Com. v. Braley, SJC-09555

• Citation: 449 Mass. 316,867 N.E.2d 743
• Decision Date: 12 June 2007
• Docket Number: SJC-09555
• Parties: COMMONWEALTH v. Timothy L. BRALEY.
• Court: United States State Supreme Judicial Court of Massachusetts

867 N.E.2d 743

449 Mass. 316

COMMONWEALTH v. Timothy L. BRALEY.

SJC-09555

Supreme Judicial Court of Massachusetts, Plymouth.

Argued February 9, 2007.

Decided June 12, 2007.

Jeffrey L. Baler, Medfield, for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, & CORDY, JJ.

MARSHALL, C.J.

In July, 2004, a jury in the Superior Court found the defendant guilty of murder in the first degree on a theory of deliberate premeditation, G.L. c. 265, § 1, for his participation in a homicide that had occurred fifteen years earlier, in July, 1989. The defendant was arrested after his coventurer confessed; the two men had successfully concealed their involvement in the crime for more than eleven years.¹

On appeal, the defendant challenges certain evidentiary rulings by the trial judge; argues that the prosecutor made improper statements in his closing argument; claims that certain of the jury instructions were erroneous; and contends that trial counsel was ineffective for failing to seek a jury instruction on involuntary manslaughter. We affirm the conviction, and conclude that there is no basis to exercise our power under G.L. c. 278, § 33E, to reduce the conviction of murder in the first degree or to order a new trial.

1. Facts. The evidence presented at trial permitted the jury to find the following facts. The victim was shot to death in the early morning hours of July 3, 1989. An eyewitness, James Jones, testified that he and the victim were talking in the parking lot of a Brockton bakery when Jones noticed a blue pickup truck, in which there were two white men and a tan-colored dog, driving slowly down the street toward them. As the truck approached, Jones heard the passenger say to them, "Did you see ... ?" Jones then saw a rifle with a scope being pointed out of the passenger side window at them as the passenger said, "Well, how do you like this?" Jones testified that "something told me to get the hell out of here," and he and the victim began to run away from the truck. Four or five rifle shots followed, one of which struck the victim in the back, killing him. Other shots hit a wall and car windows near where Jones had attempted to take cover. After the truck departed, Jones ran to a convenience store and telephoned 911. The call came in at 2:54 A.M. on July 3.

At the time of the homicide the defendant was living in Whitman with his then-wife, Victoria, in an apartment above one occupied by Glen Alebord and Alebord's girl friend at the time, Heidi Eaton. According to Eaton, between approximately 11 P.M. and midnight on the evening of July 2, the defendant and Alebord, who had been drinking together, drove to Brockton in Alebord's pickup truck "to party," bringing with them two dogs, one black and one tan.² Alebord was the driver. Several hours later, Alebord and the defendant returned, awakening Eaton, who joined them in the kitchen.³ Alebord told Eaton that he and the defendant had become lost in Brockton and had stopped to ask a group of black men for directions. One of the men, he said, had "punched him in the face" and stolen seventy dollars from him. Alebord and the defendant had then driven around the block, while Alebord retrieved his .22 caliber rifle from behind the seat of the truck and passed it to the defendant.⁴ The two men drove back to "the group of men" and, as Alebord reported to Eaton, the defendant "shot into the crowd." The defendant was present in the kitchen while Alebord recounted these events to Eaton, but said nothing.

Alebord then told Eaton that he and the defendant were going to return to Brockton with Alebord's shotgun in order to "scare" the men. Alebord retrieved his shotgun from his bedroom, and he and the defendant then left the apartment in the defendant's car. The two men returned to the apartment approximately one hour later, telling Eaton that "where they had been earlier" was now surrounded by police.

Later that same day Alebord's brother showed Alebord a front-page story in the Brockton Enterprise, a local daily newspaper concerning the shooting. Eaton testified that after Alebord saw the article, he retrieved the rifle from his truck and disposed of it in a cranberry bog. That same day, Alebord fled to Maine with Eaton and their child. While in Maine, Alebord painted his truck black. Approximately ten days later, Alebord and Eaton returned to Whitman where they met with the defendant and Victoria to discuss the Brockton homicide. During the meeting, according to both Eaton and Victoria, the defendant repeatedly stated, "I can't believe I shot somebody." All four then agreed, in the words of Eaton, that the shooting "would not be discussed again so that nobody would find out." The defendant later moved away from Whitman. He was arrested in Florida in 2001.⁵

2. Admission of coventurer's statements. Relying on Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and Commonwealth v. Brown, 394 Mass. 510, 515, 476 N.E.2d 580 (1985), the defendant argues that the judge erred in admitting in evidence the statements Alebord made to Eaton in the kitchen of their apartment after the shooting.⁶ The judge held that the statements were admissible under two theories, either as being made in furtherance of an ongoing joint venture or as adoptive admissions. Commonwealth v. Brown, supra (joint venture hearsay exception to confrontation clause). Commonwealth v. Babbitt, 430 Mass. 700, 705, 723 N.E.2d 17 (2000) (adoptive admissions do not implicate confrontation clause).

