Com. v. Hamilton

• Decision Date: 05 November 1997
• Citation: 426 Mass. 67,686 N.E.2d 975
• Parties: COMMONWEALTH v. Howard HAMILTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 975

686 N.E.2d 975

426 Mass. 67

COMMONWEALTH v. Howard HAMILTON.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Oct. 7, 1997.

Decided Nov. 5, 1997.

Charles W. Rankin, (J.W. Carney, Jr. and Andrew D'Angelo, with him), Boston, for defendant.

Lisa M. Scalcione, Assistant District Attorney, for the Commonwealth.

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

GREANEY, Justice.

A jury found the defendant, Howard Hamilton, and a codefendant, Richard D. Brooks (who were tried together as joint venturers) guilty of murder in the first degree by reason of deliberate premeditation. Both were also convicted of unlawfully carrying a firearm, of assault and battery by means of a dangerous weapon, and of armed assault with intent to murder. ¹ Represented by new counsel on appeal, the defendant, Hamilton, raises several issues. His two principal issues concern the Commonwealth's late disclosure of fingerprint evidence and a limitation of cross-examination of an important Commonwealth witness for bias. We conclude that these issues do not provide a basis for a new trial. The remaining issues concern statements made in closing arguments by the codefendant's trial counsel, and in the opening and closing remarks of the prosecutor, and assertions of error in the judge's instructions to the jury. These issues furnish no basis for a new trial. We direct the entry of a judgment for the defendant on the carrying charge, see note 1, supra. There is no reason to exercise our authority pursuant to G.L. c. 278, § 33E, and, accordingly, we affirm the defendant's remaining convictions.

The facts that could have been found by the jury are set forth in detail in the opinion deciding the appeal of the codefendant, Commonwealth v. Brooks, 422 Mass. 574, 575-576, 664 N.E.2d 801 (1996). As background to this appeal, we set forth the following. On the night of June 2, 1990, and into the early morning hours of June 3, 1990, a group of five young men were gathered on the porch of a house at 7 Mount Everett Street in the Dorchester section of Boston. They had walked to a nearby Chinese restaurant and bought food. On the way back from the restaurant, a small red automobile with the codefendant Brooks in the passenger seat slowly passed the group twice. As the men socialized on the porch, the same red automobile passed the house. Shortly thereafter, three men wearing hooded sweatshirts and identified as the codefendant Brooks, the defendant, and one Michael Osborne, approached the house from the direction the red automobile had taken and stood on the sidewalk in front of the porch. Ryan Moore was on the porch and saw the defendant point a gun and begin shooting toward the porch. In the gunfire that followed, ² the victim was killed and two other men were wounded. After the shooting, a witness who lived near 7 Mount Everett Street saw three men rush to get into a small red automobile that had the engine running; one of the men wearing a hooded sweatshirt yelled, "Hurry up, let's get the heck out." The red automobile, which had been stolen, was later recovered by the police. Two fingerprints found on the automobile were later identified as the defendant's. Osborne's fingerprints were also found on the automobile. ³

1. Prior to trial, the defendant's motion for discovery was allowed which requested, among other matters, production of the results of any scientific tests that might be introduced by the Commonwealth in evidence. On the day scheduled for trial, the prosecutor told the defendant's trial counsel that she had just received a report from the identification unit of the Boston police department. The report indicated that two of the fingerprints found on the red automobile had been identified as the defendant's. The defendant's trial counsel moved to exclude the fingerprint evidence because of its last-minute production, or for a two-week continuance, so that the evidence could be assessed for reliability and a new trial strategy considered. The defendant's trial counsel explained that she had prepared a defense of mistaken identification; that, in her opinion, the Commonwealth had but a single witness (Ryan Moore) who would identify the defendant; that no corroboration existed for Moore's identification; and, if the fingerprint evidence was admitted, she would need time to consider presenting a "diminished capacity defense."

In response to this argument, the judge granted a two-day continuance, and went on to rule that he would approve funds allowing the defendant to retain a fingerprint expert to examine the reliability of the evidence. The judge then restricted the prosecutor from mentioning the evidence in her opening statement. The judge also advised the defendant's trial counsel that another continuance would be granted during the trial if any fingerprint expert retained by the defendant needed more time to complete examination of the evidence. On this record, the defendant argues that the judge's denial of the request for exclusion of the fingerprint evidence or a two-week continuance constituted an abuse of discretion which requires a new trial. We disagree.

