Com. v. Jackson
| Decision Date | 10 December 1998 |
| Docket Number | No. SJC-06853,SJC-06853 |
| Parties | COMMONWEALTH v. David JACKSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Esther J. Horwich, Boston, for defendant.
Paul B. Linn, Assistant District Attorney, for the Commonwealth.
Before: WILKINS, C.J., and ABRAMS, LYNCH, FRIED and Marshall, JJ.
The defendant, David Jackson, was convicted of murder in the first degree, based on both deliberate premeditation and felony-murder, as well as armed robbery and burglary. We affirm the convictions and decline to exercise our power under G.L. c. 278, § 33E, to order a new trial or reduce the murder verdict. We also affirm the denial of the defendant's motion for a new trial.
On the evening of April 16, 1990, Steven Olbinsky received a call from his friend, Mark James. James asked Olbinsky whether he knew where to buy drugs. Olbinsky responded that he knew of a place, and James, along with two others (the defendant and an unidentified man), came to pick Olbinsky up at his home.
Olbinsky directed them to a location at which he had previously purchased drugs. The group arrived some time after 9 P.M., and Olbinsky, James, and the defendant got out of the car. Olbinsky then observed the defendant produce and load a shotgun. On seeing this, Olbinsky said to the defendant, Frightened, Olbinsky told the others that his drug source was in apartment 3-A, although the apartment from which he had previously purchased drugs was apartment 1-A. Olbinsky then left the scene and, as he was leaving, he observed the defendant and James prying open the front door of the building with a screwdriver.
At approximately 11 P.M., two black men broke into apartment 3-A. One was wearing a long dark jacket and a stocking mask and was carrying a sawed-off shotgun; the other was wearing glasses and carrying a screwdriver. The men demanded drugs and money and, when these were not provided, stole a tape recorder and led one of the apartment's occupants, Ferdy Herrara, out of the apartment at gunpoint.
Herrara indicated to the intruders that the apartment they were seeking was downstairs and, moments later, the two men kicked open the door to apartment 1-A, which was occupied by Franio Lara and his son, Arcadio. Within ten or fifteen seconds of their arrival, the gunman fired the shotgun at Arcadio, killing him.
Later that evening the defendant and James arrived at the apartment of Janie Vick and Robert Lee Perkins, Jr. The defendant wore a long jacket and was carrying a shotgun, money, cocaine, and jewelry. The defendant and James accompanied Perkins into his bedroom and told him that someone named Steve had directed them to an apartment building and that once there they had committed a robbery. The defendant added that, as he and James were preparing to exit, the shotgun accidentally went off, injuring one of the occupants.
The defendant claims that the prosecutor impermissibly bolstered the credibility of a critical witness, Steven Olbinsky, by misrepresenting to the jury that no deal had been made in exchange for Olbinsky's testimony. The defendant's argument is actually two separate claims regarding means by which the prosecutor allegedly bolstered Olbinsky's credibility. The first claim is that the prosecutor stated that no inducement had been offered for Olbinsky's testimony and that this was false. The second is that the prosecutor concealed the fact that the Commonwealth did not intend to prosecute Olbinsky. As to the first claim, there is not a sufficient evidentiary basis to find that the prosecutor's statement was false. The second claim, even if true, would not have served to bolster the witness's credibility.
The defendant's claim that the prosecutor misled the jury was explicitly rejected by the trial judge, who found that, despite the fact that Olbinsky's case was subsequently dismissed, "the prosecutor did not mislead the jury in informing them that the Commonwealth had made no deal with Olbinsky because the statement was true."
The defendant points out that there had been numerous continuances of Olbinsky's case after his motion to dismiss had been filed, that he made bail and was not in custody, and that the Commonwealth ultimately did not oppose his motion to dismiss nor appeal from the dismissal. This is insufficient to overturn the judge's finding that the Commonwealth did not offer the defendant any inducement for his testimony. An "inducement" has been defined as "any statement which 'reasonably implies that the government ... is likely to confer or withhold future advantages ... depending on [the] witness'[s] cooperation.' " Commonwealth v. Schand, 420 Mass. 783, 792, 653 N.E.2d 566 (1995), quoting United States v. Buendo, 701 F.Supp. 937, 942 (D.Mass.1988), aff'd. sub nom. United States v. Penta, 923 F.2d 839, 1990 WL 254030 (1st Cir.1990). Olbinsky explicitly denied that any such statement was ever made to him. The charges against Olbinsky were not dropped by the prosecutor but were ruled, by a judge, to be insufficiently supported by the evidence as a matter of law. Further, there was evidence that Olbinsky had given consistent accounts of the incident since July, 1990, nearly two years before he was even indicted. The defendant's implied contention that some undisclosed inducement existed which, if exposed to the jury, would render Olbinsky's testimony less credible, is nothing but surmise.
