COMMONWEALTH v. FERREIRA, 381 Mass. 306 (1980)

409 N.E.2d 188

Supreme Judicial Court of Massachusetts. Bristol.April 8, 1980.
August 6, 1980.

Present: HENNESSEY, C.J., QUIRICO, BRAUCHER, WILKINS, ABRAMS, JJ.

Homicide. Evidence, Intent, State of mind. Error, Harmless. Practice, Criminal, Argument by prosecutor.

At a murder trial in which the main issue was whether the defendant or his companion, who was a key prosecution witness, had committed the murder, the judge did not abuse his discretion in limiting to impeachment purposes only a witness’s testimony that ten days before the crime the companion had asked the witness where he could get a gun. [310-311] At the trial of a defendant charged with the murder of a policeman in which the main issue was whether the defendant or his companion, who was a key prosecution witness, had committed the murder, the defendant was not prejudiced by the judge’s limitation to impeachment purposes only of a witness’s testimony that the companion had said shortly before the murder that he was going to shoot a policeman before the night was out where there was direct testimony by two witnesses to the murder that the defendant did the actual shooting and there was no testimony that the companion had done the shooting. [311-314] At a murder trial, the defendant was not prejudiced by a police officer’s testimony that the defendant did not respond when asked if he understood the Miranda warnings. [314] Taken in context, remarks made by the prosecution in a murder case during closing argument did not constitute an improper comment on the defendant’s failure to testify or an improper expression of personal belief in the defendant’s guilt. [315-317]

INDICTMENT found and returned in the Superior Court on August 13, 1973.

After review reported in 373 Mass. 116 (1977) a retrial of the case was held before Taveira, J.

Daniel E. Callahan for the defendant.

William A. Schroeder, Assistant District Attorney, for the Commonwealth.

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ABRAMS, J.

Convicted of murder in the first degree for the slaying of Officer John Ruggiero, a member of the Fall River police department, Daniel K. Ferreira appeals to this court pursuant to G.L.c. 278, §§ 33A-33G. On appeal Ferreira argues three assignments of error: (1) that the judge erred in his rulings which limited to impeachment purposes only evidence on a material issue showing state of mind of the Commonwealth’s main witness; (2) that the judge erred in allowing the defendant to be impeached by his silence when he was given Miranda warnings; and (3) that improper closing argument by the prosecutor requires reversal. We find neither reversible error nor any reason to exercise our power under G.L.c. 278, § 33E, to enter a verdict of a lesser degree of guilt or to order a new trial, and therefore we affirm.

At trial, the main issue was whether one Joseph Silva or the defendant committed the homicide.[1] We summarize the evidence concerning the identification of the defendant. In support of its contention that Ferreira was the person responsible for killing Officer Ruggiero, the Commonwealth offered two eyewitnesses to the crime: Officer Robert Fortin and Joseph Silva.

In the early morning hours of July 23, 1973, Officer Fortin saw a police cruiser driven by Ruggiero drive by him and make a U-turn. The cruiser was following a black Cadillac automobile which had its headlights out. After the Cadillac turned, it went into a parking lot; the police cruiser stopped in the middle of the street adjacent to the parking lot. The area was fairly well lighted.

Two men ran from the Cadillac toward the cruiser. The shorter of the two men (later identified as the defendant) was at least one-and-one-half feet ahead of the taller man (later identified as Silva). The defendant reached the cruiser first. When the shorter man was about four inches from

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the side view mirror of the cruiser, Fortin heard four or five shots and saw flashes go from the middle of the shorter man (the defendant) into the cruiser. Although Fortin did not see a gun in the hands of either man, his testimony was that all the flashes originated from the shorter man (the defendant).[2] The two men ran back to the Cadillac as the police cruiser rolled downhill. The Cadillac left the parking lot and drove toward Fortin.

Fortin, who had known both Silva and Ferreira for a number of years, recognized Silva as the driver and the defendant as the passenger. As the car passed Fortin at a distance of ten to fifteen feet, the defendant pointed a gun at Fortin but did not fire it. Fortin ducked behind a car and emptied his gun, shooting at the Cadillac, hitting the taillight and the trunk; the car continued down the street at a speed of fifty to seventy miles an hour. As a result of Fortin’s radio messages, two officers on cruiser patrol saw the Cadillac and gave chase.

