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Commonwealth v. Martinez

Supreme Judicial Court of Massachusetts, Essex

January 5, 2017


          Heard: September 9, 2016.

         Indictment found and returned in the Superior Court Department on June 29, 2011.

         The case was tried before Timothy Q. Feeley, J.

          Amy M. Belger for the defendant.

          Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Botsford, Gaziano, Lowy, & Budd, JJ.

          GAZIANO, J.

         The victim, Timothy Walker, was shot while seated and talking with two friends on the porch of his grandmother's house in the Tower Hill section of Lawrence. Despite two eyewitnesses, and surveillance video recordings of the incident obtained from nearby businesses, police were unable to identify a suspect. Nine months after the victim's death, a local television station featured the shooting in an "unsolved crime" series news broadcast that included portions of the surveillance footage showing the suspect, whose face was not discernable. The defendant watched the news broadcast with his girl friend's mother and told her that he had been the shooter. At the defendant's trial, the Superior Court judge allowed the admission in evidence, over the defendant's objection, of a redacted version of the news broadcast. The jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation.

         On appeal, the defendant's principal argument is that the news broadcast should not have been admitted in evidence, or, alternatively, that it should have been more heavily redacted, because much of it was irrelevant, inflammatory, and highly prejudicial. The defendant also claims error in certain aspects of the judge's conduct of the voir dire of the venire and two of the judge's evidentiary rulings. Finally, the defendant contends that several statements in the prosecutor's opening statement and closing argument were improper.

         We conclude that there was no abuse of discretion in the judge's decision to allow admission of the news broadcast, and no error requiring reversal in the defendant's other challenges. Having carefully examined the record pursuant to our duty under G. L. c. 278, § 33E, we discern no reason to order a new trial or to reduce the degree of guilt. We therefore affirm the defendant's conviction.

         1. Facts.

         We recite the facts the jury could have found, reserving other facts for our discussion of specific issues. On July 24, 2010, while the victim was sitting on the porch of his grandmother's house with his cousin and a friend, a man approached the porch, shot the victim in the head with a shotgun, and then fled back the way he had come, shooting as he ran.[1] The shooter was wearing a dark baseball cap pulled low over his face, and neither eyewitness was able to identify him, although each gave a similar description of his height, build, complexion, and clothing. The victim died of his injuries several days later. In the months following the shooting, police were unable to identify a suspect.

         The shooter's movements immediately before and after the shooting were captured by four security cameras located at nearby business establishments. The edited footage constituted an approximately four and one-half minute video recording, which was admitted and played for the jury. This video recording showed an automobile arrive in the vicinity of the crime and stop for several minutes. During that time, the shooter got out of the passenger's side of the vehicle, approached the victim, fired a weapon, ran back toward the vehicle, and entered the passenger's side, upon which the vehicle was driven away.

         In the spring of 2011, the defendant was dating Tesseana Wilson and stayed frequently at the home of her mother, Michelle Wilson, [2] up to five nights per week.[3] Approximately nine months after the shooting, on the evening of May 2, 2011, sometime between 11 and 11:30 P..M., the defendant walked into the living room where Michelle was watching television and asked her to change the station to a particular channel. She did so. The station was airing the first broadcast of a new unsolved crime series; the program that evening was titled, "Who Killed Timothy Walker?" Michelle recognized the name "Timothy Walker" as a "distant cousin" of her children, whom she knew had been shot the previous summer.

         The defendant watched the broadcast with Michelle. While they were watching, she looked at the defendant and said, "That's you" or "Is it you?, " while he said, "I killed him." The defendant thereafter described his actions, narrating events as they were shown on the surveillance footage. When Michelle asked him why he was shooting as he ran from the scene, the defendant said that he had been concerned that he would be shot at or pursued. At another point in the broadcast, when the victim's mother described being told of her son's death, the defendant said that she was incorrect in stating that the bullet had passed through the victim's head, because he had used a hollow-point bullet. The defendant also described the actions of the getaway vehicle's driver, and his own efforts to conceal evidence of the crime.

