Com. v. Imbert

• Citation: 97 N.E.3d 335,479 Mass. 575
• Decision Date: 18 May 2018
• Docket Number: SJC–10222
• Parties: COMMONWEALTH v. Ludner IMBERT.
• Court: United States State Supreme Judicial Court of Massachusetts

479 Mass. 575

97 N.E.3d 335

COMMONWEALTH

v.Ludner IMBERT.

SJC–10222

Supreme Judicial Court of Massachusetts, Suffolk.

Argued January 9, 2018.

Decided May 18, 2018.

Robert S. Sinsheimer (Lisa A. Parlagreco also present) for the defendant.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Budd, Cypher, & Kafker, JJ.

BUDD, J.

In the early morning hours of April 3, 2004, Vaughn Skinner, Jr., was shot and killed. The defendant, Ludner Imbert, was identified as the shooter and convicted by a jury of murder in the first degree, as well as armed assault with intent to murder¹ and carrying a firearm without a license.

In this consolidated appeal, the defendant argues that several errors at trial require a reversal of his convictions and that the trial record is insufficient to permit adequate and effective appellate review. He also claims that his motion for a new trial based on the Commonwealth's failure to disclose exculpatory evidence was improperly denied. We affirm the defendant's convictions and the judge's order denying his motion for a new trial. After a review of the entire record, we also decline to reduce or set aside the defendant's convictions under G. L. c. 278, § 33E.

Background. We summarize the facts in the light most favorable to the Commonwealth, reserving certain details for discussion of specific issues.

Sometime after midnight on April 3, 2004, the victim and the defendant were at a nightclub in Revere. The defendant arrived with several friends, including Jeff Jean Charles, who drove the defendant's vehicle. While in the club, the victim and the defendant had a physical altercation: the victim stepped on Charles's foot, and the defendant in turn punched the victim in the face. The victim fell to the ground, and the fight spread to involve several other patrons. The manager closed the club, and security guards ushered patrons out to the parking lot.

The defendant left through the front door of the club; the victim, who was bleeding, left through a side door. A witness saw a man hand a firearm to another man matching the defendant's description. Shortly thereafter, shots were fired and the victim was seen falling to the ground. After the initial gunshots, Kehonia Vick, who knew the defendant, saw him stand over the victim and shoot him. After the shooting, another witness and friend of the defendant, Shane Clayton, saw the defendant with a snub-nosed revolver in his hand.

After the shooting, the defendant left the area on foot, leaving his vehicle behind. He was picked up by three young women who also had been at the club, one of whom was his girl friend. He told his girl friend that the fight started because someone had looked at one of his friends, and that "he had to do what he had to do." The defendant's cellular telephone records indicate that the cellular plan was terminated on the day after the murder.

Discussion. 1. Reconstructed transcript. Portions of the testimony of Vick and Clayton were not transcribed.² As a result, pursuant to Mass. R. A. P. 8 (e), as amended, 378 Mass. 932 (1979), the defendant moved to reconstruct the missing portion of the record "to the extent possible, on the basis of notes prepared by the trial judge and trial attorneys." Because the defendant failed to file a statement of the evidence as called for by Mass. R. A. P. 8 (c), as amended, 430 Mass. 1601 (1999), the judge reconstructed Vick's missing testimony based on the "extensive" notes he took at trial, resulting in five typewritten pages that he provided to each of the parties.³

The prosecutor agreed with the judge's reconstruction. However, defense counsel made handwritten annotations to the document indicating where he disagreed with the judge's recollection of the testimony. The judge rejected the defense's annotations as inaccurate and declined to insert objections made by the defense, as trial counsel was unable to recall their substance.⁴

The defendant argues that his due process and equal protection rights have been violated because a complete record is necessary for effective appellate review and the reconstructed trial transcript was not an adequate substitute. We disagree. The reconstruction was adequate and conforms to the procedure established in Commonwealth v. Harris, 376 Mass. 74, 78–80, 379 N.E.2d 1073 (1978).

It is well established that a defendant is entitled to a "record of sufficient completeness to permit proper consideration of his claims." Mayer v. Chicago, 404 U.S. 189, 194, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971), quoting Draper v. Washington, 372 U.S. 487, 499, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963). However, this does not "translate automatically into a complete verbatim transcript." Mayer, supra at 194, 92 S.Ct. 410.

