Commonwealth v. Carrasquillo

• Decision Date: 01 April 2002
• Docket Number: 00-P-1476
• Citation: 54 Mass. App. Ct. 363
• Parties: COMMONWEALTH vs. JESUS CARRASQUILLO. Docket No.: 00-MASSACHUSETTS COURT OF APPEALS County: Suffolk
• Court: Appeals Court of Massachusetts

COMMONWEALTH vs JESUS CARRASQUILLO

Docket No.: 00-P-1476

MASSACHUSETTS COURT OF APPEALS

County: Suffolk

December 14, 2001.

April 1, 2002

Evidence, Prior inconsistent statement, Credibility of witness, Impeachment of credibility, Spontaneous utterance, Grand jury proceedings. Practice, Criminal, Grand jury proceedings.

Indictments found and returned in the Superior Court Department on February 23, 1999, and March 18, 1999, respectively.

The cases were tried before John M. Xifaras, J.

Edward B. Gaffney for the defendant.

Susanne Levsen Reardon, Assistant District Attorney, for the Commonwealth.

Present: Rapoza, Kaplan, & Berry, JJ.

KAPLAN, J.

The defendant, Jesus Carrasquillo, was convicted on criminal charges arising from a street shooting.¹ On his appeal, the defendant contends that the trial judge erred in admitting, as substantive evidence, the victim's statement at a hospital within an hour of the episode that the defendant was the shooter, and again the victim's statement to the same effect in his testimony before the grand jury. We agree with the judge that the statements, over hearsay objections, were admissible as substantive proof, the first statement as an "excited utterance," see Commonwealth v. Zagranski, 408 Mass. 278, 285 (1990), the second as previous uncoerced sworn testimony by a witness now subject to cross-examination, see Commonwealth v. Daye, 393 Mass. 55, 67-68 (1984); Commonwealth v. Clements, 436 Mass. 190, 192-193 (2002). There was other, weighty substantive evidence in addition. We affirm the convictions.

Narrative. The following may be accepted as common ground. In early morning of January 24, 1999, around 4:00 A.M. the victim, Tyron Greene, was standing near a pay telephone on Tremont Street at Parker Street in the Mission Hill neighborhood of Boston. A car came by with Greene's long time buddies, the defendant Carrasquillo, also known as "Little Net" and "NeNe," and another youth, called "Migs." The defendant, who was driving, offered Greene a ride home. Greene entered the car, taking the front passenger seat, with Migs remitted to a back seat. As they went east on Tremont Street, Greene took out some marijuana, thirty or forty dollars worth, and prepared to smoke. Now an argument broke out. The defendant demanded some weed, Greene refused to part with any of it. (The defendant appeared quite drunk and Greene had been drinking at a night club before turning up at Parker Street.) The defendant brought the car to a halt at the corner of Delle Avenue and Burney Street and, quitting the car, told the two to stay and wait.² Greene left the car and waited. He supposed the defendant was going out to get money or weed, but the thought also occurred that the defendant might find a gun, for he was a small man and would need such reinforcement in case of a fight.

In five or ten minutes, a man appeared and came toward the car. Greene approached him within a few feet. The man was holding a gun. Green turned and ran. He heard five gunshots and a few clicks. He knew he had been shot. Bleeding and in pain, he walked or ran the six or seven blocks to the Brigham and Women's Hospital on Francis Street and was promptly admitted to the emergency room.

We pass from this setting to other testimony of witnesses at trial. Dr. Dan Gurr, chief of emergency service at the hospital, testified he took Greene in hand as soon as he arrived, for he appeared to have a life threatening injury; he was in danger of bleeding to death. Dr. Gurr testified Greene appeared bloody, screaming, upset; he was cold, clammy, sweaty, agitated, trembling, saying a lot of words; it was "a bunch of emotions." Forty-five minutes into it, Greene told Dr. Gurr: "I got shot." Gurr testified, "He said he knew who it was." The bullet had entered the right buttock, traveled into the pelvis, around the hip joint, struck bone and somewhat splintered. Greene was elaborately treated. Hip replacement was first considered, but in the end a lesser operation sufficed.