After the officers lost sight of the Cadillac for a few minutes, the car was found parked on the street near the apartment building where Silva resided. Ferreira was apprehended hiding in the grass about five feet from the car. The gun used in the slaying was found on the opposite side of a six-foot fence, approximately eight feet from where the defendant was arrested.

Silva testified for the Commonwealth as to the following facts. He and the defendant had been together drinking all day and into the evening of July 22. Silva was driving a Cadillac which he had recently purchased. After the bars closed, both men continued drinking at the homes of friends, one of them being Frank Souza. They then proceeded to Ferreira’s apartment to pick up Silva’s girl friend, Margaret Strickland.

The defendant went into the apartment alone and came out five or ten minutes later, waving a gun. The defendant

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suggested they continue drinking and both men got back into the car. Silva drove a few blocks when he noticed a police car behind him. Silva made a right turn, hoping the cruiser would not follow him. When it did, he turned into a parking lot.

Both Silva and the defendant got out of the Cadillac and went toward the police car, the defendant some five or six feet ahead of Silva. When Ferreira reached the window of the police car, Silva saw Ferreira fire several shots into the car. Silva was still some distance behind the defendant. After the defendant fired, both men turned and ran back to the Cadillac. Silva drove back to his apartment, left the defendant sitting in the car outside, and remained in his apartment until the police arrived a couple of hours later. Silva admitted on cross-examination that he had received his Class 1 license (permitting him to operate a tractor-trailer) a few months prior to July 22, and he believed that if he were convicted of driving under the influence of alcohol he would lose his driver’s license, including his Class 1 license. When he turned into the parking lot, he intended to ask the police officer to give him a break if he promised to go to the apartment of a friend in the building next to the parking lot and leave his car there. He therefore had a reason to get out of his car to talk to the police officer. He testified that the defendant had no such reason, and said that Ferreira shot Ruggiero simply because Ferreira was “nuts.”

The defendant did not testify, but he did present witnesses on his behalf. Robert Luiz testified that about ten days before the crime Silva asked him where he could get a gun. Luiz responded that he did not know. Frank Souza testified that when both Silva and the defendant were at his house an hour or two before the shooting, Silva lifted up his shirt, showed Souza a gun, and said: “These cops are on my ass, and I’m going to shoot a f____ing cop before the night is out.”[3] The defendant was in the bathroom when this episode took place.

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1. The testimony of both Luiz and Souza regarding the statements allegedly made by Silva were admitted in evidence for impeachment purposes only. The jury were specifically instructed by the judge in the charge that these statements could not be considered as affirmative evidence. Defense counsel was precluded from arguing the statements as probative evidence. The evidence regarding Silva’s possession of a gun was admitted for its full probative value. The defendant claims that it was error to limit the testimony of Souza and Luiz as to Silva’s statements solely to their impeachment value. The Commonwealth asserts that the limitation placed on this testimony was within the judge’s discretion.

Statements, not too remote in time, which indicate an intention to engage in particular conduct, are admissible to prove that the conduct was, in fact, put in effect. “The existence in the mind of a deliberate design to do a certain act, when once proved, may properly lead to the inference that the intent once harbored continued and was carried into effect by acts long subsequent to the origin of the motive by which they were prompted.” Cook v Moore, 11 Cush. 213, 217 (1853). A statement indicating intent “is not excluded by the hearsay rule; either it is not hearsay, or it is within an exception to the hearsay rule.” Commonwealth
v. Wampler, 369 Mass. 121, 123 (1975). “[T]he nature of the act to be evidenced by the design has nothing whatever to do with the admissibility of declarations of design. The latter are absolutely admissible as statements of a mental condition . . . to prove the design; what the design evidences, or whether it is relevant at all, does not affect [the admissibility of the declarations].” 6 J. Wigmore, Evidence § 1725, at 139 (Chadbourn rev. 1976). See Commonwealth v. Wampler, supra Commonwealth v. Fiore, 364 Mass. 819, 824 (1974); Goldman, petitioner, 331 Mass. 647, 651 (1954), cert. denied sub nom Goldman v. Fogarty, 348 U.S. 942 (1955); Commonwealth v Rubin, 318 Mass. 587, 588-589 (1945); Commonwealth v Trefethen, 157 Mass. 180, 192-193 (1892). See also McCormick, Evidence § 295, at 697 (2d ed. 1972); W.B. Leach P.J. Liacos, Massachusetts

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Evidence 249 (4th ed. 1967).[4] See Proposed Mass. R. Evid. 803 (3) (July, 1980).

