Commonwealth v. Middlemiss

• Decision Date: 17 June 2013
• Docket Number: SJC–10960.
• Citation: 989 N.E.2d 871,465 Mass. 627
• Parties: COMMONWEALTH v. Christopher MIDDLEMISS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

465 Mass. 627

989 N.E.2d 871

COMMONWEALTH

v.Christopher MIDDLEMISS.

SJC–10960.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 7, 2013.

Decided June 17, 2013.

David Keighley, Fairhaven, for the defendant.

Casey E. Silvia, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, DUFFLY, & LENK, JJ.

CORDY, J.

In the early morning hours of July 4, 2006, the defendant, Christopher Middlemiss, and Joseph Morgan broke into Alberto Cintron's apartment while he was not at home and lay in wait for him to return so they could rob him. Their scheme was foiled when, on his arrival, Cintron recognized the defendantand resisted the robbery. Amidst the ensuing struggle, Cintron was shot five times and died en route to the hospital. Following an investigation, the defendant and Morgan were arrested, indicted, and tried separately.¹ On May 27, 2010, the defendant was convicted of murder in the first degree on the theory of felony-murder with armed robbery while masked as the predicate felony, and unlawful possession of a firearm in violation of G.L. c. 269, § 10 ( a ). The trial judge sentenced the defendant to life in prison on the murder conviction and imposed an eighteen-month concurrent sentence on the firearm conviction.

On appeal, the defendant argues that the judge erred in admitting statements made by the victim to both a 911 operator and a responding police officer that identified the defendant by name and indicated he lived in an apartment downstairs from the victim's apartment. The defendant contends that the statements to the responding police officer should not have been admitted because they were hearsay not falling within a recognized exception. He also posits that the statements made to the 911 operator were testimonial in nature and, thus, that their admission in evidence violated the defendant's right to confrontation under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.² Additionally, the defendant argues that the judge erred in declining to apply the doctrine of judicial estoppel to preclude the Commonwealth from arguing that the victim's intoxication and physical distress did not affect his ability to identify the defendant as one of the shooters, where the Commonwealth had previously argued at Morgan's trial that the victim's identification of Morgan as an “Asian kid” had been unreliable. Finally, the defendant urges this court to invoke its plenary power under G.L. c. 278, § 33E, to grant a new trial or, alternatively, to reduce the verdict on the murder charge.

We conclude that the victim's statements to the 911 operator were properly admitted as excited utterances and were nontestimonial insofar as they were made and solicited for the primary purpose of enabling the police to assist in meeting an ongoing emergency. We also conclude that his statements to the police officer at the scene were admissible as dying declarations and consequently not subject to the constraints of the confrontation clause. Finally, we reject the defendant's judicial estoppel contention because the positions taken by the Commonwealth at the defendant's trial and at Morgan's trial with respect to the reliability of the victim's identifications are distinct and not mutually exclusive. Because we find no reversible error and discern no basis to exercise our authority under G.L. c. 278, § 33E, we affirm the defendant's convictions.

Trial. We summarize the facts the jury could have found, reserving certain details for our discussion of the issues raised. Among the witnesses at trial were Scott Russell and Colin Ferderer, both admitted confederates of the defendant and Morgan in the plan to rob the victim.³ Russell and Ferderer testified that Morgan and Russell had recently moved into an apartment downstairs from the victim's and that the defendant was there often. They also testified that Morgan, Russell, and the defendant had met the victim and his dog and that the victim was known to have “a lot” of money from selling drugs. On the night of the planned robbery, Ferderer provided the defendant and Morgan with firearms. The defendant and Morgan then donned hooded sweatshirts and bandanas to disguise themselves and, by means of a key procured by a friend of the victim's girl friend, entered and concealed themselves in the victim's apartment to await his arrival. Meanwhile, Russell and Ferderer waited in a getaway vehicle.

At some point after 2 a.m., the victim arrived home with a friend, Curtis Glenn. Glenn testified at trial to what occurred when he and Cintron entered the apartment to find the two masked robbers. According to Glenn, the victim's dog, which had been locked in the bathroom but let out by the victim, demonstrated familiarity with the defendant, causing the victim to ask, “Chris [Middlemiss], is that you?” An altercation followed, and Glenn heard and saw gunshots as he fled into the victim's bedroom before escaping through the bedroom window.