As to the joint venture basis, the defendant argues that it was error to admit Alebord's statements in evidence because the Commonwealth had not first established by other nonhearsay evidence that there was a joint venture. The judge's ruling was correct.

Out-of-court statements by joint venturers are admissible against each other if the statements are made "both during the pendency of the cooperative effort and in furtherance of its goal." Commonwealth v. Colon-Cruz, 408 Mass. 533, 543, 562 N.E.2d 797 (1990), quoting Commonwealth v. White, 370 Mass. 703, 708-709, 352 N.E.2d 904 (1976). While a statement may be introduced under this exception to the hearsay rule "only if the existence of the joint criminal venture is shown by some other evidence," Commonwealth v. Colon-Cruz, supra, the Commonwealth can meet that burden by establishing an "adequate probability of the existence of a common venture, including participation by the given defendant." Commonwealth v. Bongarzone, 390 Mass. 326, 340, 455 N.E.2d 1183 (1983), quoting Commonwealth v. White, supra at 709 n. 7, 352 N.E.2d 904. An "adequate probability" exists when the Commonwealth satisfies a judge "by a preponderance of the evidence that a criminal joint venture took place between the declarant and the defendant." Commonwealth v. Cruz, 430 Mass. 838, 844, 724 N.E.2d 683 (2000). In determining whether an "adequate probability" exists, the evidence is to be viewed in its light most favorable to the Commonwealth, Commonwealth v. Cartagena, 32 Mass. App.Ct. 141, 144, 586 N.E.2d 43 (1992), and may be proved by circumstantial evidence. Commonwealth v. Soares, 384 Mass. 149, 159, 424 N.E.2d 221 (1981), and cases cited.

Here, Jones's eyewitness testimony placed two men in a truck cooperating in the shooting. The driver headed toward the victim slowly enough to allow the passenger to obtain the victim's attention orally, and then either the passenger or the driver fired the rifle at the victim through the open window on the passenger's side of the truck. There was also sufficient evidence to establish an adequate probability that this defendant in fact participated in the shooting. Alebord and the defendant fit the description of the shooters: two white men in a pickup truck in Brockton with a medium-sized tan dog on the evening in question, having in their possession a rifle of the same caliber and description (scope equipped) that was used to commit the murder. This, together with the defendant's repeated inculpatory statement during the Whitman meeting, "I can't believe I shot somebody," was sufficient to establish on the basis of nonhearsay evidence that the defendant participated in a joint venture with Alebord.

It was also proper for the judge to admit Alebord's statements in evidence as adoptive admissions of the defendant. The theory of adoptive admissions is straightforward: "Where a party is confronted with an accusatory statement which, under the circumstances, a reasonable person would challenge, and the party remains silent or responds equivocally, the accusation and the reply may be admissible on the theory that the party's response amounts to an admission of the truth of the accusation." Commonwealth v. MacKenzie, 413 Mass. 498, 506, 597 N.E.2d 1037 (1992). To be admissible, "it must be apparent that the party has heard and understood the statement, that he had an opportunity to respond, and that the context was one in which he would have been expected to respond to an accusation." Commonwealth v. Olszewski, 416 Mass. 707, 719, 625 N.E.2d 529 (1993).

There was ample evidence from which the jury could find that the defendant's actions met the requirements articulated in Commonwealth v. MacKenzie, supra, and Commonwealth v. Olszewski, supra. Eaton testified that Alebord, in the presence of the defendant, said that the defendant "shot into the crowd," and proceeded to provide further details of how the shooting transpired. This is precisely the type of "accusatory statement which, under the circumstances, a reasonable person would challenge." Commonwealth v. MacKenzie, supra at 506, 597 N.E.2d 1037.

There was also sufficient evidence to warrant a finding that the defendant "heard and understood" Alebord's statement. Commonwealth v. Olszewski, supra. Eaton testified that the kitchen was not large, and that Alebord and the defendant had been...