Com. v. Gunter

• Decision Date: 14 April 1998
• Citation: 427 Mass. 259,692 N.E.2d 515
• Parties: COMMONWEALTH v. Paul GUNTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 515

692 N.E.2d 515

427 Mass. 259

COMMONWEALTH v. Paul GUNTER.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Nov. 6, 1997.

Decided April 14, 1998.

Esther J. Horwich, Boston (Jennifer Appleyard, with her), for defendant.

Eric Neyman, Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae:

Carol A. Donovan, Boston, for Committee for Public Counsel Services.

Paul F. Walsh, Jr., District Attorney, and Elspeth B. Cypher, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, MARSHALL and IRELAND, JJ.

MARSHALL, Justice.

The defendant, Paul Gunter, was convicted of murder in the first degree on a theory of felony-murder, G.L. c. 265, § 1, armed assault in a dwelling with intent to commit a felony, G.L. c. 265, § 18A, and illegal possession of a firearm, G.L. c. 269, § 10(a ). The jury were warranted in finding that Gunter was a joint venturer with two other individuals, based on his role in transporting the others to and from the murder scene. Gunter received a sentence of life in prison for the murder, a concurrent life sentence for the armed assault in a dwelling, and a concurrent term of from four to five years on the firearms offense. Gunter advances a number of claimed errors in evidentiary rulings, in jury instructions, and in a comment in the prosecutor's closing argument. Gunter also argues that his conviction on the charge of armed assault in a dwelling is duplicative of his first degree felony-murder conviction. Finally, Gunter asks that we exercise our extraordinary power under G.L. c. 278, § 33E, to reduce his conviction and direct an entry of a lesser degree of guilt or order a new trial. Pursuant to our review under G.L. c. 278, § 33E, we requested that the parties brief an additional issue that the defendant had not raised--whether the underlying felony supporting Gunter's felony-murder conviction was sufficiently independent of the murder itself to justify the murder conviction. ¹ We affirm Gunter's conviction of felony-murder and illegal possession of a firearm. The conviction of armed assault in a dwelling must be vacated.

1. The Commonwealth presented evidence that Gunter and several other individuals were involved in selling drugs out of an apartment in the Dorchester section of Boston. Gunter's role included paying the apartment residents, Rosalie Mitchell and Derek Sealy, a "rental fee" in cash or in drugs for the use of the apartment. On March 21, 1991, three men entered the apartment and stole cocaine from one of the drug dealers affiliated with the operation. Gunter, Corey "Floyd" Selby, ² Mark Edwards, and Larricia McConnico, a woman who had brought the thieves to the apartment on an earlier night and knew where they might be found, went looking for the thieves. Gunter drove the three to another apartment in Dorchester. Selby and Edwards carried loaded guns. Gunter remained in the car while the others went into that apartment. Admitted to the apartment, Selby and Edwards pushed Jack Berry, Jr., ³ down the hall toward the kitchen. Berry was visiting Anthony Madden and Annette Gilbert, the apartment residents. While Edwards held Berry, Madden, Gilbert, and Gwendolyn McKenzie, Gilbert's friend, in the kitchen at gunpoint, Selby searched the apartment and the other two floors of the residence. Selby failed to find either the thieves or the stolen drugs. Edwards and McConnico, followed by Selby, then left, but, as Berry was closing the door behind them, Selby pushed the door back open, said "give this message to [the thieves]," and fatally shot Berry. They ran back to the vehicle where Gunter was waiting. Edwards testified ⁴ that, when he told Gunter that Selby had shot someone, Gunter said, words to the effect that "nobody will rob us no more."

Sometime later, on September 15, 1992, based on information from a police interrogation of Edwards implicating Gunter, the police interrogated Gunter. ⁵ Gunter admitted that he had driven with the others to and from the murder scene, that he knew Selby and Edwards were armed, and that he knew Selby's intention was to kill or hurt the thieves. Gunter claimed that he had participated involuntarily because he was threatened and ordered to do so, and that he had told Edwards and Selby as they got out of the car that he did not want anyone to get hurt.

2. The defendant moved, in limine, to exclude evidence that he was involved in drug dealing. The judge denied his motion. Following the prosecutor's opening remarks, the judge gave a limiting instruction to the jury to the effect that, despite the evidence that they would hear of Gunter's drug dealing, he was not charged with any drug-related crime and that the jurors should consider only Gunter's guilt or innocence on the indictment in the case. At the beginning of the second day of trial, Gunter moved for a mistrial, claiming that not only was evidence on his drug dealing admitted, but that it constituted the bulk of the testimony during the first day of trial and was therefore overwhelmingly prejudicial. The judge denied his motion for a mistrial, as well. On appeal, Gunter claims that evidence of his involvement in the drug business was not probative of any issue at trial or, alternatively, its prejudice outweighed its probative value.

