Commonwealth v. Kindell

689 N.E.2d 845, 44 Mass. App. Ct. 200, 1998 Mass. App. LEXIS 14
CourtMassachusetts Appeals Court
DecidedJanuary 26, 1998
DocketNo. 96-P-485
StatusPublished
Cited by11 cases

This text of 689 N.E.2d 845 (Commonwealth v. Kindell) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Kindell, 689 N.E.2d 845, 44 Mass. App. Ct. 200, 1998 Mass. App. LEXIS 14 (Mass. Ct. App. 1998).

Opinion

Kass, J.

Of four claims on appeal by the defendant Eroy Kin-dell, the closest question pertains to the admissibility of a statement by a prosecution witness that the defense characterizes as a prior consistent statement. We have, of course, considered the other three questions put by the defendant. We affirm the judgment of murder in the second degree.

[201]*201Pertinent facts. In the early hours of November 3, 1991, Chris Bender, the victim, and his cousin Jesse Starks were talking and smoking marijuana in Bender’s blue Mercedes Benz automobile parked across from Bender’s mother’s apartment in the Crescent Court housing project in Brockton. Around 2:17 a.m., Starks heard a shot, then twenty to thirty more. At the conclusion of the fusillade, Bender lay mortally wounded.

Approximately two weeks earlier there had been unfriendly words between Bender and Stephen “Sticks” Fernandes, who was tried with Kindell.1 Starks saw Fernandes at a liquor store on Crescent Street a week later. Fernandes had pulled up in a gold Thunderbird automobile together with three friends. On that occasion, Fernandes told Starks he was going to “get” him and Bender. The night of the murder there was a party in an apartment on Milton Street in Brockton at which Fernandes and friends of his were present. Fernandes expressed hostility toward Bender and Starks (evidence of this was admitted only against Fernandes). Fernandes and his adherents displayed firearms. Among those adherents was the defendant Kindell, who lifted his shirt to reveal the handle of a gun.

When the party broke up, Fernandes and nine other men headed in two cars for where Bender lived. The whole group — including the defendant Kindell — wore black hooded sweatshirts and, as they entered the Crescent Court project, they all raised their hoods over their heads. Two men, Jordan Rice (who became the principal witness for the government) and Kevin Bynum, stayed with the cars. There were shots and the hooded group came running back to the cars, three of them with guns in their hands.

The next night, all the men who had gone to the project the night before met at Kevin Bynum’s apartment. Three men, who were at the apartment but had not been involved the night before, were not allowed in the bedroom where the meeting took place. Kindell was among those in the bedroom, i.e., the inner circle. There was discussion of getting rid of the guns. The meeting participants decided, if asked (as they anticipated they would be), that they would blame the shooting on “[sjome kids from Boston.”

1. The prior consistent statements. Among the witnesses for [202]*202the government was James Clark, who had traveled from Boston to attend the party in Brockton. He testified that he had seen Kindell, whom he knew, at the party, and that Kindell had displayed a gun. On cross-examination, Kindell’s counsel brought out that several weeks before the party Kindell and Clark had fought. Kmdell’s counsel asked Clark: “And is it fair to say at this party you and Eroy [Kindell] weren’t on very good terms, were you?” Clark answered: “I was just watching my back, put it that way.” The purpose of that cross-examination was to adduce evidence tending to prove Clark had a bias against Kindell and was, therefore, inventing testimony damaging to him. Kindell’s counsel then referred to conversations in January, 1992, between Kindell and State police detectives who were investigating Bender’s murder. The policemen had come to Clark’s house to interview him. They had asked who did the shooting and Clark had said, “Not my boys.” Kindell’s counsel inquired if Clark had mentioned Kindell’s presence at the party. Clark said that he did not remember but, as Kindell’s counsel pressed the question, he said: “I might not have told them then. I don’t know.” Counsel continued, “And when Mason [one of the State police detectives] [called] you a few weeks later, once again, you didn’t say anything to him about seeing Eroy [Kin-dell] at the party, isn’t that so?” Clark answered, “Yes.”

On redirect examination, the prosecutor asked Clark if he remembered whether during subsequent questioning by State police officers on May 19, 1992, he had “told them about Eroy Kindell at the party.” Clark said that he did not remember. Thereupon the prosecutor was permitted to ask whether a written record of that interview refreshed his memory. Clark said the document refreshed his memory a “little bit” and, thus refreshed, said he had told Trooper Mason on May 19 that “I saw him [Kindell] at the party” and “he had a gun.” The prosecutor drew from Clark further testimony that, while under oath before a grand jury in July, 1992, he said he had seen Kin-dell at the party with a gun.

As to prior consistent statements, the basic rule is that they are not admissible. Commonwealth v. Zukoski, 370 Mass. 23, 26 (1976). Commonwealth v. Binienda, 20 Mass. App. Ct. 756, 758 (1985). Liacos, Massachusetts Evidence § 6.15 (6th ed. 1994). The reason for the rule is that the testimony of a witness in court should not need — and ought not — to be “pumped up” by evidence that the witness said the same thing on some prior [203]*203occasion. 4 Wigmore, Evidence § 1124 (Chadbourn rev. ed. 1972). A prior consistent statement may, however, be admitted to support the testimony of a witness who has been impeached by a suggestion that his testimony is the product of bias or contrivance. Commonwealth v. Sullivan, 410 Mass. 521, 527 (1991). Liacos, Massachusetts Evidence § 6.15, at 328. An example of this allowable use of a prior consistent statement — pertinent to the case at bar — is rehabilitation of a witness who has been impeached by a prior inconsistent statement if the suggestion of the inconsistent statement is that the witness’s in-court testimony was a recent fabrication or was induced by a bias of the witness against one of the parties. Commonwealth v. Zukoski, 370 Mass. at 26-27. Commonwealth v. Brookins, 416 Mass. 97, 102-103 (1993). Commonwealth v. Lareau, 37 Mass. App. Ct. 679, 683 (1994). Liacos, Massachusetts Evidence § 6.15. The prior consistent statement can rebut the suggestion of the prior inconsistent statement that the in-court testimony was the product of either fabrication or ill will. To qualify for that purpose, the prior consistent statement must have been made before the motive to fabricate or act out of bias arose. Commonwealth v. Haywood, 377 Mass. 755, 763 (1979). Commonwealth v. Binienda, 20 Mass. App. Ct. at 758-759. Commonwealth v. Lareau, supra at 682-683.

It will be recalled that in cross-examining Clark, counsel for Kindell sought to establish that Clark harbored some ill will toward Kindell. If so, Clark’s consistent statements were made subsequent to the time the motive to fabricate arose, and the basis for supporting Clark with his prior consistent statement was not present. See Commonwealth v. Binienda, 20 Mass. App. Ct. at 758-759; Commonwealth v. Lareau, 37 Mass. App. Ct. at 682-683. The application of these principles, however, is not quite that mechanical. See Commonwealth v. Darden, 5 Mass. App. Ct. 522, 530 (1977), in which we said “the test should remain one of probative value — whether the prior consistent statement has a logical tendency to meet and counter the suggestion that the witness has recently contrived his testimony for purposes of trial.

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Cite This Page — Counsel Stack

Bluebook (online)
689 N.E.2d 845, 44 Mass. App. Ct. 200, 1998 Mass. App. LEXIS 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kindell-massappct-1998.