Commonwealth v. Bookman

• Court: Massachusetts Supreme Judicial Court
• Decided: July 12, 2023
• Docket: SJC 13132
• Status: Published

Opinion

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SJC-13132

COMMONWEALTH vs. AARON BOOKMAN.

Bristol. May 1, 2023. – July 12, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

Homicide. Firearms. Evidence, Third-party culprit. Practice, Criminal, Capital case, Instructions to jury, Harmless error. Error, Harmless. Constitutional Law, Harmless error.

Indictments found and returned in the Superior Court Department on April 5, 2016.

The cases were tried before Renee P. Dupuis, J.

Michael Tumposky for the defendant. Mary Lee, Assistant District Attorney, for the Commonwealth.

GAZIANO, J. After a joint trial with his codefendant,

Angel Acevedo, see Commonwealth v. Acevedo, 492 Mass. (2023),

a Superior Court jury convicted the defendant, Aaron Bookman, of

deliberately premeditated murder in the first degree and

unlawful possession of a firearm. In this direct appeal, he 2

presents issues also raised by the codefendant on appeal:

first, whether the judge erred in excluding third-party culprit

evidence demonstrating that the victim of the crime, and his

associates, were armed and dealing drugs on the night of the

fatal shooting; and second, whether this evidence also was

admissible to cast doubt on the adequacy of the police

investigation. See id. at . Finally, the defendant asks

this court to exercise its statutory authority pursuant to G. L.

c. 278, § 33E, to grant him a new trial or to reduce the murder

in the first degree conviction to a lesser degree of guilt. In

a letter pursuant to Mass. R. A. P. 16 (l), as appearing in 481

Mass. 1628 (2019), the defendant raises an addition claim

challenging his conviction of unlawful possession of a firearm

due to the judge's failure to instruct the jury that the

Commonwealth was required to prove an absence of licensure. See

Commonwealth v. Guardado, 491 Mass. 666, 690, 693 (2023). For

the following reasons, we affirm the defendant's convictions and

decline to exercise our authority to grant extraordinary relief.

1. Facts. The facts are recited in Acevedo, 492 Mass.

at , and supplemented as necessary in our analysis.

2. Discussion. a. Third-party culprit and Bowden

evidence. The defendant argues that the judge erroneously

excluded evidence that police officers found illegal narcotics

in the Mercedes sport utility vehicle (SUV) occupied by the 3

victim and in the victim's clothing. This evidence was

admissible, he contends, "to expose the role that New Bedford's

drug trafficking trade may have played in the murder." A new

trial is required, he maintains, because the judge's ruling

"deprived the defense of the plausible alternative theory that

rival drug dealers committed the murder."

Prior to addressing the merits of the defendant's claim, we

discuss whether he preserved this issue for appeal. The

Commonwealth filed motions in limine to exclude (1) evidence of

drugs; (2) evidence of knives found in or near the SUV; and (3)

third-party culprit evidence. The codefendant filed oppositions

to the Commonwealth's motion to exclude evidence of drugs and to

restrict the defense of a third-party culprit. See Acevedo, 492

Mass. at . The defendant did not file a responsive pleading

to any of these motions in limine brought by the Commonwealth.

The codefendant's counsel took the laboring oar in the

motion hearings. He contended that evidence of drug dealing was

admissible to prove that the occupants of the SUV "were leading

a lifestyle that is not conducive to health." If the victim or

his friends were engaged actively in hostilities with rival drug

dealers, the codefendant's counsel argued, this evidence would

counter the Commonwealth's theory that the murder was motivated

by gang rivalry. The defendant's counsel, providing an

equivocal response to excluding evidence of drugs and drug 4

dealing, stated, "Well, I think they should probably hear it. I

can understand that a lot of it -- I don't see much of a

connection." The judge ruled that evidence of drugs and drug

dealing was not admissible "until such time the defendants

establish that there's some relevance to this particular

homicide."

