Commonwealth v. Harbin

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 760 NE 2d 1216,435 Mass. 654
• Parties: COMMONWEALTH v. NATHANIEL HARBIN.
• Decision Date: 05 October 2001

435 Mass. 654
760 NE 2d 1216

COMMONWEALTH
v.
NATHANIEL HARBIN

Supreme Judicial Court of Massachusetts, Plymouth.

October 5, 2001.

January 22, 2002.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, & CORDY, JJ.

435 Mass. 655

James A. Couture for the defendant

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

IRELAND, J.

Nathaniel "China" Harbin was convicted of murder in the first degree for shooting Travis Powell in the forehead at point blank range with a shotgun. On appeal, the defendant raises a number of issues that he argues entitle him to a new trial. Because these claims lack merit, and because our review of the record under G. L. c. 278, § 33E, reveals no reason that justice would require our intervention, we affirm the conviction, affirm the orders denying the defendant's motions for a new trial, and deny § 33E relief.

We recite the facts in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with the issues raised. On the day of the murder, the defendant went to a crack house in Brockton and exchanged greetings with Stephanie Cannata, a witness who knew him only casually. She knew who he was, she said, because she had seen him in some of the same bars that her father, Stanley Santos, frequented. She testified that the defendant called her "Santos' [s] kid" when he greeted her that day. During the visit Cannata saw him open a closet door, remove a gym bag, rummage through it, and then leave.

Soon the defendant returned, this time in the company of Terrance

435 Mass. 656

Hicks, the codefendant. The defendant addressed the victim, Travis Powell, who had been running the crack house for less than one week. Pointing a double-barreled shotgun at the victim, the smiling defendant asked, "What's up now, punk?," and "What's up now, sucker?," then fired a blast into the wall over the victim's head. Seconds later, as the victim raised his arms in front of his head in a defensive posture, the defendant fired a second blast, striking the victim in the arm and hand as well as his forehead. The defendant and the codefendant then left the apartment. The victim died almost immediately

Shortly thereafter, in the early hours of the morning, the defendant paid a visit to his friend, Katrina Bostic. He told her he was leaving town and that he was going to miss her. Although the police initiated a search for the defendant within minutes of the shooting, he was not apprehended until almost two years later, in New York State.

We address the defendant's claims seriatim and add additional facts where necessary.

1. Ineffective assistance of counsel. In evaluating a claim of ineffective assistance of counsel in a case of murder in the first degree, we begin by determining whether there was a serious failure by trial counsel. If so, then we determine whether the failure resulted in a substantial likelihood of a miscarriage of justice. See, e.g., Commonwealth v. Wright, 411 Mass. 678, 682 (1992) ("substantial likelihood" standard, more favorable to defendants, is used in capital cases). We give trial counsel's tactical decisions due deference. See Commonwealth v. Fisher, 433 Mass. 340, 354 (2001). Unless such a decision was "manifestly unreasonable when made," we will not find ineffectiveness. Commonwealth v. Coonan, 428 Mass. 823, 827 (1999), quoting Commonwealth v. Martin, 427 Mass. 816, 822 (1998).

The defendant claims that his attorney was ineffective because he did not object to testimony from the victim's mother that evoked sympathy from the jury, and did not move to strike the testimony of Maria Frautten. Both claims lack merit. The mother's testimony was admissible to explain the victim's presence in the crack house and to provide "family background

435 Mass. 657

information" "to humanize the proceedings." Commonwealth v. Marshall, 434 Mass. 358, 368 (2001), quoting Commonwealth v. Degro, 432 Mass. 319, 323 (2000). The judge committed no "palpable error" in admitting her testimony, Commonwealth v. Marshall, supra at 369, quoting Commonwealth v. McIntyre, 430 Mass. 529, 539 (1999), and there was no ineffective assistance of counsel

Frautten's testimony began with her statement that she once knew a person named "China," but that she could not remember who that person was. Given her apparent lack of personal knowledge, she was quickly ushered off the stand. The defendant argues that the jurors might have inferred that she had recognized the defendant as "China," but refused to identify him because she was afraid, thereby prejudicing him. We are not convinced by the defendant's efforts to draw such an attenuated inference. There was no misstep by trial counsel for failing to move to strike this testimony, and there is no substantial likelihood of a miscarriage of justice here.

2. Hearsay. The defendant next complains that there was insufficient evidence of personal knowledge to justify the admission of a witness's statement to a police officer that "China and Terry were there [at the shooting]." The officer's testimony of what the witness had said was admitted as an excited utterance. See, e.g., Commonwealth v. Zagranski, 408 Mass. 278, 285 (1990) (spontaneous utterance exception to hearsay rule requires utterance qualifying, characterizing, or explaining event, made under influence of exciting event and before declarant has had time to contrive or fabricate, to ensure sufficient indicia of reliability). Although witnesses may not testify unless evidence is introduced sufficient to support a finding that they have personal knowledge of the matter about which they are testifying, see P.J. Liacos, Massachusetts Evidence § 6.5, at 268 n.1 (7th ed. 1999), there is no requirement that the declarant have been a participant in the exciting event. "[A] bystander's declarations would be admissible." 6 J. Wigmore, Evidence § 1751, at 222-223 (1976). See Commonwealth v. McLaughlin, 364 Mass. 211, 223-224 (1973) (where witness testifies from personal knowledge, spontaneous utterance exception not limited to participant in event that is subject of utterance).

435 Mass. 658

Here, when an eyewitness told the police that she "saw everything.... China and Terry did it," the trial judge sanitized the statement to "China and Terry were there," out of concern that there was insufficient evidence before the jury of the witness's personal knowledge. The concern was unwarranted, because "[e]vidence to prove personal knowledge may... consist of the testimony of the witness h[er]self." P.J. Liacos, supra. The witness's statement that she "saw everything" would have laid sufficient foundation for the remainder of the statement, that "China and Terry did it." The defendant got a windfall with the judge's sanitization of the excited utterance, and no error was committed.

3. Jury instructions. The defendant claims three points of error in the...