Commonwealth v. Vick

Botsford, J.

(concurring in part and dissenting in part, with whom Cordy, L, joins). I agree with the court that (1) no instruction on armed assault with intent to kill was warranted in this case, and (2) the defendant’s convictions of armed assault with intent to murder and of assault and battery by means of a dangerous weapon were not duplicative. I disagree, however, that the trial judge properly instructed the jury on consciousness of guilt. Nevertheless, because I conclude that this error was harmless, I concur in the court’s conclusion that the judgments in this case should be affirmed.

Before closing arguments, the prosecutor made a request to the judge for a consciousness of guilt instruction. The prosecutor supported the request with the argument that (1) the evidence of the defendant’s attempt to walk away from the scene in Glendale Park where his companions and cousin were being arrested suggested flight by the defendant; and (2) the defendant’s

*437 statements to the police (a) that he was in the park to go to the pool with his cousin, and (b) that he had given his black Trix T-shirt to his cousin once in the jail because his cousin was cold, could be found to be false statements. The prosecutor’s closing argument brought up these same grounds. As he had indicated he would (but over the defendant’s objection), the judge instructed the jury on consciousness of guilt, mentioning specifically evidence suggesting flight from the scene by the defendant and false statements by the defendant as evidence that the jury might accept and might conclude indicated consciousness of guilt. 1

I agree with the court that the judge’s instruction conformed to the standards of Commonwealth v. Toney, 385 Mass. 575, 585 (1982), was well balanced, and properly emphasized that it was the jury’s obligation to decide what the facts were in the case and what inferences to draw. See ante at 426. The difficulty lies with the nature of the evidence relied on by the judge and by this court to justify a consciousness of guilt instruction. 2

The court discusses allegedly false statements by the defendant as the first possible basis for a finding of consciousness of guilt, and identifies two separate statements that in its view so qualify. I agree with the court’s analysis about the first of these, namely, the defendant’s statement to a State trooper that he was en route with his cousin to a swimming pool at the time of the shooting. See ante at 425. I do not agree about the second — the defendant’s statement that he gave his cousin the T-shirt because bis cousin was cold. The court states that the jury could infer that the defendant gave his cousin his T-shirt in the holding cell to prevent being identified by potential eyewitnesses. Ante at 425-426. However, this appears to be unfounded speculation on the court’s part, given the fact that at the same time *438 the defendant explained to the police that he had given the T-shirt to his cousin to help with the cold, the defendant also acknowledged to them that he had been wearing that shirt all day. 3 In my view, this acknowledgment essentially removed the basis for any conclusion that the defendant was providing a false statement, and therefore a consciousness of guilt instruction premised on false statements should not have been given.

The court next considers the evidence of flight. It agrees with the defendant, as do I, that the evidence indicating the defendant walked away from the part of the park where the police were arresting his companions did not suggest “flight,” and could not be the basis of an instruction on consciousness of guilt. Ante at 427 n.7. The court, however, points to the evidence that the defendant (and the group he was with) ran from the street where the shooting occurred back into Glendale Park and concludes that this qualified as “flight” evidence warranting the consciousness of guilt instruction. I disagree for two reasons. First, it is inappropriate for the court on appeal to rely on different evidence, not relied on or brought to the jury’s attention by the parties or the judge, to justify the judge’s inclusion of flight by the defendant as evidence suggesting consciousness of guilt.

Second, and more importantly, as in Commonwealth v. Groce, 25 Mass. App. Ct. 327, 331-332 (1988) (Groce), there is a fundamental question about the aptness and fairness of a consciousness of guilt instruction in a case such as this, where the defense is one of misidentification. Here, as in Groce , there was no doubt that a criminal event occurred, and there was no evidentiary basis on which to dispute that the shooter (along with his companions) ran away from the scene of the shooting into the park. The issue in controversy was whether the defendant was the shooter. There was evidence that the shooter was wearing a black Trix T-shirt, and evidence that the defendant was wearing a black Trix T-shirt on the day of the shooting and in particular when Stephen Reid and Bernard Lloyd, Jr., identified him to the police in the showup identification procedure conducted shortly after the shooting. But there is nothing about the fact that the assailant, wearing a black *439 Trix T-shirt, ran from the scene of the shooting that would itself “give rise to a reasonable inference that the defendant was the assailant.” Groce, supra at 332 . In other words, for the jury to consider the evidence that the assailant “fled” from the immediate scene of the shooting as consciousness of guilt on the defendant’s part, they would need first to conclude, based on separate evidence, that the defendant was in fact the shooter; otherwise, they would have no basis on which to ascribe the act of fleeing to the defendant at all.

In these circumstances, the judge’s instruction to the jurors that they “may have heard evidence suggesting that the defendant may have fled from the scene” of the shooting essentially merged together what were necessarily two independent lines of inquiry for the jury: (1) whether the defendant was the assailant; and, if so, (2) whether his running from the shooting reflected consciousness of guilt. This conflation was not proper. See Commonwealth v. Pina, 430 Mass. 266, 272 (1999) (“As the Appeals Court [in Groce] reasoned, there is no rationale for a consciousness of guilt instruction where the only contested issue is identification and there is no dispute that the person fleeing the scene of the crime was the same as the assailant”).

In the circumstances, where (as I view the evidence) it was not permissible for the jury to find consciousness of guilt based on one of the two proffered allegedly false statements or based on evidence of flight, I conclude that the particular instruction about consciousness of guilt given by the judge was error. Nevertheless, I also conclude that the error was not prejudicial. This is so in part because there was at least one allegedly false statement that would justify the giving of a consciousness of guilt instruction — and therefore this is not a case where it was error to give the instruction at all. Primarily, however, I reach the conclusion concerning the lack of prejudice because the identification evidence pointing to the defendant as the shooter, offered by Reid and Lloyd, was so strong. In the circumstances, I am confident that the jury’s verdict “was not substantially swayed by the error.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983). Accordingly, I concur in the affirmance of the defendant’s convictions.

The judge said, specifically: “You may have heard evidence suggesting that the defendant may have fled from the scene that a shooting occurred. And you may also have heard testimony that the defendant may have made false or misleading statements to the police after the time of his arrest.” See ante at 422 n.4, for the entire consciousness of guilt instruction.

In his instruction to the jury, the judge first mentioned evidence of flight and then evidence of false statements, but the court here discusses evidence of false statements first and flight second. I follow the court’s order in the following paragraphs.

Furthermore, the only eyewitnesses (other than the victim) apparently known to the police, Stephen Reid and Bernard Lloyd, Jr., had already identified the defendant in the Trix T-shirt.