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11-P-945 Appeals Court
COMMONWEALTH vs. BROWNING M. MEJIA.
No. 11-P-945.
Barnstable. December 4, 2014. - September 8, 2015.
Present: Cohen, Fecteau, & Massing, JJ.
Assault and Battery by Means of a Dangerous Weapon. Evidence,
Admissions and confessions, Relevancy and materiality,
Telephone conversation, Joint enterprise. Firearms.
Imprisonment, Inmate telephone calls. Telephone.
Indictments found and returned in the Superior Court
Department on June 12, 2009.
The cases were tried before Gary A. Nickerson, J.
Rosemary Curran Scapicchio (Jillise McDonough with her) for
the defendant.
Elizabeth A. Sweeney, Assistant District Attorney, for the
Commonwealth.
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
2
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 (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
3
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
1
Ferreira and Asack were friends, and Walwer was Ferreira's
roommate. Jackson was visiting from Florida and was a friend of
Ferriera's boyfriend, who was in jail at the time. Ferreira was
the prosecution's key eyewitness, although Asack testified
briefly, as well. Both women testified under grants of immunity
and were reluctant and evasive witnesses. On numerous
occasions, both the prosecutor and defense counsel brought out
conflicting statements made by them when they appeared before
the grand jury. In addition, Ferreira, who was incarcerated on
an unrelated matter at the time of trial, was impeached on
cross-examination with prior convictions. Walwer also was
called to testify, but after unexpectedly asserting his Fifth
Amendment privilege, he was excused.
4
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.
2
Ferreira volunteered, "We all have North Face."
3
At trial, Ferreira estimated that there were four or five
assailants, but she acknowledged that in her grand jury
testimony she had said that there were only two. Police
recovered bullet casings from three different types of firearms
(a .32 caliber, a .40 caliber, and a nine millimeter),
consistent with there being three shooters.
5
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
6
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
7
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
8
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
4
We understand this claim to relate not only to the
admission of the actual handgun, which, in turn, led to evidence
that it matched shells found at the crime scene, but also to the
testimony that the handgun was recovered from a location where
the defendant was seen a few days after the shooting. We refer
collectively to this evidence as "the handgun evidence."
5
The defendant failed to provide us with the Commonwealth's
motion in limine. (The appendix to his brief includes only his
opposition to the motion.) We have exercised our discretion to
obtain a copy of the motion and supporting memorandum from the
trial court.
9
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 to the disclosure of the
identity of the informant in order to dispute the testimony of
the surveillance officers. Finally, the defendant argued that
the proposed evidence was not relevant or, in the alternative,
that any relevance was outweighed by the prejudicial effect of
this "subsequent bad act" evidence.
The judge's initial reaction to the parties' arguments was
that the surveillance officers could testify to their
observations of the defendant as long as they gave no
explanation of why they were present, but that further inquiry
10
was needed to determine whether the defendant was entitled to
the identity of the informant. The judge therefore conducted an
in camera hearing with the two detectives who performed the
surveillance. As a result of their testimony, the judge found
that the informant was not in a position to have made any
relevant observations, and, hence, there was no need to disclose
his identity. The judge also determined that only one of the
detectives, Guiney, could have seen the defendant come and go
from the residence.
The judge's final ruling on the motion in limine was that
only Guiney would be allowed to testify, and that his testimony
would have to be "tight" and avoid any mention of why he was
there. Counsel voiced no dissatisfaction with the judge's
rulings, and the judge said nothing to suggest that counsel was
relieved of his obligation to make timely objection at trial.
During Guiney's trial testimony, counsel lodged no objection,
including at the point when the prosecutor offered the handgun
and ammunition in evidence. To the contrary, when the offer was
made, defense counsel explicitly said, "No objection."6
It is evident from what transpired that, despite the
defendant's opposition to the Commonwealth's motion in limine
6
The transcript suggests that counsel's response may have
taken the judge by surprise. When counsel said, "No objection,"
the judge said, "I'm sorry?" at which point defense counsel
again said, "No objection."
11
seeking to admit "evidence of defendant's access to firearms and
ammunition," he did not preserve the issue for appeal. See
Commonwealth v. Whelton, 428 Mass. 24, 25 (1988); Commonwealth
v. Jones, 464 Mass. 16, 18-19 & n.4 (2012); Commonwealth v.
