Com. v. Kent K.

• Citation: 696 N.E.2d 511,427 Mass. 754
• Parties: COMMONWEALTH v. KENT K., a juvenile.
• Decision Date: 07 July 1998
• Court: United States State Supreme Judicial Court of Massachusetts

Page 511

696 N.E.2d 511

427 Mass. 754

COMMONWEALTH v. KENT K., a juvenile.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued May 6, 1998.

Decided July 7, 1998.

Stephen B. Hrones, Boston, for the juvenile.

Eric Neyman, Assistant District Attorney (Amanda Lovell and Robert Tochka, Assistant District Attorneys, with him), for the Commonwealth.

Before WILKINS, C.J., and LYNCH, FRIED, MARSHALL and IRELAND, JJ.

FRIED, Justice.

After a bench trial in the Boston Division of the Juvenile Court Department at which the juvenile was found delinquent by reason of murder in the first degree, assault and battery by means of a dangerous weapon, armed assault with intent to murder, and possession of a firearm, he claimed an appeal. G.L. c. 119, § 56, as amended through St.1992, c. 379, §§ 17-19. At a jury session in the Juvenile Court the juvenile was found delinquent of these charges. The trial judge committed him to the Department of Youth Services until he reaches twenty-one years of age, at such time to be transferred to the Department of Correction to complete his sentence of from eighteen to twenty years. G.L. c. 119, § 72, as amended by St.1992, c. 379, § 16. After the denial of the juvenile's motion for a new trial, his appeal was entered in this court. We affirm.

I

On October 31, 1994, the nine year old victim was shot as he played with his siblings and friends in front of a neighbor's home in the Roxbury section of Boston. As they stood in the yard, the group, which included two supervising adults, saw two individuals walking quickly toward them, both wearing black clothes with dark hoods. Several witnesses described one of the two men, the juvenile, as light skinned, with freckles and a short haircut. As the group watched, the two men produced firearms and began firing over a fence into the yard. Witnesses testified that the juvenile put his weapon over the fence, pushed back his hood, and fired repeatedly. Approximately sixteen to seventeen shots were fired from the two weapons. The victim and an adult were hit. After the shooting, the two assailants ran to a waiting vehicle which drove away. The victim later died in surgery as a result of a gunshot wound to his left chest.

Over the next several hours, various individuals identified the shooters to the police. After being taken to a hospital with the victim, the victim's mother, who was inside a neighboring house at the time of the shooting, stated that she saw the juvenile through a window as he approached the yard and had an unobstructed view of his body and face. She described him as approximately six feet tall, between sixteen and seventeen years of age, with freshly cut hair, light skin, and freckles. At the police station, a family friend who was with the children in the yard during the shooting examined six books, each containing 300 photographs of young black males. He identified the juvenile from a two year old photograph in the sixth book, although he said that the juvenile's face looked more slender in the photograph than he recalled. He then identified the juvenile again from a newer photograph placed in an array of eight photographs. The police then showed the same array to the victim's mother at the hospital. She immediately identified the juvenile from the array. The police then showed the array to the victim's brother, but he was unable to make an identification. Later, the victim's mother, brother, and the family friend all separately identified the juvenile in a lineup.

The juvenile exercised his right to a de novo trial by jury in November, 1996. The juvenile, his mother, and his grandmother testified at trial that the juvenile was at home on the night of the murder. The juvenile's mother and grandmother testified that their apartment had a heavy steel door with dead bolt locks, and that they would have heard the juvenile if he had left the home. The juvenile alleged that on the day following the shooting, another individual confessed to him to having done the killing. On November 27, 1996, the jury found the juvenile delinquent of first degree murder based on deliberate premeditation and extreme atrocity or cruelty. The juvenile was also found delinquent of all other charges, and was sentenced to an eighteen to twenty year term for the murder. The juvenile's motion for a new trial was denied, and the appeal was docketed in this court.

II

A

The juvenile argues that various errors infected his trial. First, he claims that he was irretrievably prejudiced by the admission at trial of testimony by a police officer indicating that the juvenile had been arrested previously for an unrelated offense. Evidence of prior bad acts may not be admitted to prove bad character or criminal propensity, but may be offered for other relevant purposes. See Commonwealth v. Rodriguez, 425 Mass. 361, 370, 682 N.E.2d 591 (1997), and cases cited. Weighing probative value against possible prejudice lies in the judge's discretion, and we do not disturb the decision made unless "palpably wrong." Id.

