Commw. v. Jordan

• Decision Date: 08 March 2000
• Docket Number: P-1103
• Citation: 733 N.E.2d 147,49 Mass. App. Ct. 802
• Parties: (Mass.App.Ct. 2000) COMMONWEALTH vs. JOSEPH RAY JORDAN. No.: 96- Argued:
• Court: Appeals Court of Massachusetts

Page 147

733 N.E.2d 147 (Mass.App.Ct. 2000)

COMMONWEALTH vs. JOSEPH RAY JORDAN.

No.: 96-P-1103

Massachusetts Court of Appeals, Hampshire

Argued: March 8, 2000.

Decided: August 10, 2000.

[Copyrighted Material Omitted]

John M. Thompson for the defendant.

Judith Ellen Pietras, Assistant District Attorney, for the Commonwealth.

Present: Porada, Dreben, & Duffly, JJ.

DREBEN, J.

A woman in Florida, Rochelle Kaminski, telephoned Massachusetts State police stating that her best friend, Carol Leith, had been kidnapped and was going to be killed. Leith was being held in a car by the defendant and one Edgar Smith on route 91 in Massachusetts, going north. Alerted by the call, police officers found Leith's empty car in a rest area. Nearby, they saw someone waving in a parked car. When that vehicle began to move, the officers followed and forced it to stop. Huddled in the back seat was a woman (Leith), crying, shaking, and mouthing the words "help me, help me." The defendant, who was driving, was arrested as was Smith, seated in the front passenger seat. Each was subsequently charged with kidnapping, assault with a dangerous weapon, conspiracy to commit murder, and assault and battery. The men were tried separately¹; the defendant was found guilty on all four charges. Only the defendant's appeal is before us. He claims numerous errors, including violations of his right to counsel, insufficient evidence to convict him of conspiracy to commit murder,² improper closing argument by the prosecutor, and improper instructions by the trial judge. We affirm his convictions.

1. Facts. Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the jury were warranted in finding the following. Leith, at the request of her brother, the defendant, drove from Florida to Massachusetts to help him find his four year old twins as his former wife would not let him see them. After spending several days scouting, in her car, the homes of the defendant's former wife and of his former father-in-law, Leith became suspicious that the defendant was about to do something illegal. When she informed him that she was going to return to Florida, he told her that she could not leave until the job was done. He threatened to kill her husband and two of her friends if she left. Later, each in their separate cars drove to a rest stop. When communication by car phone became difficult, the defendant induced Leith to get in the back seat of his car. Once there, he wrenched her keys from her hands and asked Smith to lock the doors. While Smith held Leith down, the defendant punched her in the face. He asked Smith for a knife, put it in his fist and hit Leith over the head. He told her that she was hurting his kids and that he was going to kill her. Smith, at the defendant's bidding, took a pillow, shoved Leith down onto the seat, and covered her face. She briefly lost consciousness.

When she came to, she heard the defendant tell Smith that she should be killed with a baseball bat and heard "both of them" discussing that she should be dumped fifty feet in the woods. While they were driving, the defendant sometimes reached back and hit her as Smith held her. When Leith begged Smith to let her go, Smith replied, "We've got to get rid of this screaming bitch."

They subsequently returned to the rest stop where Leith's car was parked. The defendant suggested to Smith, "Maybe we should just stab her and dump her in the back seat." Smith demurred, saying, "If we kill her now, then we'll have to leave off to Chicago now, and I'm F-ing tired. So let's wait until morning." The defendant then added that Leith had "better thank him [Smith] for letting [her] live until morning."

While at the rest stop, the defendant, using his car phone, called Leith's friend Rochelle Kaminski in Florida and gave Leith the phone to tell Kaminski what a mistake she, Leith, had made by not finding his children. When Leith blurted out that she was on route 91 north, the defendant snatched the phone and told Kaminski that he would kill her after he killed Leith. Kaminski testified that she heard another male take the phone and say, "they were going to kill Carol and they were coming to kill me next." Leith overheard Smith talking to Kaminski. As indicated earlier, Kaminkski called the police, and the two men were apprehended.

2. Sufficiency and admissibility of evidence on conspiracy to murder charge. We treat these issues first as they, more than the others, are dependent on the foregoing evidence. A conspiracy requires a "combination of two or more persons, by some concerted action [or plan], to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means." Commonwealth v. Hunt, 4 Met. 111, 123 (1842). Here, the Commonwealth had to prove that the defendant combined with Smith with the intention of murdering Leith. Commonwealth v. Cantres, 405 Mass. 238, 244 (1989).

