the defendant in the prior case. See note 14, supra. Furthermore, “[b]y pleading guilty, the defendant gave up his right to pursue a challenge to the denial of his suppression motion, and therefore his plea generated a judgment that is final, at least in regard to the suppression issue.” Cabrera, 449 Mass. at 831. See id. at 830 (“a plea of guilty by its terms waives all nonjurisdictional defects”).
Though the defendant contends that his guilty plea was tendered “before the advent of conditional pleas, where a defendant was forced to face trial in order to preserve his appellate rights on a motion to suppress decision,” the opportunity to appeal is the focus of the inquiry. See Cabrera, 449 Mass. at 831. A trial and opportunity to appeal from that trial was available to the defendant, and in deciding to forego those options, “the defendant also gave up any right to relitigate the suppression issue.” Id. The defendant was therefore estopped from raising the search warrant's validity in the present case, and his motion to exclude was properly denied.
c. “Identification” testimony. The defendant next claims that the testimony of Sergeant Detective Daley was improper lay opinion and impermissibly constituted an in-court identification by an eyewitness, Leanne Parker, who had never formally participated in an identification procedure. We disagree.
At trial, Sergeant Detective Daley testified that, upon interviewing Parker on the date of the murder, he obtained a partial license plate number and a physical description of the defendant and the vehicle he was operating. Another detective conducted a query of the partial license plate number in the Registry of Motor Vehicles database and discovered that the vehicle was a 1992 blue Ford Escort registered to Catherine Reddicks at 116 Millet Street. The detective then conducted a search of that address in the Registry of Motor Vehicles database and learned that three males and three females were registered drivers at that location. At this point, Sergeant Detective Daley testified that only one of those registered drivers looked similar to the physical description provided by Parker; that individual was the defendant.17 Sergeant Detective Daley then identified the defendant in court.18 Contemporaneously, the judge instructed the jury that they were not to consider Sergeant Detective Daley's testimony as an identification of the defendant by Parker.19
The defendant is correct that “[m]aking a determination of the identity of a person from a photograph or video image is an expression of an opinion,” Commonwealth v. Wardsworth, 482 Mass. 454, 475 (2019), quoting Commonwealth v. Pina, 481 Mass. 413, 429 (2019), and that such an identification by a lay witness is admissible only “when the witness possesses sufficiently relevant familiarity with the defendant that the jury cannot also possess.” Id., quoting Commonwealth v. Vacher, 469 Mass. 425, 441 (2014). However, the defendant is incorrect in his assertion that this is what occurred here.
Sergeant Detective Daley was not shown a photograph of the defendant to identify at trial. Rather, the detective merely testified that he obtained a photograph of the defendant from the Registry of Motor Vehicles database,20 and connected the defendant to the crime based on the physical description provided by Parker as well as the partial license plate number that led him to the defendant's address. Contrary to the defendant's claim, at trial there was no lay opinion identification made by Sergeant Detective Daley based on a photograph of the defendant. Cf. Commonwealth v. Yang, 98 Mass. App. Ct. 446, 452-453 (2020) (improper for detective to testify at trial “that the man depicted in the photograph appeared to be the defendant”).
Additionally, there was no “back-door” admission of an in-court identification of the defendant by Parker. While Commonwealth v. Crayton, 470 Mass. 228, 241-242 (2014), prohibits the admission of an in-court identification, absent “good reason,” when an eyewitness has not participated in a prior out-of-court identification, Parker did not identify the defendant in-court, and Sergeant Detective Daley did not testify that she had. Instead, Daley merely testified to the steps taken by the detectives during the course of the investigation that ultimately led them to narrow their focus on the defendant. This was permissible in light of the fact that, in his defense, the defendant attacked the nature and quality of the police investigation. See Commonwealth v. Avila, 454 Mass. 744, 755 (2009) (where defendant attacks police investigation, “the Commonwealth was entitled to elicit testimony about why the investigators chose the particular investigative path they did”).
