Commonwealth v. Molina

• Decision Date: 13 June 2012
• Docket Number: No. 10–P–392.,10–P–392.
• Parties: COMMONWEALTH v. Alexander MOLINA.
• Court: Appeals Court of Massachusetts

81 Mass.App.Ct. 855
969 N.E.2d 738

COMMONWEALTH
v.
Alexander MOLINA.

No. 10–P–392.

Appeals Court of Massachusetts,
Bristol.

Argued Oct. 14, 2011.
Decided June 13, 2012.

[969 N.E.2d 739]

David Keighley, Fairhaven, for the defendant.

David J. Gold, Assistant District Attorney, for the Commonwealth.

Present: MILLS, KATZMANN, & MILKEY, JJ.

MILLS, J.

[81 Mass.App.Ct. 855]A jury convicted the defendant of murder in the second degree, G.L. c. 265, § 1, and two firearm violations, [81 Mass.App.Ct. 856]G.L. c. 269, §§ 10( a ) and 12E. He argues on appeal (a) a violation of Commonwealth v. Miranda, 458 Mass. 100, 105–113, 934 N.E.2d 222 (2010), cert. denied, ––– U.S. ––––, 132 S.Ct. 548, 181 L.Ed.2d 396 (2011), concerning a cash reward to a witness; (b) improper denial of his motion to suppress statements made to the police; and (c) insufficient instruction with respect to “honest but mistaken identification.” We affirm.

Background. James Gauoette (victim) was shot and killed in New Bedford on March 30, 2005, during daylight. Three people saw the events surrounding the shooting. We refer to them by pseudonyms

[969 N.E.2d 740]

as Alice, Barbara, and Claire. Their testimony, although differing in some details, was consistent in part. Alice testified that she heard gunfire, saw the victim lying on the sidewalk, and observed a man with a short-sleeve, mustard colored T-shirt and light colored jeans standing over the victim, hitting him with an object. That man was of medium build with a tanned complexion, but she could not see his face. He ran down Salisbury Street.

Barbara, who was acquainted with the defendant, testified that she was talking with him around 5:00 p.m. on a porch in the vicinity of the shooting. He was wearing jeans and a yellow shirt. She observed “Jimmy” (the victim) approach the defendant, saying, “I'm just here to talk.” She saw the defendant go to the trunk of his car, which was parked nearby, retrieve a gun and shoot Jimmy. Barbara saw the defendant ten to fifteen minutes later, after police and medical personnel had arrived, but he had changed into a brown jogging outfit.

Claire testified that she heard a gunshot and, looking out of her window, saw a man walk across Salisbury Street to the corner of Ruth and Salisbury Streets and shoot the “kid” lying on the sidewalk four times before running back across the street and giving the gun to another man, who threw it inside a green car parked on Salisbury Street.

Claire knew the green car to have been previously driven by the defendant, whom she knew from the neighborhood. She saw the shooter and his friends running away and, some twenty or thirty minutes later, saw the shooter come up Salisbury Street and go into a beige house, emerging in different clothing, having [81 Mass.App.Ct. 857]changed to a brown sweatshirt. Claire identified the defendant in court as the shooter.

At the police station, the defendant was described as wearing a brown corduroy or velour suit. Other trial testimony, principally from police witnesses, and findings by the judge on the motion to suppress will be related as necessary to our discussion of the issues.

Discussion. 1. Cash reward to Claire. In Commonwealth v. Miranda, 458 Mass. at 105–113, 934 N.E.2d 222, decided after the trial in this case, the Supreme Judicial Court addressed, for the first time, the receipt of cash rewards by witnesses. There two witnesses had received cash rewards from the New Bedford Chamber of Commerce (chamber of commerce), which had established a cash reward program intended to assist in the resolution of unsolved homicide cases. Id. at 100–102, 105–106, 934 N.E.2d 222. In this case Claire received a cash reward from the very same program.

In Commonwealth v. Miranda, supra at 112, 934 N.E.2d 222, the court, exercising its superintendence authority, prospectively forbade a prosecutor's participation in a cash reward scheme—a directive not at issue in this case. The court, id. at 109, 934 N.E.2d 222, also adopted the four procedural safeguards set forth in United States v. Levenite, 277 F.3d 454, 462 (4th Cir.), cert. denied, 535 U.S. 1105, 122 S.Ct. 2312, 152 L.Ed.2d 1066 (2002), which we include in the margin.¹ In this case, the

[969 N.E.2d 741]

second and fourth standards are clearly satisfied: defense counsel conducted a thorough cross-examination of the witness, and there is no evidence that the Commonwealth was sponsoring or suborning perjury. The asserted absence of the other two safeguards, pretrial disclosure and a “heightened scrutiny” instruction, form the basis of the defendant's request for a new trial.

