Com. v. Young

• Decision Date: 08 January 2009
• Docket Number: No. 07-P-1461.,07-P-1461.
• Citation: Com. v. Young, 899 N.E.2d 838, 73 Mass. App. Ct. 479 (Mass. App. 2009)
• Parties: COMMONWEALTH v. Rakeem YOUNG.
• Court: Appeals Court of Massachusetts

899 N.E.2d 838

73 Mass. App. Ct. 479

COMMONWEALTH v. Rakeem YOUNG.

No. 07-P-1461.

Appeals Court of Massachusetts, Suffolk.

Argued October 6, 2008.

Decided January 8, 2009.

Chrystal A. Murray for the defendant.

John P. Zanini, Assistant District Attorney, for the Commonwealth, was present but did not argue.

Present: GREEN, SMITH, & FECTEAU, JJ.

SMITH, J.

The defendant was the subject of three indictments charging him with (1) murder in the first degree; (2) armed assault with intent to murder; and (3) unlawful possession of a firearm. A jury returned a verdict of murder in the second degree, and verdicts of guilty as charged on the other two indictments. The defendant filed a timely appeal.

On appeal, the defendant claims that the judge committed error in (1) admitting statements obtained in violation of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); (2) making certain evidentiary rulings; (3) instructing three prospective jurors during voir dire as to what evidence they could consider; (4) excluding the defendant's brother from the courtroom during one witness's testimony; and (5) dismissing a juror.

Facts. The jury reasonably could have found the following facts. During the evening of June 19, 2004, the defendant was assaulted near Orchard Park in the Roxbury section of Boston. He was taken by ambulance to Boston Medical Center, where he was treated for severe facial injuries and discharged later that evening. That same evening, Darrell Williams, with his friend, Cassim Weaver (the victim), picked up three female acquaintances, Sherry and Nicole McCullough and Bonnie Greene, in Williams's car. Williams was driving, Weaver was in the front passenger seat, and the three young women were in the back seat. They stopped at the Peking House, a Chinese restaurant near Orchard Park, and then drove to a parking lot nearby. While they were there, the defendant's brother, Chancellor Young, drove into the lot and parked his car in front of Williams's car. The defendant emerged from the back seat, walked over to the driver's side window of Williams's car and asked, "Which one of you all jumped me?" Shortly thereafter, the defendant fired several shots into the car, fatally injuring Weaver, and injuring Williams. The defendant fled in the vehicle driven by his brother. Approximately six months later, on February 1, 2005, Williams shot and killed another brother of the defendant, Terrence Young.

1. Violation of the defendant's Massiah rights. On appeal, the defendant claims that the judge committed error in allowing Williams to testify to certain statements the defendant allegedly made to Williams while the two were temporarily being held together in a cell, waiting to be transferred to court. The defendant claims that the statements were admitted in violation of Massiah v. United States, supra, because Williams was a government agent.

"Under the Sixth Amendment [to the United States Constitution], the Commonwealth may not `deliberately elicit' statements from the defendant in the absence of his counsel, once formal adversary proceedings have commenced."<sup>1</sup> Commonwealth v. Reynolds, 429 Mass. 388, 393, 708 N.E.2d 658(1999), citing Massiah v. United States, supra at 206, 84 S.Ct. 1199 "Any evidence deliberately elicited in violation of that rule must be suppressed." Commonwealth v. Reynolds, supra. "This prohibition applies equally to overt interrogation by police officers and informants acting as government agents." Ibid. "A judge must determine whether a witness was an agent of the government and, if so, whether evidence was `deliberately elicited' after the agency relationship was formed." Ibid.

We recite the undisputed facts relevant to our resolution of the defendant's claim. Following the murder of the defendant's brother (Terrence), Williams, on May 9, 2006, signed an agreement stating that the Commonwealth would allow Williams to plead guilty to murder in the second degree in exchange for Williams's "complete and truthful" testimony in the defendant's case.² On May 19, 2006, Williams was brought to court to plead guilty to murder in the second degree in regard to the killing of Terrence. Williams, however, changed his mind and refused to plead guilty because he believed that he did not receive a good enough deal.

