Commonwealth v. Wallace

Decision Date22 July 2021
Docket Number19-P-1560
CourtAppeals Court of Massachusetts
Parties COMMONWEALTH v. Timi WALLACE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Superior Court, the defendant was convicted of murder in the second degree on a theory of joint venture.2 In this direct appeal of his conviction, the defendant raises a number of challenges, including to the judge's evidentiary rulings and the prosecutor's closing argument. We affirm.

Background. The defendant is one of seven brothers; in 2002, he and one of his younger brothers, Nickoyan, were indicted for the March 26, 2000 murder of another of their brothers, Tasfa.3 Tasfa was shot multiple times through the closed door to his apartment. After the murder, the defendant remained at large, using a false identity until he was arrested in 2004; Nickoyan had been arrested several years earlier. The defendant was tried in 2017.

Discussion. 1. Witness's prior statements and testimony. The Commonwealth called Ojecko Wallace, another of the defendant's, Nickoyan's, and the victim's brothers, as a trial witness. Over the defendant's objections, the prosecutor was permitted to use both a statement Ojecko made to the police on the day of the murder and Ojecko's grand jury testimony to impeach him. The defendant did not request a contemporaneous limiting instruction and the judge did not give one.4

When Ojecko repeatedly testified that he did not recall making the statement or giving the testimony with which he was confronted as impeachment, the judge concluded that the witness was feigning a lack of memory and permitted the Commonwealth to introduce certain parts of Ojecko's grand jury testimony (though not his statements to the police) substantively.5 See Commonwealth v. Trotto, 487 Mass. 708, 724 (2021) (reading of grand jury testimony permitted where judge determines witness's memory loss is feigned); Commonwealth v. Sineiro, 432 Mass. 735, 741-742 (2000) ; Commonwealth v. Daye, 393 Mass. 55, 71-75 (1984). The judge prefaced the prosecutor's recitation of Ojecko's grand jury testimony with the instruction that "[t]he passages that [the prosecutor] is about to read to you may be used as substantive evidence" (emphasis added). Then, during closing arguments, the prosecutor read portions of that grand jury testimony to the jury.

a. Limiting instruction. As there is no requirement that a judge give a limiting instruction in the absence of a request, the judge did not err in failing to give, sua sponte, a contemporaneous limiting instruction on the jury's use of the Commonwealth's impeachment evidence. See Commonwealth v. Sullivan, 436 Mass. 799, 809 (2002) ; Commonwealth v. Delong, 60 Mass. App. Ct. 122, 131-132 (2003). We are satisfied that any risk that the jury would misunderstand how to use the impeachment evidence was minimized by the judge's final instructions to the jury, which included guidance on the jury's use of prior inconsistent statements.6 See Commonwealth v. Peno, 485 Mass. 378, 396 (2020).

Likewise, we discern no error in the judge permitting the jury to hear excerpts from Ojecko's grand jury testimony three times, i.e., for impeachment, as substantive evidence, and in the prosecutor's final argument.7 As an initial matter, we are satisfied that in each instance, the repeated testimony was used properly. See Trotto, 487 Mass. at 723 (witness's prior statements and testimony may be introduced for purposes of impeachment); Sineiro, 432 Mass. at 742 (same); Daye, 393 Mass. at 75 (grand jury testimony admissible as probative "provided the witness can be effectively cross-examined as to the accuracy of the statement, the statement was not coerced and was more than a mere confirmation or denial of an allegation by the interrogator, and other evidence tending to prove the issue is presented"); Commonwealth v. Delacruz, 61 Mass. App. Ct. 445, 449 (2004), S.C., 443 Mass. 692 (2005) (no abuse of discretion in permitting prosecutor to read from trial transcript in closing). Furthermore, the judge instructed the jury on the permissible ways in which they could use that evidence, distinguishing prior inconsistent statements and closing arguments from the trial evidence.8 See Commonwealth v. Silva, 482 Mass. 275, 290 (2019) ("The jury are presumed to follow all instructions they are given"). Under the circumstances, we are satisfied that even if there were error here, it "did not influence the jury, or had but very slight effect." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

