Summary
The Massachusetts Supreme Judicial Court affirmed Tommy Birks’s convictions for two counts of murder in the first degree and illegal firearm possession, as well as the denial of his motion for a new trial. The court held that the defendant’s confrontation and cross-examination rights were not violated by limiting inquiry into a cooperating witness’s privileged attorney-client communications, and that the jury instruction error concerning consciousness of guilt was adequately cured. The court also upheld the denial of an involuntary manslaughter instruction and declined relief under G. L. c. 278, § 33E.
Topics
Practice areas
Questions Presented
- Whether Birks was denied his confrontation and cross-examination rights when the trial judge sustained an objection to questioning a cooperating witness about privileged conversations with the witness's attorney concerning a possible manslaughter plea.
- Whether the trial judge's mistaken reference in the jury charge to excluded evidence of Birks hiding in a closet required a mistrial.
- Whether the evidence supported an instruction on involuntary manslaughter.
- Whether the trial judge abused her discretion by denying an evidentiary hearing on Birks's motion for a new trial concerning the Commonwealth's promise of consideration to cooperating witnesses.
- Whether the court should reduce the murder convictions or order a new trial under Mass. Gen. Laws ch. 278, § 33E.
Holdings
- The defendant's confrontation and reasonable cross-examination rights were not violated when the judge sustained an objection to a broad question about the witness's conversations with his attorney, because the question could have elicited privileged communications and the subject of the witnesses' promises, rewards, inducements, hopes, and expectations had otherwise been adequately placed before the jury.
- The judge's mistaken reference to excluded evidence did not require a mistrial because the prompt and strong curative instruction adequately corrected the error, and the jury were presumed to follow the instruction.
- The trial judge properly refused to instruct on involuntary manslaughter because no rational view of the evidence supported a finding that Birks acted with wanton or reckless conduct rather than malice.
- The judge acted within her discretion in deciding Birks's new-trial motion on the pleadings and affidavits without holding an evidentiary hearing because the motion did not raise a substantial issue requiring oral testimony and the material question was primarily one of law.
- After reviewing the entire record, the court found no reason to reduce the murder verdicts or order a new trial under § 33E.
Key quotations
“When the Commonwealth promises anything to a witness to induce him to testify, even though it be no more specific than “consideration” in future proceedings, that communication is a promise, reward, or inducement that must be disclosed to the defendant.” (at 787)
“The attorney-client privilege, when properly applied, should present no obstacle to inquiring into promises, rewards, and inducements made by the Commonwealth either directly to the witness or through counsel.” (at 788)
“Generally, as long as the judge’s instructions are prompt and the jury do not hear the inadmissible evidence again, a mistrial is unnecessary.” (at 790)
“If any view of the evidence would permit a verdict of manslaughter rather than murder, a manslaughter charge should be given.” (at 790)
Factual background
Two men were shot and killed in a Holyoke park after a group meeting at which Jose Maldonado announced that he would kill Jose Sanchez. Birks retrieved, loaded, and provided a handgun to Maldonado shortly before the shootings, told Maldonado where the gun was located, and was present when Maldonado shot Sanchez and Felix Colon. Two cooperating codefendants, Jose Velez and Jason Souza, testified for the Commonwealth after being told that their cooperation would be taken into consideration in resolving their own criminal charges.
Procedural history
Birks was tried separately from codefendant Jose Maldonado and convicted on a joint-venture theory. After the trial court denied his motion for a new trial, Birks appealed that ruling along with his convictions. The Supreme Judicial Court found no error, affirmed the judgments, affirmed the order denying a new trial, and declined to reduce the murder verdicts or order a new trial under § 33E.