Commonwealth v. Bryant

• Decision Date: 30 July 2019
• Docket Number: SJC-11675
• Citation: 128 N.E.3d 40,482 Mass. 731
• Parties: COMMONWEALTH v. Kyle BRYANT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

482 Mass. 731

128 N.E.3d 40

COMMONWEALTH

v.Kyle BRYANT.

SJC-11675

Supreme Judicial Court of Massachusetts, Plymouth..

Argued May 10, 2019

Decided July 30, 2019

Alan J. Black, Springfield, for the defendant.

Audrey Anderson, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.

CYPHER, J.

A jury convicted the defendant, Kyle Bryant, of murder in the first degree on a theory of deliberate premeditation for the killing of Darnell Harrison (victim).¹ On appeal, the defendant contends that the judge erred when he allowed the Commonwealth to introduce prior bad act evidence that showed the defendant was a drug dealer, denied the defendant's request for an eyewitness identification jury instruction, and denied the defendant's motion for a mistrial.

For the reasons stated below, we affirm the defendant's convictions. After a thorough review of the record, we also decline to exercise our authority under G. L. c. 278, § 33E, to grant a new trial or to reduce or set aside the verdict of murder in the first degree.

1. Background. We summarize the facts that the jury could have found, reserving pertinent facts for the discussion of the defendant's arguments.

The defendant was a drug dealer who, along with his associates, Peterson Fleury and Tremaine Hampton, sold drugs from a bar. Approximately two months prior to the killing, Fleury sold $1,200 of the defendant's drugs to Sean Cox and was given $1,100 in counterfeit money.² The defendant was angry that he had been deceived. He told Hampton that he was "gonna get" the person who stole from him.

On January 5, 2010, the victim and Cox were at the bar. Fleury, who frequented the bar, briefly talked to the victim and Cox and then telephoned the defendant eight times between 5:36 P.M. and 6:07 P.M. Fleury told the defendant that Cox and the victim were at the bar.

At approximately 6 P.M. , the victim and Cox left through the rear of the bar to smoke a cigarette. Shortly thereafter, an individual in a dark, hooded sweatshirt approached Cox and the victim and shot them. The victim stumbled back into the bar and collapsed. After Fleury saw the victim lying on the floor of the bar, he telephoned the defendant again. Cox survived the shooting, but the victim did not.

Minutes after the shooting, the defendant arrived at the home of Pamela Brown, who lived in an apartment behind the bar and had purchased drugs from the defendant in the past. The defendant banged on her door. Brown thought that strange because the defendant always telephoned her before arriving at her apartment, but he did not do so that day. Once inside, the defendant ran to the bathroom, where he rinsed off his sweatshirt and hung it on the door. Later, he placed the sweatshirt in a plastic bag. The defendant then telephoned Hampton and instructed him to go to the bar to see if police had arrived, but Hampton did not go.

Soon after the shooting, the defendant's girlfriend arrived at Brown's apartment. The defendant put the plastic bag holding his sweatshirt in his girlfriend's vehicle and placed an unidentified object under the passenger's side seat. The defendant's girlfriend drove away.

Hours later, Hampton and the defendant met in person, where the defendant confessed to being the shooter. The defendant repeatedly asked Hampton, "Can I trust you?" The defendant stated: "[The victim] couldn't make it to the door in time. I shot him and then I shot him again."

A few weeks later, the defendant again confessed to Hampton about the killing. He said that "if he knew killing was this easy, he would have been doing it" and "[i]t was just like taking candy from a baby." The defendant also bragged that police would never find his cellular telephone or the gun he used in the killing because he had buried them.

Police recovered three spent nine millimeter shell casings outside the rear of the bar, two spent nine millimeter bullets from inside Cox, and another two nine millimeter bullets from the door of the bar and inside the bar. The defendant owned two nine millimeter guns. One of the defendant's guns was chrome colored. A witness at the scene described the gun used in the shooting as being silver. The witness also described the shooter as matching the defendant's general characteristics -- height and complexion -- and testified that he was wearing a dark, hooded sweatshirt. Multiple other witnesses testified that they saw a man who matched the defendant's characteristics, and who was wearing dark clothes and a hooded sweatshirt, running from the area of the bar toward the area of Brown's house shortly after the shooting.

A home recording surveillance system close to the bar captured video footage of a man walking through the area immediately after the shooting. Still photographs from that video footage were included in evidence, and both Brown and Hampton identified the man in the photographs as being the defendant.