The defendant also claims that Sergeant Detective Daley improperly identified Catherine Reddicks's vehicle from Massachusetts Bay Transportation Authority surveillance footage presented at trial.21 However, contrary to the defendant's contentions, Sergeant Detective Daley did not identify at trial the blue Ford Escort from video surveillance footage. Daley testified only to the steps he took in locating the vehicle and connecting it to the crime based on the partial license plate number he obtained from a witness on the date of the murder. As previously stated, such testimony was permissible. See Avila, 454 Mass. at 755.
d. Voluntariness of defendant's statements. The defendant next claims that statements made by him during an interview with Detective Callahan and Sergeant Detective Daley were not voluntary and should have been suppressed. “[I]n reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law.” Commonwealth v. Tremblay, 480 Mass. 645, 652 (2018), quoting Commonwealth v. Clarke, 461 Mass. 336, 340 (2012). “[W]e ‘review de novo any findings of the motion judge that were based entirely on the documentary evidence.’ ” Commonwealth v. Monroe, 472 Mass. 461, 464 (2015), quoting Commonwealth v. Thomas, 469 Mass. 531, 539 (2014).
“A voluntary statement is one that is ‘the product of a rational intellect and a free will,’ and not induced by physical or psychological coercion.” Monroe, 472 Mass. at 468, quoting Tremblay, 460 Mass. at 207. “The test for voluntariness is ‘whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act.’ ” Commonwealth v. Durand, 457 Mass. 574, 595-596 (2010), quoting Commonwealth v. Souza, 428 Mass. 478, 483-484 (1998). “Factors relevant to the totality of the circumstances include whether promises or other inducements were made to the defendant by the police, as well as the defendant's age, education, and intelligence; experience with the criminal justice system; and his physical and mental condition, including whether the defendant was under the influence of drugs or alcohol.” Durand, supra at 596. In addition, “the ‘use of false information by police during an interrogation is deceptive and is a relevant factor indicating a possibility that the defendant's statements were made involuntarily.’ ” Commonwealth v. Novo, 442 Mass. 262, 267 (2004), quoting Commonwealth v. Selby, 420 Mass. 656, 664 (1995).
During the interview, Detective Callahan made statements to the defendant suggesting that the defendant's silence and denial could be used against him in court. Specifically, Detective Callahan stated,
“[T]his is a golden opportunity to give your version of the story because a year down the road, two years down the road we're going to be in a courtroom and I'm going to be sitting across from you, maybe both, or Rich Daley and if I'm there, it's me, I'm going to be looking at you. I'm going to be sitting up there in a suit and tie. I'm going to be looking at you, and I'm going to be saying I gave him, Sergeant Daley gave him, the opportunity to offer a reason as to why he did what he did, as opposed to not saying anything and me looking over at the jury as I'm looking back to you and everything that is going to come out of our investigation to the jury is going to be that Charles Reddicks is a cold-blooded killer. That he robbed dude, shot dude over nothing.
As opposed to you telling us, there's got to be a viable reason you do what you did. You can -- Charles you can deny it all you want but you're there, we've got you there.”
We agree with the motion judge that these statements were improper and were akin to the “now-or-never” language that was deemed impermissible in Novo, 442 Mass. at 267-269.22 In an attempt to get the defendant to confess his motive for the murder, the detective improperly suggested to the defendant that his failure to provide that information, and his denial of committing the murder, could be used against him in court, which is “plainly untrue.” Id. at 268. See Commonwealth v. Spencer, 465 Mass. 32, 46 (2013) (defendant's denial of accusation, similar to his silence, is inadmissible). We, however, also agree with the motion judge that the Commonwealth met its burden of proving that the defendant's statements were nevertheless voluntary.
On the date of the interview, the defendant was eighteen years old, and was a student at the Community Academy.23 During the interview, the defendant admitted to knowing someone by the name of “Mario,”24 admitted to sending him text messages on the date of the homicide to purchase marijuana, and further admitted to knowing the difference between an automatic weapon and a revolver. However, none of the incriminating statements made by the defendant were tied to “or otherwise made in response to the pressure tactics employed by the officers.” Durand, 457 Mass. at 596-597. The improper statements made by Detective Callahan were designed to elicit a motive for the murder, or put another way, a confession. Throughout the interview, however, the defendant never wavered in denying his involvement in the murder. In short, the detective's improper tactics were unsuccessful. As the motion judge concluded, the defendant's behavior during the interview reflects “a young man who made limited, carefully chosen responses.” The defendant remained calm during the interview, and acted in a manner that revealed that he was not “at the mercy of the interrogating officers.” Id. at 597. Based on the totality of the circumstances here, the defendant's will was not overborne by the improper statements made by the detective. There was no error in the denial of the motion to suppress.
