Com. v. Payne

• Citation: 690 N.E.2d 443,426 Mass. 692
• Parties: COMMONWEALTH v. Michael PAYNE (and seven companion cases 1 ).
• Decision Date: 17 February 1998
• Court: United States State Supreme Judicial Court of Massachusetts

Page 443

690 N.E.2d 443

426 Mass. 692

COMMONWEALTH v. Michael PAYNE (and seven companion cases ¹).

Supreme Judicial Court of Massachusetts Suffolk.

Argued Jan. 6, 1998.

Decided Feb. 17, 1998.

M. Page Kelley, for Marcus Edwards.

David P. Hoose, Springfield, for Michael Payne.

Jane A. Sullivan, Assistant District Attorney, for the Commonwealth.

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

LYNCH, Justice.

A jury convicted each of the defendants, Michael Payne and Marcus Edwards, on two indictments charging murder in the first degree, ² one indictment charging armed robbery, and one indictment charging possession of a handgun without a license. On appeal, both defendants contend that (1) the prosecutor's closing argument was improper; (2) the judge's instructions to the jury were erroneous in several respects; and (3) their armed robbery convictions should have been set aside as duplicative of their felony-murder convictions. Payne also claims that the judge erred in denying his motion to suppress two witnesses' pretrial identifications of him. Finally, the defendants request that we exercise our plenary power under G.L. c. 278, § 33E, to order a new trial or to reduce the murder convictions to a lesser degree of guilt. For the reasons set forth below, we affirm the convictions and decline to exercise our power under G.L. c. 278, § 33E.

Facts. We set forth the facts in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with certain issues raised. See Commonwealth v. Nichypor, 419 Mass. 209, 210, 643 N.E.2d 452 (1994); Commonwealth v. Burnett, 417 Mass. 740, 741, 632 N.E.2d 1206 (1994). On March 28, 1993, at approximately 4 A.M., the defendants and the two victims, Kevin Christopher and Lloyd Industrious, were among a group of people gathered on Lindsey Street in the Dorchester section of Boston. A party at a Lindsey Street residence had just broken up, and the victims were sitting in a motor vehicle. According to several eyewitnesses, the defendants suddenly fired several shots at the victims, killing them. At least one of the defendants then approached, grabbed jewelry from one or both of the victims, and fled on foot. Christopher suffered eleven gunshot wounds and Industrious seven.

1. Photographic identification of Payne. On April 7, 1993, two individuals who had witnessed the incident from an automobile parked nearby identified Payne as one of the shooters from an array of fourteen photographs shown to them by police. On appeal, Payne contends that the judge erred in refusing to suppress evidence of this pretrial identification. "In order to suppress a photographic identification, the defendant must [initially] show by a preponderance of the evidence that, in light of the totality of the circumstances, the procedures employed were so unnecessarily suggestive and conducive to irreparable misidentification as to deny the defendant due process of law." Commonwealth v. Miles, 420 Mass. 67, 77, 648 N.E.2d 719 (1995).

In the present case, Payne failed to show by a preponderance of the evidence that the circumstances surrounding the photographic array were unnecessarily suggestive. ³ There was no evidence that the police engaged in any misconduct during the identification procedure, and the judge found that the techniques of the officers were not impermissibly suggestive. The witnesses identified Payne from a collection of fourteen photographs, a number well above some of the arrays approved by this court. See Commonwealth v. Miles, supra (nine photographs); Commonwealth v. Jackson, 419 Mass. 716, 727, 647 N.E.2d 401 (1995) (eight photographs). All photographs, moreover, depicted black males sharing Payne's age and complexion. Compare Commonwealth v. Miles, supra (identification not impermissibly suggestive where "the array did not distinguish the defendant on the basis of his age") with Commonwealth v. Thornley, 406 Mass. 96, 99-100, 546 N.E.2d 350 (1989) (where assailant's eyeglasses were determinative identifying characteristic and only defendant's photograph featured eyeglasses, array was unnecessarily suggestive).

The fact that the witnesses had previously seen his picture in newspapers and on television did not invalidate the identification. "In the absence of police manipulation of the press, 'simple exposure to the media is not sufficient ground to suppress an identification.' " Commonwealth v. Otsuki, 411 Mass. 218, 234-235, 581 N.E.2d 999 (1991), quoting Commonwealth v. Colon-Cruz, 408 Mass. 533, 542, 562 N.E.2d 797 (1990). Payne presented no evidence of such manipulation. Furthermore, the witnesses testified at the suppression hearing, and the judge found that they recognized him from the shooting incident, not the media photographs. Taken together, these facts justify the judge's conclusion that the pretrial identification procedure was not impermissibly suggestive. The judge's denial of Payne's suppression motion was proper.

