Commonwealth v. Bright, SJC–11016.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: LENK
• Citation: 974 N.E.2d 1092,463 Mass. 421
• Decision Date: 13 September 2012
• Docket Number: SJC–11016.
• Parties: COMMONWEALTH v. Ahmad BRIGHT.

463 Mass. 421
974 N.E.2d 1092

COMMONWEALTH
v.
Ahmad BRIGHT.

SJC–11016.

Supreme Judicial Court of Massachusetts,
Middlesex.

Submitted May 10, 2012.
Decided Sept. 13, 2012.

[974 N.E.2d 1097]

Paul F. Ware, Jr. (Nicholas K. Mitrokostas & Yvonne W. Chan with him), Boston, for the defendant.

Michael A. Kaneb, Assistant District Attorney (John C. Verner, Assistant District Attorney, with him) for the Commonwealth.

Alex G. Philipson & Peter B. Krupp, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

Peter M. Onek, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, GANTS, DUFFLY, & LENK, JJ.

LENK, J.

[463 Mass. 422]The defendant, Ahmad Bright, was indicted on charges of murder in the first degree, armed assault with intent to murder, and unlawful possession of two firearms. The charges arose out of the then sixteen year old defendant's asserted participation in what the trial judge described, in denying the defendant's motion for a new trial, as an “alleged contract killing by one drug dealer of another.” A jury convicted the defendant of murder in the second degree, assault by means of a dangerous weapon, and unlawful possession of one firearm. The defendant appealed from his convictions and the denial of his motion for a new trial. We allowed his application for direct appellate review.¹

The jury heard evidence that the victim, Corey Davis, was shot for a fee in Cambridge on the night of March 18, 2006, by one Remel Ahart, who acted at the behest of the defendant's older brother, Sherrod Bright.² The defendant, who was armed, accompanied Ahart to the scene of the crime. The defense suggested several alternate theories of the crime; prominent among them was the argument that James Miller, the Commonwealth's key witness, and not the defendant, had participated with Ahart in the shooting. There was evidence that the victim, Ahart, and Sherrod were involved in the drug trade, and that Miller, too, [463 Mass. 423]was considering dealing drugs. The defendant was a college-bound varsity athlete in his junior year of high school.

On appeal, the defendant claims error in multiple respects. He maintains that the judge erred both in allowing the admission of certain out-of-court declarations made by Ahart and Sherrod, and in instructing the jury on the use of these coventurer declarations. He claims error as well in the restrictions placed on his ability to elicit testimony as to the gang affiliations of potential third-party culprits, and in the judge's posttrial rulings on his motion for a new trial. Each of these claims is unavailing, and we affirm the defendant's convictions of murder in the second degree and unlawful possession of a firearm.

However, the defendant was not indicted on the charge of assault by means of a dangerous weapon, of which he was ultimately convicted. That charge is not a lesser included offense of armed assault

[974 N.E.2d 1098]

with intent to murder, the charge on which he was indicted. Accordingly, the defendant's conviction of assault with a dangerous weapon is vacated, and the case is remanded for entry of a judgment of simple assault.

1. Background. We recite the facts as presented by the Commonwealth's witnesses at trial.

Shortly before midnight on March 18, 2006, Corey Davis was shot multiple times while seated in the passenger seat of his vehicle, which was stopped on Hamilton Street in Cambridge. Ahart, the shooter, continued firing his nine millimeter pistol as the victim stumbled out of the vehicle and attempted to flee. The victim died from his wounds.

Corey Davis's cousin, Troy,³ was in the driver's seat of Corey's automobile. As Troy opened the door to run, he saw a person of the defendant's stature and build aiming a revolver at him in “[f]iring stance.” ⁴ Because the individual was wearing a hooded sweatshirt, Troy did not observe the individual's facial features and was unable to say whether the defendant was the person he saw.

[463 Mass. 424]Indeed, just one witness squarely placed the defendant at the scene of the crime. Miller, a previously incarcerated aspiring drug dealer, stated that the defendant and Ahart had picked him up that evening from his residence in Cambridge. The three spent much of the night driving around Cambridge and Boston, looking for beer and cigars. Early in the evening, Miller saw Ahart with a revolver. A few hours later, the defendant received a telephone call, after which the defendant said to Ahart, “Yo, niggers got a Baby 9 for us.” The defendant then drove Ahart and Miller to the defendant's home in the Dorchester section of Boston, where they met Sherrod and another man, retrieving a nine millimeter pistol.

