NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Franklin 465 Mass. 895 (2013)

CONTRIBUTING EDITOR: LOUISA GIBBS I. Procedural History A Superior Court jury convicted the defendant, Lewis Franklin, of first- degree murder based on deliberate premeditation for killing the victim, John Falcone; the defendant appealed.1 The Supreme Judicial Court (SJC) affirmed and declined to order a new trial or reduce the murder conviction.2 II. Facts On August 23, 2004, three people, including the victim, wanted to buy a twenty rock of crack cocaine.3 The three people pooled together fourteen dollars, called the defendant (known as G), and asked to purchase crack cocaine despite being short the full price, which was usually twenty dollars.4 The defendant met them in a pizza restaurants parking lot, conducted the transaction, and left.5 The three purchasers went to a nearby park to smoke it, but soon learned that it was not real crack cocaine.6 The purchasers became upset and called the defendant until he answered; the victim took the phone, cursed at the defendant, and the defendant agreed to meet them at the pizza restaurant parking lot to make it right but he never showed up.7 A friend of the victims, Edmondson, saw that the victim appeared
1 2 3 4 5 6 7

Commonwealth v. Franklin, 465 Mass. 895, 896 (2013). Id. Id. at 896. Id. at 896-897. Id. at 897. Id. Commonwealth v. Franklin, supra at 897.

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

10

N e w E n g . L . R e v . M a s s . C r i m . D i g .

v. 48 | 9

pretty mad about getting ripped off by a guy named G.8 Edmondson pointed the victim towards Prospect Street, where he believed the defendant lived.9 The victim approached 28 Propsect Street, where Kirsha Hilliard lived on the third floor, her parents lived on the second floor, and the defendants motherWanda Franklinlived on the first floor.10 At trial Kirsha testified that she saw the victim pacing outside of the property, who told her that he was looking for G because G had beat [the victim] for some drugs.11 Kirsha further testified that the victim threatened to destroy Wandas property by throwing rocks at it, but Kirsha directed the victim next door where the defendant resided.12 She then went inside and told Wanda about her interaction with the victim.13 Wanda testified that she found her son in the kitchen and asked him what he was doing outside.14 When he answered equivocally, she gave him a look indicating dissatisfaction and then got ready for work.15 Wanda further testified that she did not divulge any specific information to the defendant that Krisha told her.16 Soon after, the defendant left the house and called one of the three purchasers asking for the white boy [they] were with in reference to the victim; the purchasers directed the defendant to the victim.17 The defendant and the victim met and, exchanging words, the defendant walked in one direction while the victim followed a few minutes later and then gun shots were heard.18 Officer Noone reported to the scene of the crime upon receiving a dispatch that shots were fired, and there found the victim with a gun wound that he died from soon after.19 There were a myriad of civilian witnesses describing the events immediately before, during, and after the shooting.20 For instance resident Nina Hall, who heard but did not see the shooting, overheard two men arguing about one going to the others house and being disrespectful as
8 9

Id. at 898. Id.

10 Id. 11 Id. 12 Id. 13 Commonwealth v. Franklin, supra at 898-899. 14 Id. at 899. 15 Id. at 899. 16 Id. 17 See id. 18 Id. at 900-901. 19 Commonwealth v. Franklin, supra at 900-901. 20 See id. at 898-905.

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

2013

C o m m o n w e a l t h v . F r a n k l i n

11

well as something about fifteen dollars.21 Fourteen-year-old Robert Fuqua, whose room overlooked the scene of the crime, testified that he overheard a brawl between two men about money; he heard a shot; and, upon looking out of his window, saw a man in a black hat, black coat, and blue jean shorts with light brown skin run away.22 Roberts sixteen-year-old brother, Willie, testified to the same description as Robert for one of the men, and he recalled the man demanding $1,000, something about five more dollars, and then four to five gun shots occurring.23 Eyewitness Erika Luyo saw a young black man walking towards the crime scene and, upon hearing the gunshots, saw the same man with a gun in his hands running towards Prospect Street.24 Later that day, Erika Luyo identified the shooter in a photo array , saying that the shooter looked like No. 2 but he had hair like No. 4No. 2 was the defendant.25 Prior to the photo array, Luyo was informed that the shooter may or may not be in the photos and she expressed at trial that she was not sure about her identification.26 Moreover, Kirshas thirteen-to-fourteen-year-old son, Josiah, and ten-to- eleven-year-old daughter, Imani, testified to the following: (1) knowing the defendant as G; (2) seeing his exit the crime scene by jumping over a fence after the shots were fired; and (3) asking the defendant where he was going, to which he did not respond.27 Before the second grand jury in October 2007, the defendants cousin, Carlos Hill, testified that the defendant informed him that he went to Florida because of the shooting: the defendant told him that he had played the dude . . . , the dude realized it, and . . . the dude told him he was going to throw rocks at [his] aunts house, and they met again at the eventual crime scene where the defendant shot the victim four times.28 But at trial, Hill testified that his 2007 testimony was incorrect; the defendant told Hill that he left for Florida on the run from probation.29 III. Issues Presented 1. Whether the Judge erred in allowing the Commonwealths motion in limine admitting Kirsha Hilliard and Troy Edmondsons testimony regarding the victims threat to damage what he believed to be the
21 Id. at 901-902. 22 Id. at 902. 23 Id. at 902-903. 24 Id. at 903. 25 Commonwealth v. Franklin, supra. 26 Id. at 903. 27 Id. at 904. 28 Id. at 905-906. 29 Id. at 906.