The defendant's statement, given to police following his arrest, was admitted at trial. In the statement, he confessed to his involvement in the robbery and being armed. He also admitted that the victim looked him straight in the face and said, “Chris?” The defendant claimed that Morgan, not he, fired the shots that killed the victim in the altercation that followed. He further claimed that he did not even know if his gun was loaded.

The victim's 911 telephone call, made as he lay fatally wounded, was also admitted in evidence. In the call, the victim pleaded for help because he had been “shot” and hurt “bad.” In that call, the operator asked the victim, “Do you know who shot you?” to which the victim responded, “Downstairs neighbor, Apartment 2, first floor. His name is Chris.” In response to further inquiry, the defendant said, “And there was an Asian kid with him.”

Finally, the jury heard testimony that Lowell police officers and paramedics responded to the victim's 911 call and, when they entered his apartment, found him lying in a large pool of blood on the floor of the living room. While tending to the victim, the paramedics told Officer Steven Coyle of the Lowell police that the victim was hurt badly and might not live. Coyle relayed this to the victim and asked who shot him. The victim replied, “Chris. He lives downstairs.” The victim also confirmed that the shooter “lived in the same building directly below him.”

After the paramedics left with the victim, police performed a protective sweep of the downstairs apartment based on the victim's statements that the killer could still be in the building. The defendant was not found in the downstairs apartment. The victim died en route to Lowell General Hospital.

Discussion. 1. Admissibility of the victim's out-of-court statements. The defendant contends that the judge erred by admitting in evidence the victim's statements to the 911 operator and Coyle. In order for the victim's out-of-court statements to be admissible, they must each fall within an exception to the hearsay rule under our common-law rules of evidence, Commonwealth v. Beatrice, 460 Mass. 255, 258, 951 N.E.2d 26 (2011)( Beatrice ), and given that the defendant did not have a prior opportunity for cross-examination, the statements must be nontestimonial for the purposes of the confrontation clause of the Sixth Amendment and art. 12. See Commonwealth v. Smith, 460 Mass. 385, 391, 951 N.E.2d 674 (2011).

In a bench order granting the Commonwealth's motion in limine, the judge found by a preponderance of the evidence that the victim's statements to the 911 operator that the person who shot him was the “[d]ownstairs neighbor, Apartment 2, first floor. His name is Chris,” qualified as an excited utterance. The judge also found that the victim's statements to Coyle that he had been shot by a man named “Chris,” who lived in an apartment directly beneath that of the victim, qualified as a dying declaration. We review the judge's admission of the victim's hearsay statements for prejudicial error, Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994), and her finding that those statements did not violate the defendant's right to confrontation for constitutional error, Commonwealth v. Burgess, 450 Mass. 422, 431–432, 879 N.E.2d 63 (2008).

a. Evidentiary objections. On appeal, the defendant does not challenge the judge's finding that the victim's 911 statements qualified as excited utterances.⁴He does, however, challenge the judge's conclusion that the victim's statements to Coyle qualified as dying declarations. Specifically, he argues that the circumstances surrounding the victim's statements do not objectively indicate that he believed he was going to die.

In homicide prosecutions in Massachusetts, a victim's out-of-court statement may qualify as a dying declaration if the “statement [is] made ... under the belief of imminent death and [the declarant] died shortly after making the statement, concerning the cause or circumstances of what the declarant believed to be the declarant's own impending death or that of a co-victim.” Mass. G. Evid. § 804(b)(2) (2013). See Commonwealth v. Vona, 250 Mass. 509, 511, 146 N.E. 20 (1925). Here, the victim had been shot five times and was lying in a pool of blood. During the 911 call, he repeatedly told the operator to “hurry” and that he was “bad.” When Coyle asked the paramedics whether the victim would live, they responded that they did not know and that he was “in a bad way.” Coyle relayed that prognosis to the victim and told him that he might “succumb” to his injuries. Based on these verbal exchanges, as well as the victim's physical state, the judge reasonably could have inferred that the victim believed his death was imminent at the time he made the statements. In these circumstances, we see no error in their admission as a dying declaration.

b. Confrontation clause. The defendant argues...