3. Cross-examination. Finally, the defendant argues that he was impermissibly restricted from cross-examining a witness for the Commonwealth, namely Thomas Washington. “Both the Sixth Amendment and art. 12 guarantee a criminal defendant's right to confront the witnesses against him through cross-examination.” Commonwealth v. Miles, 420 Mass. 67, 71 (1995). “However, a criminal defendant's confrontation right is not absolute,” and “the scope of cross-examination rests largely in the sound discretion of the trial judge.” Id. In determining whether the trial judge unreasonably limited cross-examination, “we weigh the materiality of the witness's direct testimony and the degree of the restriction on cross-examination.” Id. at 72. We will not disturb a “trial judge's determination as to the proper scope of cross-examination unless the defendant demonstrates that the judge abused [her] discretion and that the defendant was prejudiced thereby.” Id.
During a motion in limine and at trial, the judge informed defense counsel that if, on cross-examination, she attempted to suggest that Washington was lying about observing the defendant with a gun, there was a possibility that counsel might open the door to the defendant's conviction for possessing that weapon. As a result of that exchange, the defendant decided to forego cross-examining Washington altogether. The defendant now claims that the judge erred in limiting his cross-examination in this manner. The claim is without merit.
While Washington's testimony was material in proving that the defendant had access to and familiarity with weapons, specifically revolvers, the judge did not wholly restrict the defendant from cross-examining him. Rather, the judge merely warned the defendant that, if he sought to introduce a false narrative and argue that Washington was not telling the truth about observing him with a weapon, the Commonwealth would likely be entitled to rebut that evidence with the defendant's prior conviction related to that gun. We discern no abuse of discretion in this ruling. See Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 53 (2009) (where defendant unfairly depicts himself, Commonwealth entitled to rebut with evidence of prior convictions).
2. The defendant was acquitted of armed robbery, and his conviction for possession of ammunition without a license was dismissed as duplicative of his conviction of carrying a loaded firearm.
3. At around 6 p.m. that evening, the defendant communicated with Follette, and notified him that he was going to the victim's home.
4. As grounds for the motion, the defendant claimed that allowing the prosecution to access the CORI of prospective jurors violated his rights to a trial “drawn from a representative cross-section of the community” and to due process.
5. Juror no. 5 had a restraining order against her. Juror no. 28, who was later excused for cause for unrelated reasons, was charged with “failure to use a stolen Registry of Motor Vehicle's signature.” Juror no. 29 had a charge for operating to endanger that was dismissed. Finally, juror no. 102 was charged with driving with a suspended license, which was later dismissed upon the payment of court costs.
6. As noted, the defendant's motion in limine raised different grounds to assert that the Commonwealth should not be permitted to access prospective jurors’ CORI. The argument he advances on appeal was raised for the first time during his objection to the peremptory challenge exercised to exclude juror no. 122.
7. The defendant argues that “[t]he SJC's approval of running jurors’ records in Cousin simply runs afoul of the principles set forth in Batson and Soares, and its recent progeny in [Commonwealth v. Robertson, 480 Mass. 383 (2018)], [Commonwealth v. Jones, 477 Mass. 307 (2017)], [Commonwealth v. Ortega, 480 Mass. 603 (2018)], and [Flowers v. Mississippi, 139 S. Ct. 2228 (2019)].” We, however, “have no power to alter, overrule or decline to follow the holding of cases the Supreme Judicial Court has decided.” Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003).
8. The defendant also contends that the practice is particularly unfair because a prospective juror's answer regarding the juror's interactions with law enforcement is the only part of the questionnaire that is “checked” to determine if it is fully complete. In this case, however, upon request, the judge ordered the Commonwealth to also check the prospective jurors’ information in the victim/witness database. In any event, both parties are free to take reasonable steps, using public sources, to check other information provided on the jury questionnaire. We likewise discern no abuse of discretion by a trial judge in compelling the prosecution to check the prospective jurors’ information in the victim/witness database, as was done in the present case.
