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COMMONWEALTH
v.
DAVID P. VERMETTE.

APPEALS COURT OF MASSACHUSETTS

November 13, 1997

Error, Harmless. Constitutional Law, Self-incrimination. Evidence, Prior misconduct, Cumulative evidence, Relevancy and materiality, State of mind. Practice, Criminal, Comment by prosecutor.
Bristol. Indictments found and returned in the Superior Court Department on April 27, 1988. The cases were tried before James J. Nixon, J.
[ N.E.2d Page 1072 ][ Mass. App. Ct. Page 790 ] PERRETTA, 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.
1. The evidence.*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 [ Mass. App. Ct. Page 791 ] his face with his arm. Another shot was fired, hitting [ N.E.2d Page 1073 ] 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 [ Mass. App. Ct. Page 792 ] 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 a brown shopping bag in the back seat and that there was "black material," "black cloth" in the bag.
Alves asked the defendant if he could search his vehicle and informed him that he had the right to refuse. The defendant refused to allow the search. Alves next asked if he could photograph the bottom of the defendant's sneakers, and, again, the defendant refused.
When Alves began to make arrangements with Carney about going to the Freetown police station to give his statement, the defendant interrupted and told Carney that he should not speak to the police; rather, Carney should go with him and speak with his (the defendant's) attorney and that he would pay all his legal costs.
Carney left with the defendant, and Alves returned to Freetown. Upon his arrival at the police station, he had a message from an attorney in New Bedford. Alves returned the call and drove to the attorney's office. The attorney advised Alves that he represented the defendant and Carney. Alves interviewed the two men and was allowed to take the sneakers the defendant was wearing and which Alves described as being "Sports Built." The defendant also consented to a search of his automobile. Alves testified that [ N.E.2d Page 1074 ] although the gym bag was still in the car, the paper bag containing the "black material" was not. *fn2
During cross-examination of Alves, the defendant elicited information showing that a Paul Gonsalves had written letters and made tape recordings in which he confessed to shooting[ Mass. App. Ct. Page 793 ] Cabral. Over the prosecutor's objection, defense counsel introduced one of the letters in evidence. *fn3 The remaining letters and tapes were thereafter introduced by the prosecutor without objection from defense counsel. *fn4
With the letters and tapes in evidence at the defendant's behest, the Commonwealth then called State trooper Michael Crisp. Crisp related that about six weeks (May 31, 1988) after the shooting of Cabral, he participated in an investigation concerning a body found on the beach in Mattapoisett. The deceased, Paul Gonsalves, had been shot to death with two revolvers, both of which had been left by his body. There was a trail of blood leading from his body to a marsh area. Following the trail into the marsh, the police came to an area in the marsh grass which had been matted down by a body. There they found a plastic bag containing white envelopes which were separately addressed to the Cabral residence, the Vermette family, the defendant's attorney, and the prosecutor. Each contained a letter that the parties stipulated was written by Gonsalves and a tape, the items earlier placed in evidence. A drug tote book, that is, a book recording drug sales, was found on Gonsalves's body.
We return to the evidence of the defendant's guilt. Testifying under a grant of immunity, Carney related how he drove the defendant close to Cabral's property on the early morning of March 11. The defendant had told Carney that he wanted to retrieve his dog from Cabral's sister but that stealth was necessary because he was not welcome at her house. While driving to Cabral's house, the defendant told Carney that he had had an argument with Cabral, that he would like to "beat him up," that he had been at Cabral's house "at another time" and had put bushes in front of his car, and that Cabral got out of his car with a baseball bat "like he was actually waiting for someone to attack him."
Carney told how he and the defendant drove past the Cabral driveway and proceeded to a parking lot at a boat landing. The [ Mass. App. Ct. Page 794 ] defendant put on a ski mask and gloves, telling Carney that no one was to know who he was. The defendant left the lot, and Carney fell asleep in the car. Because he had been sleeping, Carney lost track of the time. He was awakened when the defendant returned, got into the car, and told him "Let's get out of here, someone is trying to shoot at me." Carney sped off. When he reached a highway, the defendant began to throw his gloves and Converse sneakers out of the window. The defendant had with him a pair of "Sports Built coach-type shoes" which he did not throw away. Directing Carney to stop the car, the defendant stepped out onto a bridge and tossed the ski mask into the water. ...

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