Sergeant Michael Stratton of the Boston police, responding to calls about the shooting, arrived at the emergency room about 4:30 A.M., as he recalled. Stratton said Greene, trussed up in bed, appeared "in shock," "upset and visibly in pain because every time he would move, he would cringe. His whole face and his whole body would tense up with pain." After getting permission from the staff, Stratton talked with Greene.³ He was "in and out" and "distracted by the pain" as the conversation went on haltingly for five to ten minutes. At first Greene wouldn't talk, but Stratton eased him into speaking by asking a few routine questions. Greene mentioned briefly what happened up to the time he was shot. When Stratton asked him the name of the man who shot him, "he said he didn't know his name, that he knew him as Little Net."... 'I should know him. I grew up with him.'" This statement was admitted as substantive evidence over objection. The ruling was consistent with the judge's finding at a pretrial voir dire that the statement qualified as an excited utterance.

Detectives Robert Kenney and Robert Zingg of the Boston police, who together had participated in investigating the crime on January 24, had the task on February 1 of serving a subpoena on Greene to appear before the grand jury. The officers testified Greene was friendly but reluctant or complaining about having to comply; they told him he had no choice. During the visit, Greene identified Little Net as the shooter; indeed, Greene himself testified at trial he had so identified Little Net during the visit.

On February 3, Greene appeared before the grand jury pursuant to subpoena and told the story of the shooting and again said he recognized the defendant as the shooter. The defendant objected at trial to the introduction of the statement as substantive proof⁴ and its admission is the other bone of contention.

On February 5 or 7, Kenney and Zingg went again to Greene's residence and presented him with an array of pictures (all received in evidence). Greene pointed to number 6, depicting the defendant, and by way of identifying the defendant as the shooter, pointed to his buttock; and he put his initials to number 6. He accepted in his trial testimony that he had made this identification.

Greene remained friendly, according to the officers, at their visit on March 5, when he made a sketch of the layout at Burney Street. On July 29, however, he said he would not cooperate and testify at trial. Hence he was given immunity shortly before the date of trial.

Called by the Commonwealth, Greene gave extended testimony, in part as a declared hostile witness. He retold the now familiar story of the meeting, the drive, and the shooting. As to the happening at the hospital, the defendant's counsel elicited from Greene in cross-examination that there were some moments of interval in the conversation with Stratton when Greene might possibly have had time to reflect on his answers. The main feature of Greene's testimony was that he had had, he said, a change of perception. As he was seated next to the defendant during the drive and saw the defendant depart the car, it was natural for him to assume that the man with the gun was the defendant, and so he said in his statements right through his meetings with the police officers. After further thought, however, he realized that he had seen the man holding out the weapon only below his waist. He was now unable and unwilling to make a positive identification. So he explained his turnabout.

But then he testified on a different line, that he was forced into making his grand jury statement. Greene denied he had been in fear of any reprisals by the defendant or the defendant's friends, but mentioned intimidation by the police. If he meant no more than that he had no option but to appear and speak when summoned by the grand jury, as advised by the police, then the supposed coercion came to very little. But he said he was on probation in connection with a drug offense when he attended at the grand jury. Also he said, as to giving up the defendant's name to the grand jury, "that was to get my dignity back so you all can leave me alone." (He said, too, he was anxious about giving testimony at the trial for fear he would wind up in jail, presumably for drug crimes, and so disabled to support his necessitous brother and sister; but as to that he had secured immunity.) The trial judge indicated at sidebar during trial he had considered the question of coercion and was not deterred in admitting the grand jury identifying statement.

Rulings on evidence. Greene's testimony at trial that he did not see the shooter whole, and hence could not identify him, may be taken as inconsistent with his prior four statements -- to Dr. Gurr, Stratton, Kenney and Zingg, the grand jury -- and his identification of the defendant in the photographic array. (On inconsistency, see Commonwealth v. Daye, 393 Mass. at 73 n.16; United States v. Williams, 737 F.2d 594, 608 [7th Cir. 1984].) Eminent scholars and judges have sponsored the view that all such prior inconsistent statements should be admitted as substantive proof, pace general hearsay doctrine. See the discussion and references in United States v. De Sisto, 329 F.2d 929, 933 (2d Cir.) (Friendly, J.), cert. denied, 377 U.S. 979 (1964). That view has not achieved acceptance in this Commonwealth, and it remains the customary rule that such statements may be received only as means of impeaching the present credibility of the witnesses, not as substantive proof proper (even though the distinction may be lost on some jurors). There are, however, exceptional situations in which the customary rule becomes inapplicable, and two of these occur in the present case.

1. "A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" (the short formulation of Fed.R.Evid. 803[2...