Present: Perretta, Laurence, & Lenk, JJ.
Error, Harmless. Constitutional Law, Self-incrimination. Evidence, Prior misconduct, Cumulative evidence, Relevancy and materiality, State of mind. Practice, Criminal, Comment by prosecutor.
Indictments found and returned in the Superior Court Department on April 27, 1988.
The cases were tried before James J. Nixon, J.
At the defendant's trial on indictments charging him with armed assault with intent to murder and assault and battery by means of a dangerous weapon, the jury were allowed to hear: (1) that the defendant had refused to allow the police, who were investigating the shooting of Shawn Cabral, to search his automobile and turn over his sneakers; (2) that two weeks prior to the shooting, the defendant had allegedly assaulted Cabral's sister with a knife; and (3) that a person who had confessed to the shooting of Cabral had stated to a Commonwealth witness that the defendant was going to pay him for the confession and assist him in fleeing the country. On appeal, the defendant argues that this evidence and various improper remarks by the prosecutor require the reversal of his convictions. We affirm.
*fn1 Shawn Cabral testified that one day during the first week of March, 1988, he arrived at his Freetown home to find his sister, Lisa, crying and his mother very upset. After speaking with them, Cabral called his sister's boyfriend, the defendant. Cabral described how he argued with the defendant: he told him that he would get back at him for attacking Lisa with a knife and dragging her into the woods, and he warned him to stay away from her.
About two nights after that telephone conversation, Cabral left his house shortly after midnight to drive to work. As he drove around a bend in his driveway, a dirt road about two hundred feet long with swampy areas and trees along both sides, Cabral saw that tree branches were on the ground, blocking his ability to proceed out to the road. He got out of his car and moved the branches off to the side of the driveway.
On March 11, 1988, about 2:30 A.M., Cabral's driveway was again blocked by tree branches. When he got out of his car to remove them, he heard a gunshot. Cabral fell to the ground between the branches and his car. He had been shot in the left leg. He saw someone standing to his left, pointing a gun at him. The assailant was dressed in black and wore a ski mask, which covered his face. This person then shot Cabral in the right leg and, again, in the left leg. Cabral turned on his side and covered his face with his arm. Another shot was fired, hitting the ground directly in front of (and causing powder burns on) Cabral's face. Cabral remained very still because he thought that he could hear his assailant walking near to him. After awhile, believing that the assailant had left the area, Cabral crawled to his car and drove back up his driveway while leaning on the horn. When his sister came to the door, he told her what had happened, and she called the police.
Upon receiving a radio dispatch at about 2:40 A.M., Michael Lecuyer of the Freetown police department went to Cabral's address. He had to remove tree branches from Cabral's driveway before he could reach the house. Farther up the driveway, he found Cabral wrapped in blankets. Cabral told Lecuyer what had happened and, after an ambulance arrived, Lecuyer notified his chief, Edward Mello, and Detective Alvan Alves and then went back down the driveway to search the area where he had earlier seen the branches. Lecuyer found puddles of blood, some small bullets, and footprints which he described as "sneaker-type" prints. State police officer Kenneth Martin made casts of the footprints and testified that, in his opinion, the prints could have been made by "Converse canvas-type sneakers." After also observing the area of the shooting, Alves went to the hospital and spoke with Cabral. He then went in search of the defendant.
Alves found the defendant that morning, March 11, at his sister's house in Marion. His friend Edward Carney was also there. The defendant told Alves that he and Carney had been at the sister's house since about 10:00 the night before. When Alves told the defendant "to try again," the defendant said that he had gone to a bar in New Bedford the night before until about 1 A.M. and that, upon leaving, he drove around New Bedford and then returned to his sister's house. Alves then told the defendant that he knew more than the defendant realized and that he wanted to know about his "trip to Freetown."
According to Alves, the defendant paled and became anxious. He told Alves that he had gone to Freetown to beat his former girlfriend's brother. Carney drove and dropped him off at Cabral's driveway. The defendant told Alves that he instructed Carney where to park and to wait until he, the defendant, had sufficient time to beat Cabral, and then he was to return for him. He also described how he used tree branches to barricade Cabral's driveway. The defendant told Alves that, when Cabral came down the driveway and got out of his car to remove the branches, someone shot at him. Upon hearing the shots, the defendant fled to Carney's car and told him that someone was shooting at them. The defendant and Carney drove off, "ending up at his sister's house."
When Alves asked Carney and the defendant if they would accompany him to the Freetown police station where he could reduce their statements to writing, the defendant stated that he wished to speak with an attorney first. Alves then went outside and, with Carney's consent, examined the interior of his vehicle and "viewed" the defendant's locked vehicle. Alves could see a gym bag as well as ...