Although evidence of a defendant's prior bad acts is inadmissible to prove bad character or a defendant's propensity to commit the crime with which he is charged, such evidence may be relevant for other purposes. See Commonwealth v. Marrero, 427 Mass. 65, 691 N.E.2d 918 (1998); Commonwealth v Fordham, 417 Mass. 10, 22, 627 N.E.2d 901 (1994); Commonwealth v. Otsuki, 411 Mass. 218, 236, 581 N.E.2d 999 (1991). It may be admissible for the purposes of showing motive, intent, or knowledge. P.J. Liacos, Massachusetts Evidence § 4.4.6, at 155 (6th ed. 1994 & Supp.1995). Evidence of prior bad acts also may be admitted if it is "inextricably intertwined with the description of events on the [day] of the killing." Commonwealth v. Bradshaw, 385 Mass. 244, 269, 431 N.E.2d 880 (1982), quoting Commonwealth v. Hoffer, 375 Mass. 369, 373, 377 N.E.2d 685 (1978) "Evidence that is otherwise relevant to the offense charged is not rendered inadmissible simply because it tends to prove the commission of other crimes." Commonwealth v. Jackson, 384 Mass. 572, 577, 428 N.E.2d 289 (1981).

On review, whether the prejudice likely to be generated by such evidence outweighs its probative value is a matter on which the opinion of the trial judge will be accepted except for palpable error. See Commonwealth v. Young, 382 Mass. 448, 463, 416 N.E.2d 944 (1981). We have affirmed that evidence of drug dealing was admissible as probative of a defendant's motive to murder, see id., and of a defendant's knowledge and intent as a person charged with participation in a joint venture. See Commonwealth v. Valentin, 420 Mass. 263, 270, 649 N.E.2d 1079 (1995). We see little difference between the evidence presented in those cases and this one. The judge committed no error in admitting the evidence.

Gunter's motion for a mistrial emphasized that the amount of such evidence was prejudicial. At the opening of the prosecution case, after some brief testimony from the victim's brother, the next two witnesses were Mitchell and Sealy, the residents of the apartment where the drugs had been sold. For the remainder of the first day of trial, they testified almost exclusively about the drug operation, including Gunter's role. ⁶ We conclude that any potential prejudice on the part of the jury was controlled by the judge's favorable rulings on defense counsel's objections when the prosecutor attempted to stray too far from that drug evidence necessary to present its case, as well as the judge's clear and forceful limiting instruction before any witnesses testified. No further instructions were requested by Gunter, nor did he object to the judge's failure to give further instructions. " 'Jurors are expected to follow instructions to disregard matters withdrawn from their consideration.' ... The judge's instructions were clear, and we must presume the jury followed them." Commonwealth v. Helfant, 398 Mass. 214, 228, 496 N.E.2d 433 (1986), quoting Commonwealth v. Cameron, 385 Mass. 660, 668, 433 N.E.2d 878 (1982). The judge did not abuse his discretion in denying the motion for a mistrial. Commonwealth v. Maldonado, 389 Mass. 626, 629, 451 N.E.2d 1146 (1983).

3. Gunter appeals from the judge's admission, over objection, of a police officer's testimony concerning his out-of-court conversation with Edwards, claiming that Edwards's statement to the officer was hearsay. Edwards also testified at the trial. The police officer was allowed to testify that Edwards said that Gunter "was the individual who drove him to the location where the man was shot, waited for them, and then drove them back." The Commonwealth offered this testimony for two purposes: that Edwards, on first being interrogated, identified Gunter as the driver; and that Edwards made a prior consistent statement that rebutted Gunter's defense counsel's suggestion in cross-examination that at trial Edwards's testimony about Gunter was recently fabricated in exchange for the prosecutor's reduction in Edwards's recommended sentence.

We have long held that the testimony of a witness concerning an extrajudicial identification by an identifying witness is admissible to corroborate an in-court identification. Commonwealth v. Repoza, 382 Mass. 119, 129-130, 414 N.E.2d 591 (1980), S.C., 400 Mass. 516, 510 N.E.2d 755, cert. denied, 484 U.S. 935, 108 S.Ct. 311, 98 L.Ed.2d 270 (1987); Commonwealth v. Sheeran, 370 Mass. 82, 87, 345 N.E.2d 362 (1976). More recently, we held that the testimony of a witness, in this case the officer, concerning an extrajudicial identification by an identifying witness, here Edwards, consistent with the testimony of the...