As the defendant correctly recognizes, the judge possessed considerable discretion in dealing with the problem created by the prosecution's late disclosure of the fingerprint evidence. See Mass. R.Crim. P. 14(c)(1) and (2), 378 Mass. 874 (1979); Commonwealth v. Baldwin, 385 Mass. 165, 177, 431 N.E.2d 194 (1982). When the ground for a continuance or exclusion of evidence involves late disclosure by the prosecution, without any showing of bad faith on its part (as is the case here), a defendant is required to show material prejudice from the disclosure before a new trial can be considered. See Commonwealth v. Donovan, 395 Mass. 20, 24, 478 N.E.2d 727 (1985); Commonwealth v. Costello, 392 Mass. 393, 398, 467 N.E.2d 811 (1984); Commonwealth v. Cundriff, 382 Mass. 137, 149-150, 415 N.E.2d 172 (1980), cert. denied, 451 U.S. 973, 101 S.Ct. 2054, 68 L.Ed.2d 353 (1981).

No showing of such prejudice has been made by the defendant. The judge granted time as well as the means for the defendant's trial counsel to evaluate thoroughly the fingerprint evidence. He also restrained the prosecutor from mentioning the evidence in her opening statement, and stated that an additional continuance could be granted during the trial if the defendant's trial counsel needed more time to deal effectively with the evidence. These are among the types of remedies that have been found sufficient to negate any prejudicial effect from delayed disclosure of evidence. See Commonwealth v. Costello, supra at 399-400, 467 N.E.2d 811 (no prejudice from late disclosure of inculpatory evidence where judge suspended trial for one day so expert could examine bloodstain); Commonwealth v. Cundriff, supra at 150, 415 N.E.2d 172 (no prejudice from late disclosure of inculpatory evidence where judge continued case for one day, and defendant did not request more time for investigation); Commonwealth v. Fossa, 40 Mass.App.Ct. 563, 569, 666 N.E.2d 158 (1996) ("a brief continuance for investigation may sufficiently render a clear Commonwealth discovery violation nonprejudicial"). It is an indication that prejudice was negated when the defendant's trial counsel stated that she was ready for trial after the two-day continuance and did not seek any further delay when the fingerprint evidence was offered by the prosecution on the fifth day of the trial.

The defendant's argument that material prejudice occurred is not improved by his contention about a "diminished capacity" defense. ⁴ The defendant's trial counsel offered no factual basis at any time before or during the trial to support an issue as to the defendant's mental impairment. The claim now made on appeal, that such an issue might properly have been raised, is speculative. ⁵ From all that appears in this record, the defendant decided to accept the fingerprint evidence as reliable and to proceed with his planned defense that Ryan Moore was not credible and had misidentified him.

2. As has been mentioned, Ryan Moore identified the defendant, the codefendant Brooks, and Michael Osborne as the three men who stood on the sidewalk, and specifically identified the defendant as having pointed a gun and fired shots at the men on the porch. Although one other witness besides Moore also identified Brooks as one of the men at the scene, Moore was the only witness to identify the defendant. Trial counsel for the codefendant Brooks sought to show bias in Moore's testimony by bringing to the jury's attention during cross-examination the fact that, after the incident, but before the commencement of the trial, Moore had been charged with possession of a class B controlled substance with intent to distribute. At the prosecutor's request, the judge held a side bar conference. The prosecutor, referring to Commonwealth v. Haywood, 377 Mass. 755, 758-763, 388 N.E.2d 648 (1979), argued to the judge that Moore "has previously given numerous statements prior to [the controlled substances] complaint ... and ... there would be absolutely no reason for him at this juncture to expect that he would receive any promise, reward or inducement, and, in fact, he has been told there is none." The judge ruled that trial counsel for Brooks could only ask Moore whether he had received any promises, rewards, or inducements for his testimony without any reference to the pending criminal charge. Trial counsel for Brooks objected to the ruling, but did not pursue the issue any further by inquiring of Moore in the manner approved by the judge. The Commonwealth agrees that, although the issue was raised by trial counsel for Brooks, it has been preserved on appeal for the defendant. The defendant argues that the judge's ruling violated his right to confront an important witness and, consequently, rendered his trial unfair.

The general rule is clear. A "defend...