First, as to the nondisclosure, we summarize the circumstances.[81 Mass.App.Ct. 858]On the second day of trial, after the recross-examination of Claire, the prosecutor requested a sidebar noting Claire's participation in the reward program and expressing concern that Claire had not been examined with respect to it. It is obvious from the record that the Commonwealth sent, or intended to send, pretrial notice and that through inadvertence or otherwise, with no evidence of subterfuge, the defendant's attorney had not received it. Counsel and the judge examined at sidebar a similar or identical letter, from a similar arrangement in another case. Between the judge and the attorneys, a solution was proposed: the witness would be examined as to the reward arrangement (and she was), and the attorneys agreed to a stipulation as to Claire's eligibility for a further reward. Days later, again at sidebar, defense counsel represented that the chamber of commerce issue had been “put to bed or to rest,” that he was satisfied with the information that he obtained, and that the court need not address it further.

The defendant argues on appeal that, because Commonwealth v. Miranda had not yet been decided, trial counsel could not have validly waived claims arising out of that decision, including the possible failure to disclose the reward as a prong of the due process safeguards adopted in Commonwealth v. Miranda, 458 Mass. at 109, 934 N.E.2d 222. However, the duty to disclose a reward was not a new duty created by Commonwealth v. Miranda. Pursuant to rule 14 of the Massachusetts Rules of Criminal Procedure, a prosecutor must disclose “all promises, rewards or inducements made to witnesses the party intends to present at trial.” Mass.R.Crim.P. 14(a)(1)(A)(ix), as amended, 444 Mass. 1501 (2005). Thus, when the defendant's counsel reached an agreement with the trial prosecutor about how to handle the delayed disclosure and pronounced himself content with the arrangement, he was alert to the fact that he was waiving a potential claim. Surely he could have requested relief (for example, a mistrial or continuance), but he elected to proceed with the trial already underway and to craft a remedy in commendable cooperation with the trial prosecutor.

The second safeguard that the defendant claims is not present here is the instruction that the jury weigh with particular care testimony by a witness receiving a reward. In [81 Mass.App.Ct. 859]Commonwealth v.Miranda, supra at 110–111, 934 N.E.2d 222, when each witness receiving a reward testified, the judge instructed the jury “to scrutinize the testimony with ‘particular care’ because the reward was ‘contingent on there being a guilty verdict.’ ” In addition, the judge repeated this instruction in her final charge to the jury. Id. at 111, 934 N.E.2d 222. The court declared that this satisfied the requirement that “the court must instruct the jury about the heightened scrutiny to be given testimony provided under a fee payment arrangement.” Id. at 109, 934 N.E.2d 222, quoting from United States v. Levenite, supra at 462. However, that the particular instruction in Commonwealth v. Miranda was satisfactory does not mean that it represents

[969 N.E.2d 742]

a minimum level of instruction necessary to meet the requirement.

Here, while the judge gave no instruction immediately following Claire's testimony, the judge did reference the issue in the final charge pursuant to defense counsel's request. At the end of the standard instruction on witness credibility, the judge added:

“In addition, you may also consider a witness's motive for testifying and whether they display any bias in testifying and whether the witness has an interest in the outcome of the case.”

While this instruction does not specifically reference the chamber of commerce reward program, the jury would have been alerted to its relevance to the program because they had heard testimony about the receipt of the reward earlier in the trial and had just been reminded of it in the defense counsel's closing argument.

The instruction may not be as extensive as the instruction given in Commonwealth v. Miranda, 458 Mass. at 109, 934 N.E.2d 222, but it does go to the same basic premise that the Supreme Judicial Court addressed when it required that the jury be instructed to give “heightened scrutiny.” We view the instruction here generously, inasmuch as the trial preceded the opinion in Commonwealth v. Miranda. Cf. Commonwealth v. Collins, 374 Mass. 596, 599, 373 N.E.2d 969 (1978) (notwithstanding retroactive effect of new constitutional rule on jury instruction language, Supreme [81 Mass.App.Ct. 860]Judicial Court as matter of State practice will give “more careful scrutiny” to jury instructions following date of opinion).

Jury instructions are not required to use specific words as long as the ideas are adequately conveyed. Commonwealth v. Deane, 458 Mass. 43, 58–59, 934 N.E.2d 794 (2010), citing Commonwealth v. Sherry, 386 Mass. 682, 696–697, 437 N.E.2d 224 (1982). Although the instruction does not expressly require the jury to view the testimony of a compensated witness with heightened scrutiny, the instruction does alert the jury to the issues of motive, bias, and possible interest in the outcome of the case. The natural result of the instruction is that the jurors receiving it would scrutinize more closely the...