In Harris, 376 Mass. at 75, 379 N.E.2d 1073, we addressed the issue of a trial transcript that is incomplete or missing by no fault of either party. In such a case, " ‘rough accommodations’ in the method in which an appeal is presented are constitutionally permissible." Id. at 77, 379 N.E.2d 1073, quoting Norvell v. Illinois, 373 U.S. 420, 424, 83 S.Ct. 1366, 10 L.Ed.2d 456 (1963). A new trial will not be granted "unless the trial proceedings cannot be reconstructed sufficiently to present the defendant's claims." Harris, supra at 78, 379 N.E.2d 1073. We held that

"alternative methods of reporting the trial proceedings, such as a statement of agreed facts, a bill of exceptions, or a narrative statement based on the judge's notes, are constitutionally adequate if they bring before the appellate court an account of the events sufficient to allow it to evaluate the defendant's contentions" (emphasis added).

Id. at 77, 379 N.E.2d 1073, and cases cited.

Here, the judge determined that the record could be reconstructed based on the notes he took of the testimony missing from the transcript. Although defense counsel contended that the defense made objections at trial that were not recorded, he could not recall their substance. Counsel suggested corrections and notes to the judge's proposed reconstruction, but the judge found them to be inaccurate based on the judge's own notes. Without any articulable claim of error, the defendant's argument fails.^{5 ,6} The defendant contends that Harris should be distinguished because it did not require plenary review per G. L. c. 278, § 33E. "[I]t is our duty to review the entire record pursuant to G. L. c. 278, § 33E." Commonwealth v. Britto, 433 Mass. 596, 615 n.11, 744 N.E.2d 1089 (2001). Where, as here, the reconstructed record is constitutionally permissible and the defendant does not present a specific dispute over its contents relating to any claim of error, the reconstructed record itself is what is subject to § 33E review. See Mass. R. A. P. 8 (e ) (describing method for correcting record).

2. Admission of Charles's statement. Clayton, who was in the vehicle that Charles entered after the shooting, testified that when Charles got into the vehicle, Charles declared, "Drive off, drive off, [the defendant] just popped that dude!" The judge admitted the statement as an excited utterance. The defendant claims that the statement was inadmissible hearsay and violated his right to confrontation. Because the defendant objected to the statement at trial, we review for prejudicial error. See Commonwealth v. Gomes, 475 Mass. 775, 787, 61 N.E.3d 441 (2016) ; Commonwealth v. Mulgrave, 472 Mass. 170, 176, 33 N.E.3d 440 (2015).

The party seeking to admit a statement as an excited utterance must show that "[1] there [was] an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer, and [2] the declarant's statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought." Commonwealth v. Barbosa, 477 Mass. 658, 672, 81 N.E.3d 293 (2017), quoting Mass. G. Evid. § 803(2) (2017). The defendant focuses on the second prong,⁷ arguing that the time that lapsed between the shooting and Charles's statement gave Charles time for reflective thought and an opportunity to fabricate his statement. We disagree.

The evidence presented to the jury was that Charles ran to the vehicle soon after the gunshots. Further, the jury heard that when Charles made the statement he was "anxious," "breathing heavy," and "looking [to] both sides." See Mulgrave, 472 Mass. at 177, 33 N.E.3d 440(second prong considers "circumstances of the statement, including ... the tone and manner of the declarant"). Compare Commonwealth v. Irene, 462 Mass. 600, 607, 970 N.E.2d 291, cert. denied, 568 U.S. 968, 133 S.Ct. 487, 184 L.Ed.2d 306 (2012) (utterance admissible where it occurred immediately after traumatic event); Commonwealth v. Linton, 456 Mass. 534, 549, 924 N.E.2d 722 (2010) (utterance admissible where it occurred at least twenty minutes after traumatic event); Commonwealth v. Grant, 418 Mass. 76, 81–82, 634 N.E.2d 565 (1994) (utterance admissible where it occurred sixty minutes after traumatic event), with Commonwealth v. DiMonte, 427 Mass. 233, 239–240, 692 N.E.2d 45 (1998) (utterance inadmissible where it occurred at least eight and one-half hours after traumatic event). Given the short time between the shooting and Charles's statement, the statement clearly qualifies as an excited utterance.⁸

"[S]tatements admissible as spontaneous utterances must also satisfy the confrontation clause of the Sixth Amendment to the United States Constitution, [which] bars the admission of testimonial out-of-court statements by a witness who does not appear at trial unless the witness is unavailable to testify and the defendant had an earlier opportunity for cross-examination" (quotations and citation omitted). Mulgrave, 472 Mass. at 180, 33 N.E.3d 440. The defendant argues that the admission of Charles's statement violated the confrontation clause, as the statement was testimonial and the defendant had no opportunity to cross-examine the declarant. Upon review, we conclude...