Commonwealth v. Harbin

Citation760 NE 2d 1216,435 Mass. 654
PartiesCOMMONWEALTH v. NATHANIEL HARBIN.
Decision Date05 October 2001
CourtUnited States State Supreme Judicial Court of Massachusetts

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

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 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 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). 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 instructions given to the jury at trial. With regard to all of these claims, we consider the jury charge as a whole, "looking for the interpretation a reasonable juror would place on the judge's words." Commonwealth v. Trapp, 423 Mass. 356, 361, cert. denied, 519 U.S. 1045 (1996).1 We find no error.

a. Consciousness of guilt. The judge included an instruction to the jury on the proper basis to consider evidence of the defendant's consciousness of guilt. The defendant argues that this was error, because there was insufficient evidence to support such an inference. We disagree. The evidence on this issue, including the defendant's flight from the scene, his late-night visit to tell a friend that he was leaving and would miss her, the inability of the police to find him in the Commonwealth, and his apprehension two years later in another State, amounts to sufficient evidence to warrant an instruction on consciousness of guilt.2 See Commonwealth v. Hamilton, 426 Mass. 67, 75 (1997).

b. Expert witness. The judge gave a general instruction that it was for the jury to decide whether to accept or reject any parts of any witness's testimony. The defendant maintains that the judge erred in failing to instruct the jury additionally that they may believe all, some, or none of the fingerprint expert's testimony, specifically, and that his attorney was ineffective for not requesting such an instruction. A judge, however, "need not instruct on every subsidiary fact and possible inference." Commonwealth v. Chasson, 383 Mass. 183, 188 (1981). That the judge chose not to comment specifically on the jury's role in evaluating the expert's testimony did not create a substantial likelihood of a miscarriage of justice, especially where he gave instructions to the same effect with regard to testimony in general. Cf. Commonwealth v. Simpson, 434 Mass. 570, 591 (2001) (lack of instruction on failure of police to conduct forensic test did not create substantial likelihood of miscarriage of justice); Commonwealth v. Cordle, 412 Mass. 172, 178 (1992) (same). As for trial counsel's failure to request it, this was a strategic choice. The fingerprint testimony was damaging to the defendant, and a particular instruction would have highlighted it for the jury. Trial counsel may have determined that the general instruction, which the jury properly received, was preferable. We will not second-guess the defendant's trial strategy. See Commonwealth v. Fisher, supra.

c. Verdict slip. In describing the verdict slip that the jury would have to complete, the judge explained that several different verdicts were available. The judge said:

"What are the possible verdicts in this case? Obviously, if the Commonwealth has not proved its case beyond a reasonable doubt, the possible verdict is not guilty. Another possible verdict, if you are persuaded beyond a reasonable doubt of all the elements of first degree murder[,] is a verdict of guilty of murder in the first degree. If you are not persuaded of all the elements of murder in the first degree, but you are persuaded of the elements relating to murder in the second
...

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