On June 21, 2006, the day before the defendant's trial was to begin, the prosecutor had Williams brought to court in order to learn whether Williams was to be a witness in the defendant's trial. The same day, the defendant was also to be brought to court. Williams and the defendant were placed in the same temporary holding cell awaiting transportation to the courthouse. While there, the defendant told Williams that (1) if Williams did not testify against him, he would make sure that a witness in Williams's case would not testify against Williams; (2) he knew the mother of Williams's child and the mother of Williams's brother's child; and (3) he followed Williams on the night of the incident and knew he was at the Peking House. The defendant also told Williams that he (the defendant) had been beaten earlier in the evening and that the persons who beat him "hung" with Williams. After the conversation, Williams was brought into the courtroom where he refused to testify against the defendant, invoking his privilege under the Fifth Amendment to the United States Constitution.

The second day of trial, the prosecutor told defense counsel that Williams had changed his mind and would testify. The defendant filed a motion to exclude Williams's testimony as to the statements the defendant had allegedly made to Williams while they were in the holding cell. Without holding a voir dire, the trial judge denied the motion after argument by counsel. The defendant renewed his objection during Williams's testimony and the trial judge overruled it. The judge found that the statements were inculpatory and showed consciousness of guilt, they were admissible because Williams did not deliberately elicit the statements, and that the placement of Williams into the same holding cell as the defendant was accidental.

We begin by considering whether the agreement between Williams and the Commonwealth was in effect at the time the defendant made his statements to Williams. The undisputed facts demonstrate that after Williams entered into the agreement with the Commonwealth on May 9, 2006, he repudiated the agreement on May 19, 2006, when he refused to plead guilty to second degree murder, the "benefit" he had been promised if he provided "complete and truthful information to law enforcement officials investigating and prosecuting the murder of Cassim Weaver" (see note 2, supra).

On June 21, 2006, the date the defendant made the contested statements to Williams in the holding cell, Williams refused to testify against the defendant. Not until five days later did Williams change his mind and notify the prosecutor that he would testify. Therefore, Williams was not an agent of the Commonwealth at the time the defendant made the statements.

Further, even if we assume that Williams was an agent of the Commonwealth at the time the defendant made the statements, there was no evidence that the Commonwealth intentionally had Williams placed in the holding cell with the defendant.

Finally, the statements of the defendant indicate that they were not the product of any questioning or interrogation by Williams. Rather, the statements were volunteered by the defendant in order to make a deal, i.e., if Williams agreed not to testify against the defendant in his trial, the defendant would help Williams in his trial. Volunteered statements do not implicate the Sixth Amendment. Commonwealth v. Hilton, 443 Mass. 597, 618, 823 N.E.2d 383 (2005), S.C., 450 Mass. 173, 877 N.E.2d 545 (2007).

2. Evidentiary claims. The defendant next claims that the trial judge improperly admitted testimony concerning Williams's identification of the defendant at the hospital following the shooting. The defendant also claims that the judge improperly admitted testimony explaining prior inconsistent statements Williams made while he was incarcerated. Because the statements were admitted over defense objection, we review for prejudicial error. See Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994). We address each evidentiary claim in turn.

a. Identification testimony. The defendant asserts that Williams's out-of-court statement that the defendant shot him was not admissible as a prior consistent statement nor as indicative of a state of police knowledge. The Commonwealth maintains that Williams's statement is admissible for substantive purposes. We agree with the Commonwealth. See Mass. G.Evid. § 801(d)(1)(C) (2008-2009) ("A statement of identification made after perceiving the person if the declarant testifies at trial . . . and is subject to cross-examination concerning the statement" is not hearsay and is admissible for the truth of the matter asserted). See also Commonwealth v. Cong Duc Le, 444 Mass. 431, 439-440 & n. 8, 828 N.E.2d 501 (2005); Commonwealth v. Raedy, 68 Mass.App.Ct. 440, 447-450 & n. 14, 862 N.E.2d 456 (2007).

b. Rehabilitation of Williams following impeachment by prior inconsistent statements. On cross-examination, the defense elicited testimony from Williams that he wrote two letters to the defendant, while they were both incarcerated, in which he recanted his earlier identification of the defendant as his assailant. The two letters were admitted in evidence. On redirect examination, Williams explained that he recanted his earlier identification because he did not want to be perceived by his fellow inmates as "ratting" on the defendant. The defendant claims that the trial judge's admission of Williams's explanation was improper because Williams's motivation to write the letter was not relevant to the defendant's guilt and was more prejudicial than probative. We are not persuaded.

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