The parties dispute whether defense counsel's statement

that the jury "should probably" hear the evidence of the drugs

recovered and that the occupants of the SUV were engaged in drug

dealing, while discounting its probative value, preserved the

issue for appeal. In general, counsel is required to object to

preserve a claim for appellate review. See Commonwealth v.

Whelton, 428 Mass. 24, 26 (1998); Mass. G. Evid. § 103(a)(1)(A)

(2023). "A timely and precise objection not only preserves the

aggrieved party's appellate rights but, more importantly,

afford[s] the trial judge an opportunity to act promptly to

remove from the jury's consideration evidence [or the effect of

an initially improper ruling] which has no place in the trial"

(quotation omitted). Commonwealth v. McDonagh, 480 Mass. 131,

137 (2018). Where an objection is raised, we review to

determine "(1) was there error; and (2) if so, was that error

prejudicial." Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).

At a murder trial, however, issues on which no objection is

raised are reviewed for a substantial likelihood of a 5

miscarriage of justice. Commonwealth v. Andre, 484 Mass. 403,

406 (2020).

In this case, it does not matter whether the defendant

properly raised an objection because the codefendant's objection

to the exclusion of the drug evidence preserved the issue for

both defendants. See Commonwealth v. DePina, 476 Mass. 614, 624

n.9 (2017) (in joint trial, codefendant's objection preserved

issue also for defendant who did not object). See also

Commonwealth v. Robertson, 489 Mass. 226, 237, cert. denied, 143

S. Ct. 498 (2022) (codefendant objection preserves error for

defendant where issue fairly was presented to judge in time to

take appropriate action). As the Appeals Court noted in

Commonwealth v. Charles, 57 Mass. App. Ct. 595, 598 n.7 (2003),

it would be "bizarre" to apply different standards of review to

coventurers in a joint trial due to counsel's failure to "pipe

up and say 'me too.'" Accordingly, we review the defendant's

claim for prejudicial error.

We addressed the identical third-party culprit issue in

Acevedo, 492 Mass. at . In that opinion, we rejected the

proposition that "a victim's status as a drug dealer, standing

alone, provides a ready-made third-party culprit defense." Id.

at . Based on the codefendant's inadequate proffer, "the

judge properly excluded the proffered third-party culprit

evidence consisting of drug dealing by the occupants of the SUV, 6

and the drugs found in the SUV and the victim's clothing. There

was nothing more than rank speculation that the victim was shot

by an unnamed rival drug dealer as a consequence of leading an

unhealthy 'lifestyle.'" Id. See DePina, 476 Mass. at 630

(judge properly excluded speculative theory that unknown rival

drug dealers had motive to kill victim, in absence of any

further evidence). For the same reasons, the defendant is

unable to establish that the judge abused her discretion in

excluding evidence of drugs and drug dealing.

Similarly, the evidence was not admissible as part of a

Bowden defense. See Commonwealth v. Bowden, 379 Mass. 472, 485-

486 (1980). The defendant argues, on appeal, that he had a

right to confront any inadequacies in the police investigation

including the existence of "other enemies in the city." In

Acevedo, 492 Mass. at , we explained that the "rival drug

dealer theory," which was "'no more than speculation and

conjecture,' did little to cast doubt on the adequacy of the

police investigation. [Commonwealth v. ]Martinez, 487 Mass.

[265,] 271 [(2021)]. 'It therefore did not have "sufficient

indicia of reliability"' to qualify as Bowden evidence (citation

omitted). Id."

Finally, we examine the defendant's contention that the

judge improperly excluded third-party culprit evidence

consisting of (1) knives found inside and near the SUV and (2) 7

crimes committed by the occupants of the SUV before and after

the murder. The defendant did not raise either claim in the

trial court. In fact, defense counsel conceded that the knives

(found closed in a folded position) were not relevant to a

third-party culprit defense. He stated: "There's no use [of

the knives]. There's no flashing." Because the knives did not

"point the finger of blame at another culprit," Acevedo, 492

Mass. at , the exclusion of this evidence did not create a

substantial likelihood of a miscarriage of justice.

