Commonwealth v. Lucien

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: SPINA, J.
• Citation: Commonwealth v. Lucien, 440 Mass. 658, 801 N.E.2d 247 (Mass. 2003)
• Decision Date: 10 October 2003
• Parties: COMMONWEALTH vs. JAMES LUCIEN.

440 Mass. 658

801 NE 2d 247

COMMONWEALTH vs. JAMES LUCIEN.

Supreme Judicial Court of Massachusetts, Suffolk.

October 10, 2003.

January 12, 2004.

Present: Marshall, C.J., Spina, Cowin, & Sosman, JJ. Stephen Neyman for the defendant

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

SPINA, J.

The defendant was convicted of murder in the first degree on a theory of felony-murder, two counts of armed robbery, and illegal possession of a firearm. He filed a motion for a new trial, which was later revised, and denied. His appeal from the denial of his motion for a new trial has been consolidated with his direct appeal. Also before us is the trial judge's refusal to consider the defendant's amended motion for a new trial.

On appeal, the defendant claims that he is entitled to a new trial because (1) the Commonwealth lost the victim's clothing; (2) the judge improperly interfered with the cross-examination of a Commonwealth witness; (3) the judge improperly accepted a witness's invocation of the privilege against self-incrimination; (4) the prosecutor's closing argument was based on speculation and facts not in evidence; and (5) the judge committed error in various instructions. He also alleges error in (6) the denial of his motion for a new trial, which alleged ineffective assistance of counsel; (7) the judge's refusal to consider his amended motion for a new trial; and (8) the imposition of a duplicative sentence. Finally, he asks us to exercise our power under G. L. c. 278, § 33E, to reverse his murder conviction. Except for one conviction of armed robbery, which also served as the predicate felony for the murder conviction, we affirm the convictions and decline to exercise our power under § 33E to reduce the degree of guilt or grant a new trial.

1. Background. On June 25, 1994, the defendant and Jamal Butler agreed to rob an unspecified drug dealer later that day. The defendant brought a friend with him to the designated meeting place. The three men went to the home of Butler's girl friend, where Butler paged the victim, Ryan Edwards, whom he knew, and knew to be a cocaine dealer. Edwards's brother, Alfred Clarke, answered the page and passed the telephone to Edwards. The defendant tried to arrange to buy some cocaine, but Edwards refused to deal because he did not know the defendant. Following a brief argument, the defendant hung up. Butler paged the victim a second time and spoke with Clarke, who knew him. Butler arranged for the defendant to buy one ounce of cocaine from Edwards for $850 at the McDonald's restaurant on Warren Street in the Roxbury section of Boston, where the parties agreed to meet within one-half hour. At the McDonald's parking lot, Butler entered Edwards's car and sat in the back seat. Edwards was in the driver's seat and Clarke sat in the front passenger seat. Edwards showed Butler the cocaine and Butler said that he was "going to get my man," meaning the defendant, who was to deliver the money. Butler returned to the defendant's car and told him to "go handle his business." The defendant went over to Edwards's car and sat in the rear seat. Edwards drove out of the parking lot onto Warren Street because he was concerned about being seen by security personnel. The defendant pulled out a gun and said, "Keep driving or I'll kill both of you." He ordered Clarke to turn over his cash, pager, and the bracelet he was wearing. He then ordered Clarke to get out of the car. Edwards pulled over and Clarke got out. As the car drove off, Clarke heard a gunshot and saw a flash inside the car. He waved down a police cruiser and told the officers, "They shot my brother."

At some point the defendant got out of Edwards's car. Edwards eventually stopped his car in a parking area on Albert Street, approximately five blocks from the McDonald's restaurant, and "revv[ed]" the engine. An off-duty Boston police officer who was visiting a nearby home heard two gunshots and saw Edwards's car pull into the parking area. He went outside to investigate. Edwards told him that he had been shot. The officer telephoned 911. Edwards told the responding officer that he had been shot by someone outside the car. Edwards was taken to Boston City Hospital, where he died a short time later. An autopsy revealed that a single bullet entered Edwards's body about six inches below his right armpit, traveling nearly straight across his torso, slightly downward, through his diaphragm, liver, aorta, and left kidney, causing death. Because Edwards's clothing had been lost by hospital personnel, it could not be determined whether he had been shot at close range.