2. The prosecutor's closing argument. Both defendants contend that the prosecutor's closing at various points exceeded the bounds of proper argument. We disagree, but will address each claim individually.

First, the defendants claim that the prosecutor impermissibly referred to the witnesses' fear of testifying at trial. ⁴ In response to a defense motion, the judge ruled prior to trial that the Commonwealth was prohibited from referring to the witnesses' fear of testifying at trial. "It is not improper to make a factually based argument that, due to the demeanor ... and appearance of a witness, a particular witness should be believed or disbelieved." Commonwealth v. Kozec, 399 Mass. 514, 521, 505 N.E.2d 519 (1987). Taken in context, the prosecutor in the present case was merely asking the jury to consider the witnesses' fearful demeanor in making their credibility determination. See Commonwealth v. Lapointe, 402 Mass. 321, 331, 522 N.E.2d 937 (1988). The fact that the judge refused to give the jury a special instruction to disregard the prosecutor's comments likewise suggests that, taken in context, the comments were directed to the witnesses' "demeanor on the stand." Consequently, the argument was not improper in this regard.

Second, the defendants claim that the prosecutor, in saying that it was "much easier to simply acquit" the defendants, implied that the jury had a duty to convict. ⁵ While we disfavor closing arguments referring to the jury's duty to convict, Commonwealth v. Smith, 413 Mass. 275, 282-283 n. 6, 596 N.E.2d 346 (1992), we fail to see any such reference in the present case. Rather, as the judge noted, the remarks were "quite [to] the contrary." In making the remarks the prosecutor sought to prevent the jury from being swayed into acquitting the defendants by emotion or laziness. Indeed, he repeatedly stated that the jury's duty was not to the defendants or to the Commonwealth, but to "the truth." Commonwealth v. LaCorte, 373 Mass. 700, 707, 369 N.E.2d 1006 (1977) ("Both judge and counsel may properly impress upon the jury their duty to act with ... impartiality"). Accordingly, the prosecutor's remarks were appropriate.

Third, the defendants contend that the closing impermissibly suggested that the burden of proof was on the defendants. Specifically, the defendants point to the prosecutor's remark that the jury can "believe the [eyewitness] identifications" or "believe the defendants' denial." This was not an invitation to shift the burden from the Commonwealth. The prosecutor did not suggest that believing the defendants' testimony was a prerequisite to acquittal. See Commonwealth v. Yesilciman, 406 Mass. 736, 746, 550 N.E.2d 378 (1990) (prosecutor "may argue that defense witnesses, including the defendant, are not credible"); Commonwealth v. Shea, 401 Mass. 731, 739, 519 N.E.2d 1283 (1988) (not improper for prosecutor to remark that defendant was trying to "fool" jury). Moreover, the judge gave forceful instructions on the Commonwealth's burden of proof, stating that it was the defendants' "absolute right ... to simply come to court, plead not guilty, and then say to the Commonwealth, now you prove it. And say absolutely nothing else if [they] wish." See Commonwealth v. Smith, 404 Mass. 1, 8, 532 N.E.2d 1207 (1989). For these reasons, we reject the defendants' claim.

Finally, the defendants argue that the prosecutor committed reversible error when he incorrectly stated that all the eyewitnesses and the ballistic evidence demonstrated that there were four shooters on the scene. ⁶ The defendants, however, failed to object to the prosecutor's misstatement. Because the defendants failed to object to the closing argument, we need only consider "whether there is a substantial likelihood that a miscarriage of justice has occurred." Commonwealth v. Barros, 425 Mass. 572, 582, 682 N.E.2d 849 (1997), quoting Commonwealth v. Wright, 411 Mass. 678, 681, 584 N.E.2d 621 (1992). Under that standard, we assess the misstatement at issue "in light of the entire argument, the judge's instructions, and the evidence at trial." Commonwealth v. Fryar, 425 Mass. 237, 250, 680 N.E.2d 901 (1997), and cases cited. Here, the prosecutor's misstatement appears to have been an isolated remark in an otherwise appropriate closing argument. The judge, furthermore, charged the jury: "If at any time during the course of trial, most particularly perhaps in closing arguments, but at anytime any of the counsel may have said anything with regard to what a witness said or did not say, if it differs from what you remember, then you disregard any such conflicting statement by counsel. You be guided by your memory of that testimony and that memory alone." See Commonwealth v. Dixon, 425 Mass. 223, 235, 680 N.E.2d 84 (1997) (errors nonprejudicial where "the judge instructed the jury that closing arguments were not evidence and that the jurors' own memories and perceptions were controlling"). Finally, the...