The same is true for the defendant's contention that the

judge improperly precluded evidence of "other adversaries"

consisting of crimes committed by the surviving occupants of the

SUV. The evidence, he claims, consisted of the following:

Louis Class's arrest in 2013 for unlawful possession of a

firearm and ammunition; Class's arrest in August 2016 for the

stabbing murder of a teenager; Aaron Watkins's and Desmond

Roderick's arrests for smuggling drugs into Martha's Vineyard;

and Class's, Watkins's, and Roderick's incarcerated status at

the time of trial. The defendant did not seek to admit evidence

of Class's criminal history or the custody status of the

victim's friends as third-party culprit evidence. The

codefendant, for his part, merely argued that Class's charges

were admissible to counter the Commonwealth's attempt to portray

the occupants of the SUV as sympathetic crime victims. Acevedo, 8

492 Mass. at n.6. We noted, in Acevedo, that the

codefendant "did not provide the judge with an adequate offer of

proof establishing that Class's pending criminal charges were

evidence that 'other adversaries' were responsible for the

shooting." Id. Moreover, the jury understood that at least two

occupants of the SUV were drug dealers and were incarcerated at

the time of trial; the Commonwealth introduced evidence of

recorded jail telephone calls between the codefendant and a

friend discussing Watkins's and Roderick's arrests and sentences

for a large Martha's Vineyard "drug bust."

b. Unlawful possession of a firearm. The defendant

challenges his conviction of unlawful possession of a firearm,

pursuant to G. L. c. 269, § 10 (a), based on the absence of a

jury instruction requiring the Commonwealth to prove that the

defendant did not have a valid license to possess a firearm.

Recently, in Guardado, 491 Mass. at 690, we held that "to

convict a defendant of unlawful possession of a firearm, the

Commonwealth must prove 'as an element of the crime charged'

that the defendant in fact failed to comply with the licensure

requirements for possessing a firearm." Our decision was based

on the United States Supreme Court's recognition, in New York

State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111, 2122

(2022) (Bruen), that the Second Amendment to the United States

Constitution protects an individual's right to carry a firearm 9

outside the home. For that reason, our precedent predicated on

a narrower view of the rights secured by the Second Amendment,

see Commonwealth v. Gouse, 461 Mass. 787, 807 (2012), was no

longer valid. Guardado, supra at 689-690. The Guardado holding

applied prospectively and to those cases, like this one, that

were active or pending on direct review as of the date of the

issuance of Bruen. Id. at 694.

Without the benefit of the United States Supreme Court's

holding in Bruen, or of our ruling in Guardado, the judge did

not instruct the jury that the Commonwealth was required to

prove an absence of a valid license, and the defendant did not

object to the instructions. The judge, in accordance with

Gouse, 461 Mass. at 787, instructed the jury: "The Commonwealth

is . . . not required to prove that the defendant knew that the

law requires a person to have a license to possess a firearm

legally. The license element of this indictment is not relevant

to your deliberations and you should put it out of your minds."

When the issue appealed is not preserved, we usually apply

"a default standard of review" and grant relief if the error

created a substantial risk of a miscarriage of justice.

Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002). In

Guardado, however, we applied the clairvoyance exception to

excuse the failure to object to an absence of licensure jury

instruction because "the constitutional theory on which the 10

defendant . . . relied was not sufficiently developed at the

time of trial . . . to afford the defendant a genuine

opportunity to raise his claim." Guardado, 491 Mass. at 686,

quoting Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984).

Here, similarly, the defendant did not have an "an adequate

opportunity at the time of his trial to raise the present

issue." Guardado, supra. Because the clairvoyance exception

applies, "[t]he remaining question is whether the error was

harmless beyond a reasonable doubt." Commonwealth v.

D'Agostino, 421 Mass. 281, 286-287 (1995).