The next day the defendant gave Butler one-half the cocaine he took from Edwards. He also admitted that he shot Edwards. When Butler asked why, the defendant said that he wanted "to make it look good." A shell casing found on the front passenger seat of Edwards's car had been discharged from a .25 caliber automatic weapon. The bullet recovered from Edwards's body was consistent with a .25 caliber bullet. The murder weapon was never found. The defense seized on Edwards's words to the effect that he had been shot by someone outside the car; the testimony of the off-duty officer who heard two shots fired; and the fact that Edwards's clothing had been lost and could not be analyzed for the presence of gun powder residue to determine whether Edwards had been shot at close range. The defense also tried to depict Butler and Clarke as unworthy of belief, based on their involvement with drugs, their criminal records, prior inconsistent statements, and possible motives to lie. Defense counsel also implied that Clarke might have killed Edwards with a .25 caliber handgun he owned.

2. Lost evidence. The defendant argues that he is entitled to a reversal of his murder conviction and a dismissal of the indictment because the Commonwealth failed to preserve Edwards's clothing, thereby depriving him of a fair trial and the opportunity to present evidence favorable to his cause. The defendant raises the issue for the first time on appeal, so we consider whether any error caused a substantial likelihood of a miscarriage of justice. See Commonwealth v. Cintron, 438 Mass. 779, 783-784 n.2 (2003).

Detective John Brazil had gone to the emergency room at Boston City Hospital shortly after the shooting to recover Edwards's clothing, but the clothing was nowhere to be found. Because the clothing was never in the possession of the prosecutor or the police, there was no breach of duty for which the Commonwealth may be held responsible. See Commonwealth v. Donahue, 396 Mass. 590, 596 (1986), quoting Commonwealth v. Liebman, 379 Mass. 671, 675 (1980). There has been no showing that medical personnel at Boston City Hospital were members of the prosecutor's staff or had "participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to his office." Commonwealth v. Woodward, 427 Mass. 659, 679 (1998), quoting Commonwealth v. St. Germain, 381 Mass. 256, 261-262 n.8 (1980). Where the evidence shows only that Detective Brazil attempted to secure the clothing but was unable to obtain it for reasons not attributable to him, the Commonwealth is not culpable for the loss and should not be sanctioned. Contrast Commonwealth v. Donahue, supra at 599-602. The loss of the evidence did not prevent the defendant from arguing that Edwards had been shot from outside the car, but instead allowed him to make the argument.

3. Interference with cross-examination. The defendant contends that the judge improperly interfered with his right to cross-examine a Commonwealth witness, Judith Richards, in violation of his rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. There was no objection, and the defendant acknowledges that the standard of review is whether any error created a substantial likelihood of a miscarriage of justice.

Richards, the sister of Clarke and Edwards, had testified that approximately one month after Edwards was killed, she discovered a gun in the attic, activated the safety, placed the gun in a lunch box, and then threw the lunch box in the trash. The Commonwealth had offered this testimony to explain what happened to the .25 caliber handgun Clarke said he acquired after Edwards was killed. On cross-examination, Richards was asked what kind of gun she threw out, and answered that she could not remember. Defense counsel held up a .38 caliber semiautomatic handgun and a .25 caliber automatic handgun and asked which gun more closely resembled the one she threw out. The judge interrupted and said, "We don't want you to guess, though. If you don't have a memory, just tell us, please." Richards answered that she did not remember.

The judge did not improperly limit the defendant's right to cross-examine the witness, and he did not guide the witness's testimony or put words in her mouth, as the defendant argues. The right to cross-examine is not absolute, but is subject to the judge's broad discretion. See Commonwealth v. Jordan, 439 Mass. 47, 55 (2003) (cross-examination calling for speculation properly excluded). The witness said she could not remember what type of gun it was. Defense counsel's next question was improper for two reasons: it assumed a fact (that the witness had a memory of the type of gun she discarded) not in evidence, see Reardon v. Boston Elev. Ry., 311 Mass. 228, 231 (1942), and it was confusing because it asked the witness to testify about something for which she said she had no memory.¹ The judge properly allowed Richards to answer after satisfying himself that she understood that her responsibility was to answer based on her memory, and not on speculation. Cf. Commonwealth v. Hoffer, 375 Mass. 369, 376 (1978); Commonwealth v. Walker, 42 Mass. App. Ct. 14, 19 (1997) (judge, in refusing to permit defense couns...