Lawton, 82 Mass. App. Ct. 528, 538 (2012); Mass. G. Evid.
§ 103(b) (2015). We therefore consider the defendant's claim
only to determine whether the challenged evidence was improper
and, if so, whether it created a substantial risk of a
miscarriage of justice. See Commonwealth v. Haggett, 79 Mass.
App. Ct. 167, 174 (2011).
b. Analysis. The issue of the admissibility of the
handgun evidence is an evidentiary one, to be considered in
light of the principles of relevancy and its limits.7 See Mass.
G. Evid. §§ 401, 403 (2015). "Evidence is relevant if it has a
rational tendency to prove a material issue. To be relevant,
evidence need not establish directly the proposition sought; it
must only provide a link in the chain of proof. The trial judge
has substantial discretion in deciding whether evidence is
relevant, and whether the prejudicial implications of such
7
Here, and in connection with other issues presented, the
defendant's brief includes conclusory assertions of violations
of his constitutional rights under provisions of the United
States Constitution and the Massachusetts Declaration of Rights.
These "unsubstantiated, superficial claim[s do] not rise to the
level of adequate appellate argument, and we do not consider
[them.]" Commonwealth v. Dinquis, 74 Mass. App. Ct. 901, 901
n.4 (2009). See Mass. R.A.P. 16(a)(4), as amended, 367 Mass.
921 (1975).
12
evidence outweigh its probative value." Commonwealth v. Scesny,
472 Mass. 185, 199 (2015) (quotations and citations omitted).
Cases involving the admissibility of weapons and
weapons-related items generally arise in two different contexts.
Where the proffered evidence was or could have been used in the
course of a crime, it is relevant and admissible in the judge's
discretion to prove that a defendant had the "means" to commit
the crime. See, e.g., Commonwealth v. Williams, 456 Mass. 857,
871 & n.11 (2010). Where the proffered evidence could not have
been used in the commission of a crime, it still may be relevant
and admissible in the judge's discretion to prove the
defendant's "access" to and "familiarity" with such items. See,
e.g., Commonwealth v. Ridge, 455 Mass. 307, 309, 322-323 (2009).
In either context, weapons-related evidence is likely to carry a
risk of prejudice, but because evidence of a weapon that could
not have been used in the crime is of weaker probative value
than evidence of a weapon that was or could have been used in
the crime, its relevance may be less likely to outweigh the risk
of prejudice. See Commonwealth v. Toro, 395 Mass. 354, 356-357
(1985). Still, evidence of a weapon that could not have been
used in the crime is not "unconditionally disapproved."
Commonwealth v. Barbosa, 463 Mass. 116, 122 (2012). Depending
on the circumstances, it may be admitted, with appropriate
limiting instruction. See Commonwealth v. Ridge, supra at
13
322-323. See also Commonwealth v. McGee, 467 Mass. 141, 157-158
(2014).
Another factor bearing on admissibility, however, is the
existence of a nonspeculative link between the defendant and the
evidence. For example, there was a sufficient link in
Commonwealth v. Beliard, 443 Mass. 79, 88 & n.8 (2004), where
the handgun used in the crime charged was the same handgun that
had been used in a home invasion to which the defendant's
brother had pleaded guilty, and the defendant resided with his
brother. On the other hand, there was an insufficient link in
Commonwealth v. Barbosa, supra at 123, where ammunition and a
magazine that could not have been used in the crime charged were
found in the common area of an apartment the defendant shared
with four other adults.
In the present case, the only trial evidence tying the
defendant to the handgun was Guiney's testimony that, a few days
after the shooting, he saw the defendant on one occasion,
leaving and returning to a residence at 55 Nautical Way through
the back door, and that four days later police recovered the
handgun from the basement rafters of that residence. There was
no DNA or fingerprint evidence linking the defendant to the
handgun; and no evidence that he ever was seen with the handgun
or, for that matter, any other firearm. Nor was there evidence
that the defendant lived at or frequented 55 Nautical Way, much
14
less that he had access to the basement where the handgun was
secreted.
