Commonwealth v. Rupert A. Weeks, June 10, 2010
Witness Confrontation, Argument by Prosecutor, Business Record, Prior Conviction, Firearms
The defendant was found guilty by a Superior Court jury of unlawful possession of a firearm without a license, and not guilty of unlawful possession of ammunition without a firearm identification card, and assault by means of a dangerous weapon. A Superior Court judge found the defendant guilty on the charge of carrying a firearm without a license, subsequent offense. The defendant appealed from his two convictions arguing that the judge’s admission of docket sheets to prove prior convictions during the subsequent offense trial violated his confrontation rights under the 6th Amendment to the US Constitution. He also raised various trial issues. The Appeals Court affirmed the convictions.
Facts
Officers conducted surveillance of a birthday party at a house on the basis of information received in a telephone call. Lassiter and three friends stood by the entrance of the house to search people entering the party for alcohol or weapons. After searching the defendant, Lassiter felt something heavy in his pocket and saw the grip of a gun. The defendant and another man stood outside the house while partygoers converged around them. The police officers began to move toward the crowd after seeing a man on the ground being kicked. Lassiter testified that the defendant pulled out a gun and fired it in the direction of a restaurant. The crowd dispersed.
One of the detectives saw the defendant duck between a parked car and a snowbank. The detective recognized the defendant because of prior interactions. The detective searched the area the defendant had been hiding and found a gun with four live bullets and four empty shells in the cylinder. On appeal, the defendant raised three trial issues, claiming (1) error relating to gang affiliation evidence; (2) error relating to the Commonwealth’s opening and closing argument; and (3) that the evidence was insufficient.
Certified docket sheets and confrontation clause
During the jury-waived trial on the subsequent offense charge, the Commonwealth introduced two certified copies of conviction to prove that the defendant had been convicted of unlawful possession of a firearm on prior occasions. The defendant argued the docket sheets constituted testimonial hearsay. The Commonwealth argued that the certified convictions qualified as business records admissible under Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).
The issue was whether certified records of convictions are created for the “administration of an entity’s affairs” or “for the purpose of establishing or proving some fact at trial.” Id. at 2539-2540. A determination for the former would constitute business records; a determination for the latter would constitute testimonial hearsay. The Appeals Court noted that certified convictions are created to establish the fact of adjudication, are used for a number of administrative purposes, are not prepared for an upcoming case, and are not testimonial since the authors are not witnesses against the criminal defendant. Additionally, docket sheets are not testimonial under the two-part inquiry set forth in Commonwealth v. Gonsalves, 445 Mass. 1, 3 (2005). In the present case, the Commonwealth sought to use records of the defendant’s prior convictions to prove that he had been convicted before, not to prove an underlying evidentiary fact.
The Appeals Court held that certified docket sheets of conviction are distinguishable from drug certificates and do not constitutionally require cross-examination. Their admission did not violate the defendant’s 6th Amendment rights.
Admission of defendant’s gang affiliation
The judge admitted evidence of the defendant’s affiliation with a North Side gang known as the “Annis Ave. Soldiers,” but barred the use of the word “gang” because of undue prejudice to the defendant. The judge did not ask a question about gang membership to prospective jurors during voir dire. He also did not issue a limiting instruction to the jurors regarding gang membership. The Commonwealth presented the incident as a fight between rival groups. It was articulated as a North Side/South Side dispute between “groups of young men that hang around together,” with the North Side planning to crash the birthday party.
The defendant argued that evidence of gang affiliation was irrelevant and unfairly prejudicial. Gang affiliation evidence is admissible to show motive. Commonwealth v. John, 442 Mass. 329, 337 (2004). When gang affiliation is relevant to the defendant’s motive, “it is within the discretion of the judge to weigh the probative value of the evidence against its prejudicial effect.” Commonwealth v. Correa, 437 Mass. 197, 201 (2002). The Appeals Court held that the evidence was relevant to prove the defendant’s motive for having a gun and firing it, and that the judge did not abuse his discretion by permitting the Commonwealth to introduce evidence of the defendant’s affiliation with the North Side group and its dispute with the South Side.
The prosecutor’s opening statement and closing argument
The Appeals Court held that the prosecutor’s opening statement and closing argument did not create a substantial risk of a miscarriage of justice. (1) The Commonwealth’s reference to an alerting call to the police was made with a good faith belief that he would be able to prove that fact. Although it is inappropriate to reference facts that are not supported by the admitted evidence, the reference to the telephone call to the police was not a material issue in the trial. (2) The prosecutor’s closing argument did not inappropriately vouch for the witness Lassiter, because he did not inject his own personal beliefs about her credibility. (3) The prosecutor’s comments regarding Lassiter’s fear of testifying were appropriate. Where, as here, there is evidence of a witness’s fear of testifying, “a prosecutor may argue that it took ‘courage’ or ‘character’ for a witness to testify.” Commonwealth v. Pina, 430 Mass. 266, 269 (1999).
- Prepared by AYK
