Commonwealth v. Mejia

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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.