Commonwealth v. Kimberly McCullough.

• Court: Massachusetts Appeals Court
• Decided: December 28, 2023
• Docket: 22-P-0957
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-957

COMMONWEALTH

vs.

KIMBERLY MCCULLOUGH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant

was convicted of armed robbery, assault and battery by means of

a dangerous weapon, and armed assault in a dwelling. On appeal,

the defendant maintains that testimony by a police officer,

elicited on the Commonwealth's redirect examination, violated

the protections enunciated in Doyle v. Ohio, 426 U.S. 610, 611,

616-619 (1976). We affirm.

The defendant and the victim had a history of engaging in

sex and using cocaine. During one such encounter, the

defendant's boyfriend rushed into the room wielding a wooden

table leg and attacked the victim; a melee ensued. The

defendant took the victim's cell phone and backpack; after the

three tumbled down a flight of stairs together, the victim

regained his backpack. When police arrived (summoned by a neighbor), the victim

was bleeding from the head. The defendant and her boyfriend

were located less than fifty yards away. There, the defendant

told an officer that she had drugs on her person.

At trial, a different police officer testified that he took

the victim for a "quick drive in the cruiser" past the spot

where the defendant and her boyfriend were standing. The

testifying officer never spoke with the defendant during this

drive-by identification. He did, however, "interact" with the

defendant later at the police station.

The challenged testimony relates to these two moments: the

scene where the defendant was apprehended and the "interaction"

at the station. On cross-examination, counsel asked the

officer, "You didn't speak to my client, [the defendant]?" and

the officer responded, "No, I didn't." Counsel also asked, "And

your report also notes that [the defendant] stated openly that

she did have some -- a little bit of marijuana and cocaine on

her?" to which the officer responded, "Yes."

On redirect, the prosecutor asked:

Q: "Okay. And did you have much one-on-one interaction with [the defendant]?"

A: "When we got back to the police station."

Q: "Okay. But on scene, you didn't interact with her?"

A: "No."

2 Q: "Okay. And she didn't say anything to you about what happened on scene?"

Defense counsel objected and, at sidebar, explained that

she viewed the questioning as inappropriately shifting the

burden to the defendant, who had a "right to silence." The

judge agreed to sustain the objection and later did so. 1 During

the ensuing conversation at sidebar, the prosecutor explained

that he had been "trying to clarify" that the officer was not

the one who had interacted with the defendant at the scene, and

that the officer "didn't actually talk to her himself about the

drug stuff." The judge indicated that he "may have heard [the

testimony] the same way" as the prosecutor.

When the prosecutor rephrased the question, he made clear

(1) that he was following up on the question asked during cross-

examination about the defendant's admission to having drugs, and

(2) that the admission was made to another officer, not to the

testifying officer. There was no objection to this testimony.

As we understand the defendant's argument, she maintains

that a Doyle error arose because the officer inappropriately

testified that the defendant spoke to him, but, when she did,

she said nothing about what had happened at the scene. Like the

1 Although the judge initially agreed to strike the answer, that was not part of his eventual ruling. Counsel did not request again that the answer be stricken.

3 trial judge, we do not understand this to have been the

officer's testimony. Rather, provoked by the questions on

cross-examination, on redirect the prosecutor sought to have the

testifying officer clarify that the defendant's statement at the

scene (about having drugs) was made to a different officer.

Even generously reading the testimony as the defendant

proposes, we discern no Doyle error. First, as counsel

acknowledged during oral argument, no motion to suppress was

filed, and the record contains no evidence as to when the

defendant was arrested, or when and whether she received her

Miranda rights. Therefore, we do not know whether the defendant

had been provided with her Miranda rights when she interacted

with the testifying officer at the police station. Doyle is

implicated only after a defendant has been advised of her

Miranda rights. See Commonwealth v. Mahdi, 388 Mass. 679, 694

(1983), citing Doyle, 426 U.S. at 619.

Second, "Doyle held that the exercise of one's Miranda

rights could not be used for impeachment purposes for two

reasons: (1) the inherent ambiguity of silence 'because of what

the State is required to advise the person arrested'; and

(2) the implicit assurance of the Miranda warnings that the

defendant's exercise of the announced right will carry no

penalty." Mahdi, 388 Mass. at 695, quoting Doyle, 426 U.S. at

617-618. See Commonwealth v. Lodge, 89 Mass. App. Ct. 415, 418-

4 419 (2016). Here, there was no evidence that the defendant

spoke to the testifying officer, or of what she said to him if

she did speak. The testifying officer did not speak with the

defendant on the scene, and only "interact[ed]" with the

defendant at the police station. The nature of this

"interaction" was not before the jury. The officer may have

booked the defendant, fingerprinted her, allowed her to make a

telephone call, or had a conversation with her -- we do not

know. Because we know neither whether the defendant spoke or

remained silent, nor whether she received or invoked her Miranda

rights, this testimony did not implicate Doyle.

Judgments affirmed.

By the Court (Meade, Hershfang & D'Angelo, JJ. 2),

Clerk

Entered: December 28, 2023.

2 The panelists are listed in order of seniority.