The defendant, Ahart, and Miller then drove back to Cambridge. On the way, and while driving around Cambridge, Ahart and the defendant ⁵ told Miller that they had come to believe that the victim had stolen $15,000 from Sherrod.⁶ Miller also was told that Sherrod had asked Ahart and the defendant to kill the victim in retribution, offering to pay them “a couple thousand” dollars on completion of the deed. Having explained this background, Ahart and the defendant attempted to persuade Miller to tell the victim, an acquaintance of Miller, to meet them. They also attempted to have Miller procure a third weapon from a friend. Although Miller contacted this friend, he was told that the weapon had already been sold.

Late in the evening, Ahart, Miller, and the defendant spotted the victim's vehicle passing by a rotary. The defendant followed the victim in his Jeep Grand Cherokee, observing the victim park on Hamilton

[974 N.E.2d 1099]

Street. Stopping on an adjacent road, the defendant exclaimed, “[L]et's kill that man.” He got out of the vehicle and ran with Ahart back toward Hamilton Street and out of Miller's field of vision. Ahart carried the pistol, while the defendant took the revolver. At that point, Miller left the vehicle and began walking away from the scene. Minutes later, however, [463 Mass. 425]he encountered Ahart and the defendant, who persuaded him to get back into the Jeep. Miller asked them, “Yo, you dudes just did that shit?” They replied, “Yeah.”

Records from a cellular telephone closely associated with the defendant were consistent with Miller's account of the defendant's movements. The records suggested that, for most of the night, Miller's cellular telephone was moving in tandem with the defendant's telephone. The weapons described by Miller were recovered near the scene of the crime.⁷

Miller testified also to two meetings he had with Ahart in the days following the shooting; the defendant was not present at either meeting. At the first meeting, Ahart and Miller discussed that the police had already spoken to at least one of their acquaintances about the shooting, and that they were looking for Ahart in connection with the crime. Ahart urged Miller to “lay low” and offered to buy Miller clothes in exchange for his silence. Ahart also provided additional details of what had occurred in the minutes after the defendant and Ahart had left the Jeep, saying that he had shot the victim but that the defendant had “froze[n] up,” allowing Troy to escape. Ahart suggested that Miller might help them “get” Troy. At the second meeting, at which Sherrod was also present, the three discussed an alibi for the night of the murder, one which included Miller. Miller was again warned, “[D]on't say nothing.”

2. Discussion. As previously stated, the defendant contends that the judge erred in three respects at trial: in permitting the admission, through Miller, of certain of Ahart's and Sherrod's out-of-court statements; in instructing the jury on the circumstances in which they could consider such statements; and in precluding defense counsel from pursuing lines of questioning that could have shown that the murder was the result of a dispute between gangs. He also claims error in the denial of his motion [463 Mass. 426]for a new trial, arguing that the jury considered extraneous and prejudicial information in the course of their deliberations. Finally, he maintains that his conviction of assault by means of a dangerous weapon was obtained in violation of his right not to be convicted of a crime without first having been indicted for that offense. We address each of these claims in turn.

a. Joint venture hearsay. Miller's testimony contained many hearsay statements. The vast majority of these statements were attributed to Ahart, and a small number to Sherrod.⁸

[974 N.E.2d 1100]

We recognize an exception to the hearsay rule whereby “statements by joint venturers are admissible against each other if the statements are made ‘both during the pendency of the cooperative effort and in furtherance of its goal.’ ” Commonwealth v. Braley, 449 Mass. 316, 319, 867 N.E.2d 743 (2007), quoting Commonwealth v. Colon–Cruz, 408 Mass. 533, 543, 562 N.E.2d 797 (1990). See Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). This rule derives from an analogy between a criminal venture and a lawful partnership: each venturer is treated as an “agent for the other in all matters relating to the common object, and the acts and declarations of one in furtherance of such object are admissible to affect the principal as well as the agent.” Commonwealth v. Tivnon, 8 Gray 375, 381 (1857). Accord Commonwealth v. White, 370 Mass. 703, 712, 352 N.E.2d 904 (1976).

A trial judge may allow the admission of such statements, but only after a preliminary determination, based on a preponderance of admissible evidence other than the out-of-court statements themselves, that a criminal joint venture existed between the declarant and the defendant, and that the statement was made in furtherance of the venture.⁹Commonwealth v. Cruz, 430 Mass. 838, 844, 724 N.E.2d 683 (2000). Such a preliminary determination permits a...