Tested by this well-established principle, there was no error in limiting Luiz’s testimony. A request for a gun is not a declaration of intent. The statement, moreover, does not tend to show that Silva intended to kill a police officer. Rather, it merely implied a desire for a gun, an issue collateral to the issue being tried. See Commonwealth v. Hodge (No. 2), 380 Mass. 858, 862-863 (1980). Thus, the judge did not abuse his discretion in concluding that the statement was not indicative of a state of mind relevant to a material issue at trial. Lastly, the judge could well conclude that the statement was too remote in time to evidence an existing state of mind. There was no error.

We next consider the limitation on Souza’s testimony. Ferreira grounded his defense on the theory that Silva committed the murder. Since the Commonwealth offered no evidence of joint enterprise,[5] a finding that Silva fired the shots resulting in Officer Ruggiero’s death mandated a finding of not guilty for the defendant. It was in effect a necessary corollary to the Commonwealth’s case that Silva did not shoot Officer Ruggiero. Where the evidence tended to show that both possible perpetrators had the same opportunity, evidence of the intent of either one of them is clearly material.[6] The statement of intent made by the only other

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possible perpetrator of the murder is material evidence and normally is admissible.

We now consider whether the limitation placed on the evidence of state of mind amounted to an abuse of discretion. Two witnesses to the shooting identified the defendant as the person who did the shooting. Officer Fortin testified that he saw the shots come from the shorter man,[7] who was later identified to be the defendant. Silva testified that he was five or six feet behind the defendant when the defendant started shooting. Officer Fortin saw a gun in the defendant’s hand as the Cadillac drove toward him, and the gun used in the homicide was found eight feet away from the area where Ferreira was apprehended. Ferreira was identified as the person closer to the cruiser. Powder burns on the victim’s body indicated that the person who shot Officer Ruggeiro was within three feet of the officer. Although the testimony of Officer Fortin and Silva differed as to the distance between Silva and the defendant, both men testified that Silva was behind the defendant and that the shots came from the defendant.

Additionally, the jury knew that Souza claimed that Silva had a gun in the early morning hours prior to the shooting, that only Silva stood to lose his Class 1 license if arrested for driving under the influence of intoxicating liquors, and that

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if they believed Souza, it would impeach Silva.[8]
Additionally, Silva’s credibility was discredited by his record of many criminal convictions.

We think, therefore, this case may be distinguished fro Commonwealth v. Trefethen, supra at note 6, in which there was no direct evidence as to the actual killing and in which the jury were wholly ignorant of the defendant’s claim. The evidence at issue in the instant case only tended to show that Silva intended to kill a police officer. That statement was not inconsistent with a finding that the defendant had a similar intent or that the defendant did the actual shooting.

In the appeal from the first trial in this case, we noted that “a classic duel of credibility” existed between Silva and the defendant, each testifying to the other’s guilt.[9] Commonwealth v. Ferreira, 373 Mass. 116, 127 (1977). In this trial, however, no such duel existed. There was no testimony that Silva, and not the defendant, had done the shooting. Therefore, in the face of direct testimony by two witnesses to the murder that the defendant did the actual shooting, the limitation on testimony regarding the alleged intent of another person earlier that night, albeit one of the witnesses, to do the shooting was, if error, harmless beyond a reasonable doubt.[10]

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2. The defendant argues that it was constitutional error for the trial judge to allow a police officer to testify that the defendant did not respond when asked if he understood the Miranda warnings. We find no error. The short and sufficient answer to the defendant’s argument is that at no time did the Commonwealth use this single response either as evidence of guilt or to impeach an explanation subsequently offered at trial. Cf. Doyle
v. Ohio, 426 U.S. 610 (1976); Commonwealth v. Cobb, 374 Mass. 514, 516-519 (1978). The testimony was elicited during a recounting of the events subsequent to the shooting and was directed at the defendant’s understanding of what had been said. The witness’s reference was not repeated by the prosecutor nor linked to the question of who shot Officer Ruggiero. Any possibility of the jury’s drawing impermissible inferences was negated when the jury were instructed that no inferences should be drawn from the defendant’s silence in the face of Miranda warnings.[11] Finally, on this record, any error that might have occurred in the admission of this single response would be harmless beyond a reasonable doubt.