Here, a police officer testified that neither the defendant

nor the codefendant had a license for a firearm. There is

nothing in the record to suggest that the defendant disputed

this testimony, or that the officer's credibility was in

question. Based on the police officer's uncontroverted

evidence, we are confident that the failure to instruct the jury

on licensure was harmless beyond a reasonable doubt. See

Commonwealth v. McCray, 93 Mass. App. Ct. 835, 847 (2018),

quoting Neder v. United States, 527 U.S. 1, 17 (1999) ("where

'the omitted element was uncontested and supported by

overwhelming evidence, such that the jury verdict would have

been the same absent the error, the erroneous instruction is

properly found to be harmless'"). 11

c. Relief pursuant to G. L. c. 278, § 33E. The defendant

asks us to exercise our authority under G. L. c. 278, § 33E, to

enter a not guilty verdict because the weight of the evidence

did not support the murder conviction. As grounds for this

extraordinary relief, he points to alleged shortcomings in the

Commonwealth's case, including the lack of eyewitness testimony,

the poor quality of the surveillance videos, the inability of

cell site location information records or cell tower records to

pinpoint his exact location at the time of the shooting, and the

absence of fingerprint or deoxyribonucleic acid (DNA) evidence

connecting him to the crime. The defendant also mentions that

police seized the black sweatshirt he was wearing that evening

and it tested negative for traces of gunshot residue.

"Our duty under . . . § 33E[] is to consider broadly the

whole case on the law and the facts to determine whether the

verdict is consonant with justice" (quotation and citation

omitted). Commonwealth v. Peno, 485 Mass. 378, 403 (2020). See

Commonwealth v. Gricus, 317 Mass. 403, 406 (1944) (§ 33E "opens

the facts as well as the law for our consideration"). See also

Commonwealth v. Franklin, 465 Mass. 895, 916 (2013) (§ 33E

relief warranted where verdict would result in miscarriage of

justice). At the same time, our statutory obligation to conduct

"a more searching and comprehensive" review of convictions of

murder in the first degree than is granted by ordinary appellate 12

procedure, Commonwealth v. Billingslea, 484 Mass. 606, 610

(2020), "does not . . . convert this court into a second jury,

which must be convinced beyond a reasonable doubt of the guilt

of a defendant by reading the reported evidence, without the

advantage of seeing and hearing the witnesses." Gricus, supra.

It is not enough that, "if on the jury, [we] would have felt a

reasonable doubt which the jury did not share." Id. at 407.

The defendant repeats the facts and arguments already

presented to the jury. In his closing argument, defense counsel

argued that the case is "about a lack of evidence presented by

the Commonwealth." He urged the jury to acquit because the

Commonwealth failed to introduce inculpatory forensic evidence

such as fingerprints, DNA, or precise cell tower location

information. Furthermore, defense counsel stressed the

importance of testimony from the Commonwealth's chemist that the

black sweatshirt tested negative for "blow back" gunshot

residue. At best, defense counsel stated, the Commonwealth

established that the defendant accepted a ride from his

codefendant to both liquor stores prior to the shooting.

Defense counsel concluded that the evidence was insufficient to

prove that the defendant remained in the Ford Fusion driven by

the codefendant after the trip to the liquor stores and was the

shooter on the passenger's side of the vehicle. 13

The jury certainly were entitled to accept the defendant's

view of the evidence in this circumstantial case and to find

that the Commonwealth failed to produce sufficient evidence to

satisfy its burden of proof beyond a reasonable doubt. The

verdict, however, indicates otherwise. Having carefully

reviewed the trial record, we are convinced that the weight of

the evidence supports the jury's verdict of murder in the first

degree. In sum, the Commonwealth established the defendant's

motive to harm individuals associated with a rival gang, that

the codefendant used a car rented in another State in someone

else's name, that the defendant possessed a revolver and the

shots that killed the victim likely were fired from a revolver,

that the defendant met up with the codefendant and drove with

him into rival gang territory, that those shots were fired from

the passenger's side of the rental car, and that the defendant

appeared at a party shortly after the shooting within the

Commonwealth's timeline. See Acevedo, 492 Mass. at . After

the shooting, the defendant told his then girlfriend, "Shit just

got real."

We conclude therefore that the verdict of murder in the

first degree was consonant with justice and should stand.

Judgments affirmed.