Further, to the extent that Olbinsky had the sword of Damocles hanging over him in the form of a murder charge, and thus had incentive to please the prosecution in the hopes of establishing good will and securing leniency even absent any explicit agreement, this was argued by defense counsel at trial. Not only did counsel for the defendant bring out, during cross-examination, that Olbinsky was under indictment for this murder, but he came back to this theme in closing, stating that Olbinsky was testifying to "save his own neck" and that he "would do anything, absolutely anything to please the government and convict [the defendant] because he doesn't want the punishment." In addition, the judge instructed the jury to consider whether any witness had a motive to testify in assessing his credibility.
As to the defendant's second claim, that the prosecutor concealed from the jury the fact that the Commonwealth did not intend to prosecute Olbinsky, that concealment, even if proved, would not have served to bolster the witness's testimony. As an initial matter, it was not even claimed that Olbinsky knew this fact--if it was a fact. Moreover, if he was aware of this, it would have provided him no incentive to lie on the Commonwealth's behalf. It was the very theme of "sav[ing] his own neck" that counsel for the defendant attempted to use to undermine Olbinsky's credibility at trial. Had the prosecutor revealed that Olbinsky was no longer in danger of being tried for this crime and that he knew it, that would have done far more for Olbinsky's credibility than did the silence to which the defendant now objects.
The defendant argues that the judge abused his discretion by permitting the Commonwealth to present evidence of the defendant's prior criminal activity as evidence of the defendant's modus operandi. The judge admitted the testimony of the prior crime, to which the defendant had already pled guilty, based on the temporal and physical proximity of the two crimes (they occurred three days and two blocks apart) and the fact that each assailant was described as a black man, armed with a sawed-off shotgun, wearing a black coat, who broke down the victims' apartment doors. Further, the fact that the perpetrator in this instance first kicked in the door to another apartment and then sought the "right" one indicates that there was actually a considered mode of operation. Thus the judge was correct to rule that the crimes in question were sufficiently similar to each other and distinct in nature to be admitted as evidence of modus operandi. See Commonwealth v. Marrero, 427 Mass. 65, 71, 691 N.E.2d 918 (1998); Commonwealth v. Jackson, 417 Mass. 830, 841, 633 N.E.2d 1031 (1994); Commonwealth v. Brusgulis, 406 Mass. 501, 506, 548 N.E.2d 1234 (1990).
There were also sufficient indicia of reliability to justify admitting the evidence of the prior bad act. The defendant contends that the identification of him by the victim of the previous crime was suspect and that his plea of guilty to the prior crime merely constitutes an admission to a criminal charge, not to a specific set of facts. Thus, the defendant claims, there is no reliable evidence that he committed any particular act which could form the basis of modus operandi evidence. Whatever question was left by the guilty plea as to the precise factual circumstances of the crime was resolved, however, by the witness's description of the crime. And whatever question remained as to whether the defendant was the perpetrator of the crime as described was resolved by the guilty plea.
Not only was the evidence properly admitted, but the defendant concedes that the judge gave a proper limiting instruction at the conclusion of the trial. Although the defendant did not request an immediate limiting instruction, he nonetheless states that the absence of such an instruction was error. No such immediate instruction was necessary, and there was no substantial risk of a miscarriage of justice.
The defendant argues that the prosecutor, in his closing argument, suggested facts not in evidence, attempted to inflame the jury, shifted the burden of proof to the defendant, improperly attacked defense counsel, and vouched for the credibility of witnesses. This, the defendant argues, deprived him of his right to a fair trial.
In his closing argument, the prosecutor pointed to the similarities between the method used by the perpetrator in this case and the method...
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