Commonwealth v. Mejia

• Decision Date: 08 September 2015
• Docket Number: No. 11–P–945.,11–P–945.
• Parties: COMMONWEALTH v. Browning M. MEJIA.
• Court: Appeals Court of Massachusetts

88 Mass.App.Ct. 227

36 N.E.3d 612

COMMONWEALTH

v.Browning M. MEJIA.

No. 11–P–945.

Appeals Court of Massachusetts, Barnstable.

Argued Dec. 4, 2014.

Decided Sept. 8, 2015.

Rosemary Curran Scapicchio (Jillise McDonough with her), Boston, for the defendant.

Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth.

Present: COHEN, FECTEAU, & MASSING, JJ.

Opinion

COHEN, J.

On a cold, snowy evening in January, 2009, a group of unidentified individuals dressed in black opened fire on a Chevrolet Impala parked on Pontiac Street in Hyannis. The occupants of the vehicle, two men and two women, were awaiting the return of the defendant, Browning Mejia, to complete a drug transaction. Both of the male occupants were shot and wounded ; the female occupants were unharmed.

In connection with this incident, the defendant was indicted on two counts of assault and battery by means of a dangerous weapon, pursuant to G.L. c. 265. § 15A(b ), and four counts of armed assault with intent to murder, pursuant to G.L. c. 265, § 18(b ). At the conclusion of the defendant's Superior Court trial, the case was submitted to the jury on joint venture instructions in accordance with Commonwealth v. Zanetti, 454 Mass. 449, 467–468, 910 N.E.2d 869 (2009). The jury found the defendant guilty of both counts of assault and battery by means of a dangerous weapon, and not guilty of the remaining charges.

On appeal, the defendant's principal claims relate to the admission of evidence of a handgun linked to the shooting, and the admission of excerpts from recorded telephone calls that he made from jail. We affirm.

Background. We briefly summarize the trial evidence relevant to the issues presented, reserving further details for later discussion.

On January 15, 2009, Christine Ferreira, Kristen Asack, Tom Walwer, and Neiyamia (Neil) Jackson spent the late afternoon and early evening together, driving from place to place in Walwer's black Chevrolet Impala.¹ After going to the Cape Cod Mall, the group decided to buy some marijuana. Ferreira and Asack both

knew the defendant socially and, as corroborated by telephone company records, called his cellular telephone (cell phone) to arrange to purchase marijuana from him. The defendant returned the call from a different number associated with a prepaid cell phone, which, unlike the number the women first called, was not registered to his name. After missing each other several times, the defendant and Ferreira finally spoke. The defendant instructed her to meet him on West Main Street by the Cape Glen condominiums, and Walwer drove the foursome to that location. The defendant, who was wearing black clothing, came over to the car and gave Ferreira a bag of marijuana in exchange for money. The group then left and began driving to Yarmouth.

After examining the marijuana, Ferreira and Asack called the defendant to complain about it. The defendant said that he had given them the wrong bag, and that they should meet him on Pontiac Street where he would exchange it. Walwer proceeded to Pontiac Street, which is a dead-end road, drove to the end, and turned the car around so that it was facing the top of the street. By this point, it was close to 7:00 p.m .

The defendant approached wearing a black, puffy North Face jacket² and a ski mask that was pulled down so that his face was visible. After patting his pockets, the defendant said that he must have left the bag of marijuana in the house. He told the group that he would be right back, and walked away.

Five to seven minutes later, several individuals³ wearing black North Face jackets appeared at the top of the street and began shooting at the Impala. According to Ferreira, as many as fifteen to twenty gunshots were fired. The windshield shattered, and Walwer and Jackson, who were in the front seat, both suffered gunshot wounds. Ferreira and Asack, who were crouched down in the backseat, were not hurt. Despite his injuries, Walwer was able to drive the group to Cape Cod hospital.

The defendant was arrested on February 10, 2009. At the time of his arrest, he was wearing a black North Face “winter coat.” A

dark-colored neoprene ski mask was found in the vehicle in which he was riding.

There was evidence suggesting some preexisting antagonism between individuals associated with the defendant, and Walwer and Jackson. Ferreira testified to an episode in December, 2008, at the Dunkin Donuts where she worked. Although the defendant was not present, there was “tension” between two men whom Ferreira knew to be friends of the defendant, and Walwer, Jackson, and Ferreira's boyfriend.