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3. The defendant also claims that during his closing argument the prosecutor[12] commented on the defendant’s failure to testify, and that reversal is therefore required. There is no doubt that reference to a defendant’s failure to testify at trial is improper. Commonwealth v. Smallwood, 379 Mass. 878, 892 (1980). Taken in context, however, the remarks in the present case reflect an effort to summarize the evidence rather than any attempt to comment on the failure of the defendant to testify. The relevant portion of the argument is set out in the margin.[13] The prosecutor ceased that line of argument as soon as it was objected to by

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the defendant. The argument as a whole was within permissible bounds. See Commonwealth v. Storey, 378 Mass. 312, 323-324 (1979); Commonwealth v. Seay, 376 Mass. 735, 743-745 (1978). Furthermore, during his instructions, the judge instructed the jury that no inference could be drawn from a defendant’s failure to testify. The judge’s instructions were sufficiently clear and complete to negate any possible prejudice to the defendant Commonwealth v. Seay, supra at 745.

We repeat that “[i]n closing argument, counsel may argue the evidence and the fair inferences which can be drawn from the evidence.” Commonwealth v. Hoffer, 375 Mass. 369, 378 (1978). Counsel may also attempt to assist the jury in their task of analyzing, evaluating, and applying evidence. Such assistance includes suggestions by counsel as to what conclusions the jury should draw from the evidence. Counsel may “fit all the pieces of evidence together so that they form a comprehensive and comprehensible picture for the jury.” Commonwealth v. Haas, 373 Mass. 545, 557 n. 11, quoting from Bowler, Oral Argument in Criminal Prosecution, 52 J. Crim. L. 203 (1961). But counsel “may not attempt to have the jury draw inferences from the accused’s decision to exercise [a constitutional right].” Id. at 561.

The defendant also claims to find prosecutorial misconduct in the fact that during his closing argument the prosecutor expressed a personal belief in the defendant’s guilt. In the absence of exceptions below,[14] we read the argument as

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a whole to determine whether it so unfairly prejudiced the defendant as to cause a miscarriage of justice. Se Commonwealth v. Garcia, 379 Mass. 422, 439 (1980).

It is clear that a prosecutor’s statement as to his personal belief in a defendant’s guilt is improper argument Commonwealth v. Earltop, 372 Mass. 199, 203 (1977). We have too frequently had occasion to rule on similar statements.[15]
We disapprove such personal comments by either counsel in closing argument. The remarks in the instant case were, however, argumentative rather than an indication that the prosecutor had personal knowledge of the defendant’s guilt. Without detailing the specific instances where the prosecutor used the pronoun, “I,” a reading of the summation makes it abundantly clear that the prosecutor was summing up the best case for the Commonwealth and not expressing his personal belief as to the defendant’s guilt. Read as a whole, the argument, while inartful, was not unfairly prejudicial. Moreover, the judge instructed the jury that the belief or opinion of counsel was not to be considered by the jury. See note 14, supra. In these circumstances, there is no error.

We reiterate our admonition that “[m]embers of the bar, however, would be most ill-advised to consider that each departure from the norm which is not so grievous as to precipitate a reversal of a conviction sets a new and less elevated standard for lawyers’ behavior.” Commonwealth v Johnson, 372 Mass. 185, 197-198 (1977).

4. The defendant suggests that, taken in combination, the errors he alleges require that we exercise our extraordinary power pursuant to G.L.c. 278, § 33E, and grant a

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new trial. We think that the defendant was fairly tried and that there is no reason to order a new trial. Consonant with our duty under § 33E we have reviewed the record and the transcript and nothing therein warrants entry of a verdict of a lesser degree of guilt.

Judgment affirmed.

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