The conversations between the defendant and Smith recounted by Leith were not, as argued by the defendant, solely attributable to the defendant. In context, Smith's comment concerning the need to get rid of Leith could reasonably be viewed as neither a joking nor an exaggerated remark. His statements to Kaminski and his comment about postponing the murder could reasonably be considered by the jury as indicating the intent of both Smith and the defendant to act in concert to murder Leith.

In his supplemental brief, the defendant faults his trial counsel for not objecting to the introduction of Kaminski's testimony on the ground that what Smith stated to her was inadmissible hearsay. He claims that the Commonwealth failed to establish by evidence independent of Smith's hearsay statements that Smith was involved in the conspiracy to murder Leith, and that it was therefore error to admit Smith's statements under the coconspirator exception to the hearsay rule.³ There was, however, sufficient nonhearsay evidence to warrant a reasonable inference that the two men who had jointly committed other offenses also had conspired to commit murder. See Commonwealth v. Nascimento, 421 Mass. 677, 681 (1996). See also Commonwealth v. Borans, 379 Mass. 117, 145-146 n.26 (1979). These other offenses, such as Smith almost suffocating Leith, locking her in the vehicle, holding her down while the defendant punched her, and giving the defendant a knife for use against Leith were also indicative of the conspiracy to commit murder. "[T]he mere fact that evidence tends to prove the commission of some other crime does not render it inadmissible as long as it is relevant to the crime being tried." Id. at 148, quoting from Commonwealth v. Eagan, 357 Mass. 585, 589 (1970). Thus, even if the recounting of Smith's statements is considered to be hearsay, the testimony was admissible under the coconspirator exception to the hearsay rule.

Moreover, and more significant, both Kaminski's and Leith's testimony as to Smith's statements did not involve hearsay. Smith's words themselves are evidence of a legal relationship and are admissible not for the truth of the matters asserted, "but as proof of an 'operative' statement, i.e., existence of a conspiracy. As such, [they are] not hearsay." Commonwealth v. McLaughlin, 431 Mass. 241, 246 (2000). Telecon, Inc. v. Emerson-Swan, Inc., 17 Mass. App. Ct. 671, 673 (1984) (contract). Liacos, Handbook of Massachusetts Evidence 8.2.5 (7th ed. 1999). What counts is the fact that such words were spoken. See 5 Weinstein & Berger, Evidence 801.11[3] (2d ed. 2000); 4 Mueller & Kirkpatrick, Federal Evidence 385 (2d ed. 1994 & Supp. 1999).

Similar testimony was held not to be hearsay in State v. Henry, 253 Conn. 354 (2000). A former passenger in a car with the defendant and another was permitted to testify that he had heard the other person say that if they saw [the intended victim] "it was on," meaning "they'd start shooting." The court held that the statement "was not hearsay because it was admissible as circumstantial evidence of the conspiracy, not to establish its truth. The statement made by [the other passenger in the car] to the defendant was evidence of the agreement to shoot [the intended victim] in which both the defendant and [the other person] had played a part." Id. at 365.

There was thus no error, let alone a substantial risk of a miscarriage of justice or ineffective assistance of counsel, see Commonwealth v. Curtis, 417 Mass. 619, 624-625 n.4 (1994), in admitting the evidence of Smith's statements, and there was no error in the denial of the defendant's motion for a required finding of not guilty on the charge of conspiracy to commit murder.

3. Violation of right to counsel. a. On the day of the defendant's arraignment, October 15, 1991, Attorney Alan Rubin, regional supervisor of the Hampshire County office of the Committee for Public Counsel Services (CPCS), was appointed to represent the defendant. After being informed less than a week before the day scheduled for trial that the Commonwealth intended to call a new witness to testify to statements allegedly made by the defendant while both men were incarcerated, Mr. Rubin prepared a motion to withdraw based on a conflict of interest. His motion set forth the following. The witness named by the Commonwealth was the husband and co-defendant of a woman represented by an associate of Mr. Rubin. In his capacity as regional supervisor, Mr. Rubin had discussed the woman's cases with his associate on various occasions.

The prosecutor in the defendant's case had informed Mr. Rubin that in return for the witness's cooperation, the Commonwealth would seek a reduction of the witness's sentence and the dismissal of all charges against his wife. This created a conflict because one client of the office (the wife of the witness) was to receive a benefit at the expense of the defendant. Moreover, the wife's counse...