There also was no evidence identifying the individuals who
lived or frequented 55 Nautical Way, and no evidence of the
relationship of such individuals to the defendant or to the
shooting. Thus, not only was there no evidence of an individual
connection between the defendant and the handgun, but there also
was no evidence of a connection between the handgun and any
potential coventurer. Compare Commonwealth v. Rosa, 468 Mass.
231, 237-238 & n.8 (2014) (casings and live rounds found in
coventurer's bedroom could be inferred to be connected to guns
used in murder with which defendant was charged; at a minimum
the evidence tended to show that at least one of the
perpetrators had access to the means of committing the crime).
The thinness of this showing was due in no small part to
rulings favorable to the defendant. The judge would not allow
the Commonwealth to introduce testimony from one of the
detectives that the defendant lived at 55 Nautical Way based
solely upon a conversation, in November, 2009, in which the
defendant referred to "Nautical" as his "neighborhood." The
judge also restricted the Commonwealth's inquiry into Guiney's
knowledge of the defendant's relationship with two individuals
who were convicted of possessing the handgun. The prosecutor
was only able to ask whether Guiney had seen the defendant with
15
those individuals within two weeks before or after the shooting,
and Guiney responded that he did not recall.
Reduced to its essence, the defendant's position on appeal
is that the judge should have gone even farther and excluded the
handgun evidence altogether. Specifically, the defendant
contends that only a showing that he personally or
constructively possessed the handgun would have been enough to
justify admission. That contention is not correct, at least in
the context of a case where the defendant is alleged to have
participated in a joint venture. See Commonwealth v. Rosa,
supra at 237. But the defendant's broader point -- that the
connection between the defendant and the handgun was too
attenuated to endow the handgun evidence with sufficient
probative value to outweigh its prejudicial effect -- has
considerable force.
We need not decide the issue, however, because whether or
not the handgun evidence was improper, the defendant is not
entitled to appellate relief. The existence of error is only
one factor that we consider in determining whether there is a
substantial risk of a miscarriage of justice. We also consider
whether the defendant was prejudiced, whether in the context of
the entire trial it would be reasonable to conclude that the
error materially influenced the verdict, and whether we may
infer from the record that counsel's failure to object was not a
16
reasonable tactical decision. See Commonwealth v. Randolph, 438
Mass. 290, 297-298 (2002). Relief under this standard is seldom
granted and is appropriate only where all four factors are
satisfied. See ibid.
Here, even if the handgun evidence was erroneously admitted
and prejudicial, the very weakness of the connection between the
defendant and the handgun suggests that it would not have
materially influenced the verdict, especially when considered
alongside the properly admitted evidence of the defendant's
guilt. The defendant was known to the victims. The two victims
who testified both identified him as the person whom they
contacted to purchase marijuana, and telephone company records
confirmed the calls. Ferreira placed him at the scene of the
shooting minutes before gunfire erupted, and described him as
wearing clothing like that of the shooters. The defendant had
been the one to provide the victims with unsatisfactory
marijuana and to set the location for them to meet again. He
walked away just minutes before the shots began, on what could
be inferred to be a pretext -- forgetting to bring the marijuana
that he had just arranged to exchange. There was evidence of
prior tension between two of the victims and friends of the
defendant, and, as we discuss below, the defendant's calls from
jail evinced consciousness of guilt.
17
Most significant to our analysis, however, is that
counsel's failure to preserve the defendant's rights was not a
mere oversight; it was an explicit abandonment of his prior
opposition to the introduction of the handgun evidence. Counsel
not only did not object to Guiney's testimony; when the handgun
and ammunition were offered, he affirmatively stated on the
record that he had no objection. He then used the opportunity
presented by Guiney's testimony to further the defense that
there were third-party culprits by eliciting that two other
people had been charged with, and convicted of, possession of
the handgun used in the crime. On this record, we are unable to
infer that counsel's failure to object was not simply a
reasonable tactical decision.
2. Recorded telephone calls. Prior to trial, the
Commonwealth filed a motion in limine to admit excerpts from
four recorded telephone calls made by the defendant from jail.