9. Though this is the test applied to a Sixth Amendment to the United States Constitution challenge to the fair cross section requirement, and the defendant contends that this is not the precise challenge he is making, “[u]nder art. 12 [of the Massachusetts Declaration of Rights] there is no distinction between the equal protection analysis ․ and the Sixth Amendment analysis,” and “art. 12 affords a defendant at least as much protection as the Sixth and the Fourteenth Amendment [to the United States Constitution].” Commonwealth v. Fryar, 425 Mass. 237, 241-242, 244 (1997).
10. Defense counsel stated on the record that each of the jurors who failed to make the requisite disclosure was African-American. Nobody disagreed.
11. The juror questionnaire at issue was not included in the record on appeal. Assuming without deciding that it is not uncommon for jurors to misinterpret the disclosure required by the questionnaire when it comes to jurors’ “experience with the law,” Commonwealth v. Carnes, 457 Mass. 812, 832 (2010), it might be wise for the jury commissioner to consider revising the questionnaire's language to expressly state that jurors must disclose all charges and convictions whether dismissed or sealed. Likewise, it may be prudent for judges to caution or remind jurors appearing in their venires of their obligation to disclose all charges and convictions including those sealed or dismissed. An example of such a cautionary instruction is present in Carnes, where the judge “emphasized [to the jurors] that some people do not answer the questions accurately, perhaps because they are embarrassed about a crime in which they were involved or may have forgotten a minor offense that occurred a long time ago․ He stated that every juror's record was checked on the computer. When he finished, the judge asked jurors to raise their hands if they had not ‘fully, accurately and completely answered the questions contained in the section ․ entitled, “Your experience with the law,’ ” so that they could have an opportunity to ‘add to the detail as ․ necessary.’ ․ [N]ineteen jurors raised their hands.” Id. at 832.
12. We deny the Commonwealth's motion to strike this portion of the defendant's brief.
13. Defense counsel, in her objection, specifically stated that she was “not blaming [the prosecutor].”
14. Juror no. 47 was excused under the very same circumstances. See Jackson, 486 Mass. at 773 (considering “similarities and differences between excluded jurors” [quotation and citation omitted]).
15. In relation to the defendant's possession of that weapon, the defendant was charged with and pleaded guilty to assault and battery by means of a dangerous weapon and carrying a firearm without a license. The gun, however, was never recovered in that case.
16. While the defendant argues that the judge abused her discretion in admitting this evidence because the SJC has cautioned against admitting firearm evidence “[w]here a weapon definitively could not have been used in the commission of the crime,” Commonwealth v. Barbosa, 463 Mass. 116, 122 (2012), that is not the case here. The revolver testified to by Washington was never recovered by the police, the photographs both depict a revolver, and the murder weapon in this case was, statistically speaking, most likely a revolver. Evidence of “[a] weapon that could have been used in the course of a crime is admissible, in the judge's discretion.” Id.
17. The defendant objected to this testimony and requested a limiting instruction.
18. On appeal, the defendant does not challenge the in-court identification made by Sergeant Detective Daley.
19. Specifically, the judge instructed the jury: “Members of the jury, you're not to construe the testimony just now of Sergeant Detective Daley as any identification of the defendant by Ms. Parker. It is offered merely for the limited purpose of helping you understand what steps the police took in this investigation and why they took them, and for no other reason.”
20. There is no real dispute that the photograph, taken from the Registry of Motor Vehicle database, was of the defendant.
21. It is unclear whether the rule against lay witness identifications is applicable to inanimate objects. See Wardsworth, 482 Mass. at 475 (“Making a determination of the identity of a person from a photograph or video image is an expression of an opinion” [emphasis added]). We, however, assume otherwise for the purpose of the defendant's claim.
22. The statements at issue here were not quite as egregious as those in Novo, 442 Mass. at 267-269.
23. Community Academy is a high school in the Jamaica Plain section of Boston.
24. The detective explained to the defendant that the victim went by “Mario.”
Was this helpful?