2. Discussion. a. Prior bad acts. Before trial, the Commonwealth filed a motion in limine to allow testimony by Hampton and two prior drug customers of the defendant, Scott Rounds and Elayne Mahoney. The Commonwealth sought to admit evidence of the defendant's drug distribution both before and after the shooting as probative evidence of the defendant's motive to shoot Cox and the victim and as probative evidence of his demeanor and state of mind on the night of the killing. The defendant opposed the admission of this testimony, arguing that it was bad character evidence and that it was more prejudicial than probative. The judge allowed the admission of the testimony. At trial, the Commonwealth presented evidence from Hampton, Rounds, and Mahoney that showed that the defendant was a drug dealer.

The defendant argues that this evidence was admitted improperly because it showed that the defendant had a criminal propensity or was of bad character. He further contends that, even if any of the evidence was potentially relevant, the evidence was more prejudicial than probative, and therefore it should not have been admitted. The Commonwealth argues that the evidence was offered for the purposes of establishing the defendant's motive as well as his state of mind on the night in question. We conclude that the judge did not abuse his discretion in admitting the evidence.

"It is well settled that the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose." Commonwealth v. Helfant, 398 Mass. 214, 224, 496 N.E.2d 433 (1986). See Mass. G. Evid. § 404(b) (2019). Such evidence may be admissible to show, for example, "a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive." Helfant, supra. "It also may be used where evidence of the prior bad acts is inextricably intertwined with the description of events ... of the killing" (quotation and citation omitted). Commonwealth v. Marrero, 427 Mass. 65, 67, 691 N.E.2d 918 (1998).

Nevertheless, even if the evidence is relevant to one of these other purposes, the evidence will not be admitted if its probative value is outweighed by the risk of unfair prejudice to the defendant.

Commonwealth v. Crayton, 470 Mass. 228, 249, 21 N.E.3d 157 (2014). See Mass. G. Evid. §§ 403, 404(b)(2). "Determinations of the relevance, probative value, and prejudice of such evidence are left to the sound discretion of the judge, whose decision to admit such evidence will be upheld absent clear error" (citation omitted). Commonwealth v. Dung Van Tran, 463 Mass. 8, 14–15, 972 N.E.2d 1 (2012). The effectiveness of limiting instructions in minimizing the risk of unfair prejudice should be considered in balancing prejudice and probative value. See Commonwealth v. Dunn, 407 Mass. 798, 807, 556 N.E.2d 30 (1990) ; Mass. G. Evid. §§ 105, 403.

i. Hampton. At trial, Hampton testified that he had been a friend of the defendant for approximately three years prior to the killing. Shortly after meeting the defendant, Hampton began selling drugs for him. Hampton testified that, a few months before the shooting, the defendant told him that someone used counterfeit money to steal the defendant's drugs from Fleury. The defendant told Hampton that he was going to "handle it" when he saw the person who stole the drugs.

The evidence of the defendant's activity as a drug dealer was highly probative and relevant because it established his relationship with Hampton as a friend and drug dealing associate, which explained why the defendant would confide in Hampton and established a motive for the shooting. See Commonwealth v. Copney, 468 Mass. 405, 414, 11 N.E.3d 77 (2014). The Commonwealth's theory of the case was that Cox stole $1,100 worth of drugs from the defendant. One of the defense strategies was to point to another drug dealer who sometimes worked with the defendant, Andrew Levy, as the perpetrator of the killing. "In these circumstances, it was unavoidable that evidence of the defendant's drug business and his interactions with his customers would be admitted." Marrero, 427 Mass. at 68, 691 N.E.2d 918.

Moreover, the defendant's statement that he would "handle it" indicates the defendant's intent to get revenge for the theft. See Commonwealth v. Almeida, 479 Mass. 562, 568, 96 N.E.3d 708 (2018). This evidence was also essential to the Commonwealth's case to establish premeditation. See Commonwealth v. Pagan, 440 Mass. 84, 87–88, 794 N.E.2d 1184 (2003) (prior bad act evidence admissible to show hostile nature toward victim and premeditation of subsequent killing); Marrero, 427 Mass. at 68, 691 N.E.2d 918 (evidence of involvement in drug dealing business admissible where relevant to motive for killing). Without the evidence that the defendant was a drug dealer who sought revenge, "the killing could have appeared to the jury as an ...