There also was evidence that, a few days after the crime, the defendant was seen coming and going on one occasion from a residence where a firearm linked to the shooting later was found. Detective Brian Guiney testified that, in the late evening of January 19, 2009, he was in the area of a residence located at 55 Nautical Way in Hyannis, which is two and one-half miles from Pontiac Street. He saw the defendant leave that residence through the rear sliding door, walk down a wooded path, and then return and enter the house through the same rear door. Guiney further testified that, a few days later, on January 23, 2009, he was present at 55 Nautical Way when police removed a .32 caliber Colt semiautomatic handgun and a box of .32 caliber ammunition from 55 Nautical Way. Both the handgun and the ammunition were discovered in the basement; the handgun was found in the rafters, and the ammunition behind a couch.

In cross-examining Guiney, defense counsel established that two individuals other than the defendant had been charged with, and convicted of, possession of the handgun and ammunition found at 55 Nautical Way. On redirect examination, Guiney was asked but did not recall whether he had seen the defendant with those individuals within two weeks before or after the date of the shooting.

Ballistics testing revealed that the handgun was the source of a spent projectile and four discharged cartridge casings found at the crime scene. However, there was no forensic evidence tying the defendant to the handgun or related items. No fingerprints were found on either the handgun or the box of ammunition. A partial deoxyribonucleic acid (DNA) profile retrieved from the discharged cartridge casings was determined to be from an unknown female source. Swabs from the handle, trigger, and slide of the handgun showed a mixture of DNA from three individuals, but comparison with the defendant's DNA profile was inconclusive.

More than a year after the shooting, in the summer of 2010, the defendant approached and spoke to Ferreira. At trial, Ferreira

testified that he said, “I heard what happened. I'm sorry that happened to you.” She also denied ever reporting the conversation differently to the police. The Commonwealth later called Detective Colin Kelley, who testified that Ferreira had told him that the defendant had “apologized,” saying that “he didn't mean to shoot at her and [Asack], and that they weren't the intended target.” Kelley's version of Ferreira's statement was received for impeachment purposes, and was accompanied by a limiting instruction.

During the testimony of an employee of the Barnstable County sheriff's department, the Commonwealth played recorded excerpts from four telephone calls made by the defendant from jail in February, 2009. Prior to trial, the Commonwealth had argued, and the judge agreed, that the jury could infer from the calls that the defendant was orchestrating efforts to influence the testimony of a female witness in this case, and that the evidence, therefore, was admissible to show consciousness of guilt.

The defense did not call any witnesses, but during his cross-examination of the Commonwealth's witnesses, defense counsel tried to cast doubt on the defendant's involvement in the shooting. Counsel confronted Ferreira with her grand jury testimony identifying an individual named Denzel Chisholm as the person who had sold them the marijuana. Counsel also pointed to a potential third-party culprit who lived close to Pontiac Street and had been the subject of a drug investigation. In his opening statement, counsel indicated that the defendant would prove that he was home with his mother at the time of the shooting, but no such evidence was forthcoming.

Discussion. 1. Handgun evidence. The defendant argues that the Commonwealth failed to show a sufficient connection between him and the .32 caliber Colt semiautomatic handgun found at 55 Nautical Way, and, therefore, “evidence of this firearm” should have been excluded.⁴

a. Standard of review. As a threshold matter, we must determine the appropriate standard of review. Although both the defendant and the Commonwealth appear to assume that the issue was properly preserved, the record demonstrates that it was not.

Prior to trial, the Commonwealth filed a motion in limine seeking to admit “evidence of defendant's access to firearms and ammunition.” The motion identified the following proposed evidence:⁵ (1) that, on January 19, 2009, surveillance officers saw the defendant leaving and returning to 55 Nautical Way after completing the sale of oxycodone to a cooperating confidential informant; (2) that, on January 23, 2009, Barnstable police executed a search warrant at 55 Nautical Way and found a .32 caliber handgun and .32 caliber ammunition; and (3) that the handgun seized from 55 Nautical Way was the same firearm that discharged shell casings and a spent projectile at the crime scene. In support of the motion, the Commonwealth argued, inter alia, that two brothers who lived at 55 Nautical Way were the defendant's associates in a narcotics distribution business operated out of that location, but no such evidence was introduced at trial.

The defendant filed a written opposition denying his involvement in any controlled sale and further denying that he had entered or returned to 55 Nautical Way as alleged. The defendant also claimed entitlement...