Com. v. Brown

• Decision Date: 16 July 2002
• Docket Number: No. 99-P-1970.,99-P-1970.
• Citation: 771 N.E.2d 214,55 Mass. App. Ct. 440
• Parties: COMMONWEALTH v. Felicia BROWN.
• Court: Appeals Court of Massachusetts

771 N.E.2d 214

55 Mass. App. Ct. 440

COMMONWEALTH v. Felicia BROWN.

No. 99-P-1970.

Appeals Court of Massachusetts, Suffolk.

Argued June 13, 2001.

Decided July 16, 2002.

Joseph Terranova, Boston, for the defendant.

Joseph M. Ditkoff, Assistant District Attorney, for the Commonwealth.

Present: ARMSTRONG, C.J., GRASSO, & BERRY, JJ.

ARMSTRONG, C.J.

The defendant, Felicia Brown, appeals from a conviction of perjury based on testimony she gave to a grand jury investigating the shooting of her cousin, Christopher Robinson. Robinson had been looking after Felicia's mother's house while the mother was away, and it was at the house that the shooting occurred in the early morning hours of August 16, 1996. Before he was taken to the hospital, Robinson told police that his assailant was Felicia's boyfriend, Melvin; he didn't know Melvin's last name. At the hospital he was intubated and remained in critical condition for an extended period, unable to supply further details.

On August 27, by arrangement with Felicia's mother (Felicia was then seventeen), police officers were able to interview Felicia, who told them that she and Melvin (his last name was Smith) had been at the apartment the evening of August 15 but had left sometime after midnight — she didn't know just when. They had returned to the apartment house just before the shooting. Melvin, Felicia said, had just parked their car, and he remained in it while she started to enter the house. At that moment gunshots rang out, and she, instead of investigating what had happened ran back to the car, jumped in, and Melvin drove away. From an apartment outside, she made a telephone call back to the house and was told by Romanis Charles, her stepfather, that Robinson had been shot. She put the police in touch with Melvin by calling his pager number, and when he called back he confirmed that he and Felicia had heard the gunshots on the street outside the apartment house and had driven away.

On August 30, based on Robinson's statement in the immediate aftermath of the shooting, the police arrested Melvin Smith. Robinson, although still intubated, was able by September 9 to point out Melvin Smith in a photo array as the person who shot him.¹ On September 11, Felicia appeared before a grand jury considering the evidence against Melvin Smith. Her testimony that day was the basis of the perjury indictment.

The testimony ran thus. On the evening of August 15, she and Melvin, having been at a "family day" function at the Bromley-Heath housing project, had returned to the house where she lived with her mother, her stepfather, and two siblings who were away at camp. The stepfather was in his third-floor bedroom. Felicia and Melvin were in her second-floor bedroom. Christopher Robinson, who had been asked by Felicia's mother to mind the house while she was visiting relatives in Alabama, was drunk and was upset about something — Felicia did not know what. He started breaking things. He smashed a vase or two, ripped a phone cord from the wall, and used a lock swinging from a chain he carried to smash a hole in the wall. Sometime, probably around midnight — Felicia could not pinpoint the time because she did not have a watch — she and Melvin left the house intending to call her mother to tell her what Chris was doing to her house. They drove off in Melvin's Honda when she realized she did not have her book of telephone numbers with her. They did not go directly back to the house, but instead drove to Jamaica Pond, where they sat for a time discussing what to do and what was wrong with Chris. Felicia was very upset. After about half an hour or so, they drove back to the house. She left the car and was starting to unlock the entrance door when shots rang out. Afraid, she ran back to Melvin in the car, got in, and they drove off. She wanted to get to a telephone to let her mother know what was going on. Melvin drove to his friend Tony's house near Warren Gardens, thinking he had a telephone. Because he did not, they went to the house of one of Tony's neighbors and called from there. She called her mother in Alabama. Her mother was not there; instead, Chris's sister answered. Felicia told her something was going on in the house, she was not sure what, but there were shots. Felicia did not tell her that Chris had been shot. When Felicia called back to the house, she learned from her stepfather that Chris had been shot and that an ambulance was coming to take him to the hospital. That was why she did not call the police.