The Commonwealth contended that it could be inferred from the
defendant's statements that he was orchestrating an attempt to
influence the testimony of a female witness. The defendant
filed his own motion in limine to preclude the Commonwealth from
introducing the recordings, claiming, among other things, that
they were irrelevant and highly prejudicial. After reviewing
the content of the calls, and learning that this was the only
case pending against the defendant at the time they were made,
18
the judge ruled that the Commonwealth's proffer was sufficient
to allow the jury to hear the evidence. The defendant renewed
his objection at trial, and we therefore review for prejudicial
error. See Commonwealth v. Rosa, 468 Mass. at 239.
The defendant's first argument is that the admission of two
calls referring to plea negotiations violated Mass.R.Crim.P.
12(f), as appearing in 442 Mass. 1511 (2004).8 However, because
the defendant's statements were made to someone who had no
authority to negotiate a plea, the judge properly admitted them
under the authority of Commonwealth v. Boyarski, 452 Mass. 700,
709 (2008). See Commonwealth v. Wilson, 430 Mass. 440, 443
(1999).
The defendant next challenges the relevance of the calls,
claiming that they did not relate to the defendant's case.
However, despite the use of oblique language, the defendant's
statements were susceptible to the interpretation that he was
directing the recipient of the call to contact a female witness
and persuade her to provide favorable testimony.9 The judge did
8
In the first call, the defendant tells the other party
that he needs to know promptly whether an unidentified female is
willing to "sing" and "do the hook," because he has to decide
whether to take a plea the next day. In a later call, the
defendant describes a plea offer he received, the counteroffer
he proposed, and the judge's rejection of the deal because "the
girl" was "complaining," "crying," "sitting in the courtroom."
9
In a conversation that took place three days after the
defendant's arrest, the defendant asks, "Did you talk to that
19
not err in admitting the evidence and leaving it for the jury to
evaluate.
The defendant also argues for the first time on appeal that
the statements of the recipients of the calls were inadmissible
hearsay and violated the defendant's confrontation clause
rights. There was no error and, therefore, no substantial risk
of a miscarriage of justice. The recipients' statements
provided context for the relevant and admissible statements made
by the defendant in the same conversation. See Commonwealth v.
Mullane, 445 Mass. 702, 711 (2006). They were not admitted for
their truth and were neither hearsay nor testimonial.
Furthermore, the defendant has not identified anything damaging
in the recipients' statements that is not also present in the
defendant's own statements.
The defendant's final argument concerning the calls is that
their admission caused him undue prejudice by bringing attention
to his incarceration and his use of offensive language.
However, for reasons similar to those explained in Commonwealth
v. Rosa, supra at 241-242, we discern no abuse of the judge's
[expletive] girl?" Then he states, "[M]ake sure they didn't try
to get in contact with her." In a later conversation, the
defendant directs the other person not to be mad "at his girl,"
and to tell her that the defendant was "good," and "chillin'"
and the "wrong person." In another call, the defendant
discusses rap music and asks the other party to see if the girl
will "sing the chorus." In the fourth call, the defendant
refers to the girl as "a snitch," and discusses whether she will
"show up."
20
broad discretion to weigh the probative value of the evidence
against any prejudicial effect it might have on the jury.
3. Other issues. Little need be said concerning the
defendant's remaining claims.
a. There was no evidence that other jurors were exposed to
extraneous influence as a result of juror no. 2's realization,
after only one witness testified, that one of the victims had
been her student four years earlier. Accordingly, there is no
merit to the defendant's new claim on appeal that, in addition
to inquiring of juror no. 2 and, at the defendant's request,
discharging her, the judge also was required to conduct an
individual voir dire of the remaining jurors. See Commonwealth
v. Fidler, 377 Mass. 192, 199-201 (1979); Commonwealth v.
Tanner, 417 Mass. 1, 4-5 (1994).
b. The Commonwealth's prosecution of the defendant on the
theory that he knowingly participated in the commission of the
crime charged, alone or with others, while he had the shared
intent required for that crime, see Commonwealth v. Zanetti, 454
Mass. at 470, was not factually inconsistent with the
Commonwealth's prosecution of two other individuals for
possession of the firearm found at 55 Nautical Way, and did not
violate due process. See Commonwealth v. Keo, 467 Mass. 25, 36-
39 (2014).
21
c. As the defendant has raised no successful issue, there
was no cumulative error entitling him to appellate relief.
Judgments affirmed.