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

12

N e w E n g . L . R e v . M a s s . C r i m . D i g .

v. 48 | 9

defendants house.30 2. Whether the defense counsels failure to request a specific instruction on eye witness identification, when given the chance to submit such an instruction, and the defense counsels failure to object to the absence of such an instruction, constituted ineffective assistance of counsel.31 3. Whether the prosecutor made three improper and prejudicial statements during the closing arguments.32 4. Whether the Court should exercise its authority under G.L. c. 278, s. 33E to grant the defendant a new trial because inconsistencies within the testimony rendered the verdict against the weight of the evidence.33 IV. Holdings and Reasoning 1. The judge did not err in admitting the testimony of Kirsha or Edmonson describing the victims threats because, based on the totality of the evidence, the jury could reasonably infer that the defendant knew of the victims threat against his mothers house when the shooting took place and that the defendant was motivated, at least in part, by these threats.34 The SJC reviewed this issue under the prejudicial error standard: the testimony was only admissible if there was evidence that the defendant learned of the victims remarks before the shooting occurred and the remarks provided the defendant with a motive to kill the victim.35 The SJC found that the record contained abundant evidence for the jury to infer that the defendant learned of the victims threats that, in turn, provided a motive for the defendant to kill the victim.36 The jury could infer this knowledge based on the following: (1) Hills 2007 grand jury testimony telling the court that the defendant told him that he knew the victim had threatened his mothers home with violence; (2) the defendant calling one of the three purchasers asking about the white boyin reference to the victimonce the victim had just left his mothers premises; and (3) just before the shooting, witness Nina Hall heard the defendant confront the victim about going to his house being disrespectful.37 2. The absence of a specific identification instruction suggested by the
30 See id. at 906-907. 31 Commonwealth v. Franklin, supra at 908-909. 32 Id. at 914-915. 33 Id. at 916. 34 See id. at 908. 35 Id. at 907. 36 Id. 37 Commonwealth v. Franklin, supra at 908.

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

2013

C o m m o n w e a l t h v . F r a n k l i n

13

defendant was not likely to have influenced the jurys verdicts, particularly concerning Erika Luyos and Troy Edmonsons testimony on the events before the shooting, which means that the error did not result in the substantial likelihood of a miscarriage of justice.38 The Court came to this conclusion because the judge provided a jury instruction on evaluating a witnesss credibility: the jurors were informed to consider the ability, the opportunity, and the reliability of a witness to see or hear something in the past and then remember and later testify.39 Erika Luyos testimony from the photo array clearly asserted on direct and cross-examination that she was not sure of her identificationthe prosecutor even conceded this fact during closing arguments.40 Further, defense counsel elicited reasons for the jury to discredit Troy Edmonsons testimony that he saw the defendant and the victim running towards the eventual crime scene, one such reason being that Edmonson was an alcoholic under the influence the evening before and the morning of the shooting.41 Besides, Nina Halls testimony about the conversation between the defendant and the victim stands as the strongest evidence that the defendant instigated the crime, and an identification instruction from defense counsel would not have influenced the jurys interpretation of this evidence.42 3. The prosecutor made an improper statement during closing arguments that did not create a substantial likelihood of a miscarriage of justice.43 During closing arguments, defense counsel (1) did not object to the prosecutor misquoting the defendants testimony, (2) made a factual assertion as to the color of the defendants hat, and (3) inferred that it was more plausible for the defendant to leave the state for shooting the victim as opposed to avoiding probation.44 First, the Court found the misquoting error inconsequential because the testimony clearly described a confrontation between the defendant and the victim.45 Second, with regard to the assertion about the hat, the testimony corroborated the eyewitnesss statement that the defendant wore a white hat.46 Finally, concerning the plausibility of the defendant leaving the state, the jury had the option to weigh Hills 2007 grand jury testimony against his present testimony
38 Id. at 914. 39 Id. at 908-909. 40 Id. at 913. 41 Id. at 913-914. 42 Id. at 914. 43 Commonwealth v. Franklin, supra at 914-915. 44 Id. at 914-917. 45 Id. at 915. 46 Id.

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

14

N e w E n g . L . R e v . M a s s . C r i m . D i g .

v. 48 | 9

unaffected by the prosecutors assertion.47 4. The Court found that the weight of the evidence supported the jurys verdict of murder in the first degree, and therefore declined to use their authority under G.L. c. 278, s. 33E for a new trial order or to reduce the severity of the defendants verdict.48 This law enables the SJC to overturn a verdict when there is a strong belief that the verdict was a product of bias, misapprehension or prejudice all the while not turning the SJC into a second jury.49 While the possibility existed that a third person could have shot the victim, the evidence provides a strong basis that the defendant was the shooter despite the inconsistent testimony regarding the defendants clothing.50 V. Impact on the Law Commonwealth v. Franklin impacts the standard Massachusetts courts consider when evaluating evidence pertaining to the state-of-mind exception to the hearsay rule: the SJC considered the totality of the evidence when determining the defendants state-of-mind, which was a standard not applied in more recent cases that faced the same, or a similar issue, since prior cases just considered the existence of evidence.51 Therefore, this suggests that the SJC will continue to apply the totality of the circumstances standard.52

47 Id. 48 Id. at 916. 49 Commonwealth v. Franklin, supra. 50 Id. at 917. 51 Compare id. at 907-908, with Commonwealth v. Bins, 465 Mass. 348, 365-367; Commonwealth v. Irene, 462 Mass. 600, 605-606. 52 See Commonwealth v. Franklin, supra at 907-908.