The assistant district attorney questioned Felicia during her testimony. How did she get the number in Alabama? From her stepfather; she called him before she called Alabama. Had she and Melvin not driven past Melvin's own apartment to get to Warren Gardens? She did not know; she had been too upset to notice. Was Melvin's apartment not around the corner from her own house? Did Melvin have a telephone? Yes and yes. Did they not pass the branch police station to get to Warren Gardens? She did not know. What was Tony's last name? She did not know; she had been there only twice before. She did not know the name of the woman from whose apartment she made the phone call. If she were told that the call to the police station reporting the shooting came in at 3:54 A.M., would that refresh her recollection as to the time she and Melvin arrived back at the house? Maybe she and Melvin had stayed at Jamaica Pond longer than she thought. Why did Melvin stay in the car? Because she was only going inside briefly to get her mother's number and make the phone call. At four in the morning? No. Yes. She was not sure if it was four in the morning. Melvin and Chris had a good relationship; they never argued. She could not explain why Chris said Melvin shot him, if he really said that. The night after the shooting she stayed in a friend's house; thereafter, she went back to her own house. Melvin stayed with her for several nights because she was afraid. She had never seen Melvin with a gun. She asked her stepfather for her mother's number in Alabama because she knew they had talked earlier in the evening. She thought maybe the police had found where her mother was staying. Her mother was not staying with Chris's sister in Tuscaloosa but in Birmingham. She had tried to contact her mother first, but there was no number at which Felicia could have contacted her, so she called her stepfather and got the number. Felicia's testimony ended on that inconclusive note.

Despite Felicia's testimony — presumably on the basis of Robinson's statement to police the night of the shooting — the grand jury on September 26, 1996, returned indictments against Melvin, charging him with armed assault with intent to murder and assault and battery with a dangerous weapon. He was later charged also with illegal possession of a firearm, fourth offense, based on his possession of the revolver used in the shooting.

A second grand jury was convened on February 4, 1997, to consider Felicia's role in the events of the shooting based on evidence that had developed after her grand jury appearance on September 11, 1996. The grand jurors had before them a videotaped deposition of Robinson, taken at the hospital on October 15, 1996, in which he testified, using an alphabet board and gestures, that it was Melvin who had shot him in his bedroom the night of August 16, that Felicia had been in the room with Melvin when Melvin had shot him, and that Felicia and Melvin had fled together. The grand jury had the transcript of Felicia's testimony before the first grand jury. They also heard testimony from two investigating officers, including evidence from telephone records that the collect call from Felicia to Robinson's sister's house in Tuscaloosa was placed from a telephone in Melvin's friend Tony's apartment at 6:14 A.M., almost two and one-half hours after the shooting. They also heard evidence that Felicia had told Robinson's sister in that conversation that Robinson had been shot. A neighbor of the Browns had told police that she had been awake the night of the shooting nursing an infant and that, shortly after three shots rang out, she heard two car doors slam and a car hurry away.

The second grand jury returned two indictments against Felicia, one for being an accessory after the fact to Melvin's armed assault with intent to murder, and the second for perjury in her testimony before the first grand jury. The indictments were severed for trial, and Felicia, in a joint trial with Melvin, was acquitted on the accessory charge on November 16, 1998. (Melvin was convicted on the indictments against him, and his appeal is pending in this court.) After adverse rulings on two preliminary motions to dismiss the perjury indictment, Felicia was tried jury-waived on November 30 on the basis of a stipulation and the September 11, 1996, grand jury transcript.

1. Motion to dismiss based on misconduct. Summoned to appear before the first grand jury on September 11, 1996, Felicia, still a month shy of her eighteenth birthday, arrived with her mother and a school guidance counselor. While they waited to be called, the assistant district attorney assigned to the case tried to talk with Felicia, explaining that he wanted her to read the police report of her interview with the police on August 27 to see if it was accurate. The exercise never got started due to the guidance counselor's intervention: "Felicia is here because she has to talk to the grand jury.... [S]he does not have to talk to the D.A. Felicia, I don't think you should talk to him." The result, as the motion judge found, was that the assistant district attorney did not know until Felicia gave her testimony to the grand jury whether, under oath, she would stick to the story she gave to the police on August 27.

The motion to dismiss was based on a contrary premise: that the Commonwealth knew or had reason to know that she would lie to protect Melvin, and possibly that sh...