On direct examination by the prosecutor, Detective Darrin P. Greeley described the origin of the photographs used in the books shown to the victim's mother:

Q.: "The persons that are in those books, are those persons from Boston and from outside of Boston?"

A.: "The persons who have ever been arrested within the city of Boston from different suburbs. They're from the general geographic area around Boston, or anyone in the state actually, anybody's who's just been arrested in Boston."

The judge then questioned the detective about his answer, and the juvenile moved for a mistrial. After a brief sidebar conference on the matter, the judge denied the juvenile's motion but gave a forceful curative instruction to the jury. ¹

The judge did not abuse his discretion in denying the juvenile's motion. The curative instruction adequately instructed the jury to ignore the testimony. See Commonwealth v. Valentin, 420 Mass. 263, 270-272, 649 N.E.2d 1079 (1995) (affirming judge's denial of motion for mistrial and curative instruction where testimony was introduced that photograph in array was from juvenile's prior arrest). Although Detective Greeley's comment informed the jury that the juvenile had been previously arrested for some offense, it provided no information to the jury about what sort of prior offense was implicated, nor how serious that offense was. Given the judge's emphatic instruction and the limited nature of the evidence, there was no prejudicial error.

B

Second, the juvenile argues that he was prejudiced by the Commonwealth's failure to disclose a police report containing the juvenile's pretrial statement until the middle of the jury trial. During the initial bench trial and at the start of the jury trial, the juvenile moved for production of any statements made to the police. The Commonwealth asserted repeatedly that no such statement existed. The Commonwealth now concedes that it erred, and that the juvenile made a statement to Detective Daniel Keeler shortly after the shooting and prior to his arrest. The prosecutor claims that he was unaware of this statement until it was brought to his attention during the jury trial, when the two-page written report about the statement was immediately turned over to defense counsel. ²

The Commonwealth concedes, and we emphasize, that such discovery should have been provided the juvenile when originally requested. ³ In the face of repeated requests by counsel for specific and identified information, there should be no room in the criminal justice system for such carelessness--if that is what it was. The question, however, is whether the juvenile suffered prejudice as a result of the Commonwealth's inaction. He did not. The juvenile's statement to the police contains only a generic denial of the accusations against him, which is inadmissible evidence in the Commonwealth, see, e.g., Commonwealth v. Nawn, 394 Mass. 1, 4, 474 N.E.2d 545 (1985), and cases cited, and hearsay evidence--the juvenile's statement to the police that another individual admitted shooting the victim--that would not have helped the juvenile at his bench trial or at his trial by jury. Although the juvenile claims that knowledge of the police report would have bolstered defense counsel's opening statement by permitting reference to the juvenile's willingness to talk to the police immediately after the shooting, this argument is unpersuasive because defense counsel may not allude in his opening statement to evidence that he does not reasonably believe in good faith may be adduced during the trial. See S.J.C. Rule 3:08, DF 12, 382 Mass. 807 (1981). See also Lovett v. Commonwealth, 393 Mass. 444, 449 n. 6, 472 N.E.2d 236 (1984). ⁴ The juvenile therefore suffered no prejudice as a result of the Commonwealth's discovery error.

C

The juvenile's most substantial claim is that the prosecutor's opening and closing arguments appealed impermissibly to the jury's sympathies. See Commonwealth v. Santiago, 425 Mass. 491, 494, 681 N.E.2d 1205 (1997). Throughout the two arguments, the prosecutor referred to the victim as a "nine-year old boy," a "little boy," and a "little nine-year-old boy." The prosecutor referred to the victim as his mother's "little baby boy," and repeatedly mentioned that the victim was shot on his birthday and on Halloween. The juvenile argues that Santiago is controlling, and that the statements constituted prejudicial error requiring a new trial. ⁵

This case differs from Santiago in several important respects. First, the juvenile does not suggest that the prosecutor introduced witnesses primarily for their sympathetic effect or strayed beyond the evidence during his summation. ⁶ In Santiago, the prosecutor called the victim's sister as the Commonwealth's first witness, but she testified to little of relevance and mostly attempted to elicit sympathy from the jury. Id. at 496-497, 681 N.E.2d 1205. Moreover, in his closing...