2. Ineffective assistance of counsel. The defendant argues that trial counsel was ineffective in failing to request a contemporaneous limiting instruction on the use of Ojecko's grand jury testimony, and in failing to seek a curative instruction after an "outburst" by the victim's girlfriend during her trial testimony. Applying the familiar test set out in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) ("whether there has been serious incompetency, inefficiency, or inattention of counsel ... falling measurably below that which might be expected from an ordinary fallible lawyer [and] ... whether it has likely deprived the defendant of an otherwise available, substantial ground of defence"), and mindful that these challenges were not developed in a motion for new trial, but raised for the first time on appeal, we are not persuaded. Cf. Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002) ("an ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge").

a. Failure to request curative instruction. Given our conclusion that there was nothing improper in the use of Ojecko's prior statements and grand jury testimony, we reject the defendant's claim that trial counsel was ineffective in failing to request a contemporaneous curative instruction. See Commonwealth v. Garvin, 456 Mass. 778, 783 (2010) (to prevail on ineffective assistance claim, "the defendant must show that there was an error").

b. Failure to request limiting instruction after witness "outburst." Where the defendant has not shown that counsel's failure to request a curative instruction after an "outburst" by the victim's girlfriend on the witness stand was a mistake, rather than a reasonable tactical decision, we also reject the defendant's ineffective assistance argument on that basis.

At trial, the victim's girlfriend, Ingride Francoeur, testified for the prosecution.9 Pressed on cross-examination about the credibility of her claim to have been afraid of the defendant after the murder, she responded by pointing to the defendant and saying, "He killed my husband."10 The defendant moved to strike the statement, and the judge did so; counsel did not request a curative instruction. Instead he continued with his cross-examination, and elicited Francoeur's concession that, in fact, she "never saw who pulled the trigger" to fire the fatal shots.

The defendant has not shown counsel to have been ineffective. Once Francoeur's accusatory statement had been stricken, trial counsel could reasonably have determined that requesting and obtaining a limiting instruction would simply highlight the statement in the jurors’ minds, and that the more prudent approach would be to focus on undermining it, as counsel ultimately did. A strategic decision amounts to ineffective assistance "only if it was manifestly unreasonable when made." Commonwealth v. Martin, 427 Mass. 816, 822 (1998). Counsel's approach to the outburst was not manifestly unreasonable, and consequently, the defendant's ineffective assistance claim fails.

3. Prosecutor's closing argument. The defendant next challenges several aspects of the prosecutor's closing argument as reversible errors, including the prosecutor arguing facts not in evidence, misstating the evidence, improperly appealing to juror sympathy, and improperly suggesting his personal opinion on the defendant's guilt. The defendant preserved his claims as to the misstated evidence, facts not in evidence, and improper appeal to juror sympathy; as to those issues, we review for prejudicial error.11 See Commonwealth v. Alvarez, 480 Mass. 299, 305-306 (2018) ; Commonwealth v. Silva–Santiago, 453 Mass. 782, 807–810 (2009). The portions of closing argument to which the defendant did not object but challenges now on appeal -- the prosecutor's arguments concerning the defendant's consciousness of guilt -- we review only for a "substantial risk of miscarriage of justice." Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). "We consider statements made during closing argument ‘in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury.’ " Commonwealth v. Moffat, 486 Mass. 193, 201 (2020), quoting Commonwealth v. Felder, 455 Mass. 359, 368 (2009).

a. Facts not in evidence and misstatements of fact. "A prosecutor must limit comment in closing statement to the evidence and fair inferences that can be drawn from the evidence." Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 234 (2016), quoting Commonwealth v. Cole, 473 Mass. 317, 333 (2015). The defendant highlights several parts of the prosecutor's closing argument, alleging that in each instance, the prosecutor misstated the evidence, and that, taken together, these statements amount to an improper appeal to the jury's sympathies. We review each in turn.

We discern no error in the prosecutor's argument that "[w]e'll never know how long [the victim] suffered" after being shot. As defendant's trial counsel recognized, at the time of trial, that argument was relevant to the Commonwealth's theory of murder in the first degree on the basis of extreme atrocity and cruelty,12 see Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983) (consciousness and degree of victim's suffering relevant to determination whether murder committed with extreme atrocity and cruelty), and the statement was consistent with the medical examiner's testimony that...

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