         Michelle told the defendant to tell Tesseana and then to leave her house. The defendant spoke with Tesseana privately, telling her that he had been the shooter, and Michelle then drove him to a house in Lawrence where he had requested to be taken. Shortly thereafter, in the early morning hours of May 3, 2011, Tesseana watched a rebroadcast of the news program and recognized the shooter's walk and build as the defendant's. Later that day, Michelle contacted police and told them of the defendant's confession. Police also spoke with Tesseana, who initially denied recognizing the shooter on the news broadcast. She later said that she had recognized the defendant, but did not want to believe it was him, and described her conversation with the defendant.

         Four days after the news broadcast aired, on Friday, May 6, 2011, police went to Dolores's house; Max was home and spoke briefly with them. Later that day, Max gave the defendant a ride home and noticed that the defendant was holding a pair of sneakers. When they arrived at the house, the defendant asked Dolores for a plastic bag, which she gave him. Max later drove the defendant to a bridal shower; en route, Max asked the defendant why the police had been at the house looking for him. The defendant explained that a friend of his from Lawrence had shot a gun into the air and then had dropped it, and that the defendant had picked it up; he said that the police probably wanted to ask why his fingerprints were on the gun.

         The next day, Saturday, when taking out the trash, Dolores noticed the bag containing the sneakers in an otherwise empty trash can. On Sunday, she contacted police and gave them the sneakers. Max also identified them as those the defendant had with him while in Max's vehicle on May 6.

         2. Discussion.

         The defendant challenges the introduction of the redacted recording of the news broadcast, the judge's decision not to conduct a voir dire of the venire concerning the news broadcast, the judge's evidentiary rulings with respect to Max's testimony, and several of the prosecutor's remarks in his opening statement and closing argument. We address each argument in turn.

         a. The news broadcast.

         The defendant argues that the audio-video recording of the news broadcast should not have been admitted in its redacted form; he contends that it should have been excluded, or more heavily redacted, on the ground that much of the content was irrelevant, highly inflammatory, and unduly prejudicial. Because the defendant objected to the introduction of the recording, we review to determine whether any abuse of discretion resulted in prejudicial error. See Commonwealth v. Rosa, 468 Mass. 231, 239-242 (2014).

         A judge has broad discretion in making evidentiary rulings. Commonwealth v. Bell, 473 Mass. 131, 142 (2015), cert, denied, 136 S.Ct. 2467 (2016). In determining whether the judge erred in allowing introduction of the redacted recording, [4] we consider whether the judge took "care to avoid exposing the jury unnecessarily to . . . material that might inflame [their] emotions and possibly deprive the defendant of an impartial jury." Commonwealth v. Berry, 420 Mass. 95, 109 (1995). This analysis requires us to review the redactions themselves, the limiting instructions, and the probative value of the news broadcast in light of its likely prejudicial effect. Bell, supra at 142-143.

         We conclude that there was no abuse of discretion in allowing the introduction of the redacted recording, given its significant probative value, the redactions made, and the judge's instructions before the recording was played for the jury and during his final charge.

         i. Redactions.

         The four-minute and twenty-second news broadcast, asking for the public's assistance in locating a killer, was narrated by a station news reporter. It contains his introductory and closing comments, the surveillance video footage of the shooter approaching and running from the scene of the shooting, statements made during an interview by the district attorney, statements from the victim's mother, and photographs of the victim and his belongings.

         The judge conducted several hearings during the first two days of trial on the Commonwealth's motion in limine to introduce the recording. After having viewed the recording several times, the judge provided the parties with a document dividing the news broadcast into twenty-one segments, setting forth his ruling as to each. He ordered audio redaction in a number of segments, and, in one section, both audio and video redactions. The audio portion was muted approximately fifteen times, for a total of two minutes and five seconds (approximately forty-eight per cent of the recording) to prevent the jury from hearing statements by the district attorney, some of the narrator's comments concerning the victim and the crime, and certain comments by ...

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