Commonwealth v. Oliver Walsh.

• Court: Massachusetts Appeals Court
• Decided: July 13, 2023
• Docket: 21-P-1108
• Status: Unpublished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

21-P-1108

COMMONWEALTH

vs.

OLIVER WALSH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of armed

robbery while masked in violation of G. L. c. 265, § 17. On

appeal, he claims that (1) a detective's testimony regarding a

tip was impermissible hearsay that also violated the defendant's

right to confront witnesses against him; (2) other parts of the

detective's testimony were also hearsay and improperly

corroborated other witnesses' testimony; and (3) the

prosecutor's closing argument improperly bolstered witnesses,

misstated evidence, and disparaged the defense. We affirm.

Background. In October 2017, a masked man and woman robbed

a TD Bank in Holliston while armed with weapons, taking $4,700.

Seven months later, the Federal Bureau of Investigation (FBI)

offered a reward for information leading to an arrest in the

case. A tipster responded, sending an e-mail message from an account associated with her name to Holliston police saying that

she knew who committed the robbery. The tipster later told

Detective Ciara Maguire of the Holliston police that an

acquaintance of hers, whom the tipster identified by name, had

admitted to carrying out the robbery with her boyfriend. That

acquaintance subsequently confessed to robbing the bank with the

defendant, Oliver Walsh, and entered into a cooperation

agreement, pursuant to which she testified against the defendant

at trial (cooperating codefendant).

Discussion. 1. Testimony about the tip. The defendant

claims that Detective Maguire's testimony regarding the tip was

inadmissible hearsay that violated the confrontation clause of

the Sixth Amendment to the United States Constitution and art.

12 of the Massachusetts Declaration of Rights. More

specifically, the defendant alleges that the detective's

testimony about an e-mail message she received from Holliston

police Chief Matthew Stone contained multiple levels of hearsay

because it also included the text of the tipster's e-mail

message. He further challenges the detective's testimony about

e-mail and text messages she exchanged with the tipster, and

about the tipster's statements by phone that the cooperating

codefendant and her boyfriend robbed the bank.

Because the defendant did not object to the testimony, our

review is limited to whether its admission was error, and if so,

2 whether that error created a substantial risk of a miscarriage

of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297

(2002). The hearsay rule forbids the admission of out-of-court

statements offered for their truth but allows such statements

when offered for other valid purposes, including to show the

state of police knowledge. See Commonwealth v. Cohen, 412 Mass.

375, 393 (1992) ("an arresting or investigating officer should

not be put in the false position of seeming just to have

happened upon the scene; [s]he should be allowed some

explanation of [her] presence and conduct" [citation omitted]).

See also Mass. G. Evid. § 801(c) (2023). Testimony may be used

for this purpose subject to the limitations that it "is based on

the police officer's own knowledge, and is limited to the facts

required to establish the officer's state of knowledge, and the

police action or state of police knowledge is relevant to an

issue in the case." Commonwealth v. Sullivan, 478 Mass. 369,

376 (2017), citing Commonwealth v. Rosario, 430 Mass. 505, 509-

510 (1999).

Here, the detective had personal knowledge of the

statements because she received the e-mail message from Stone

and personally communicated with the tipster. The progression

of the investigation was also relevant to establishing the

identity of the cooperating codefendant and the defendant as the

two masked bank robbers. There were no suspects prior to the

3 tip, so describing the investigation made "the discovery of the

actual evidence of identity seem more natural and less

mysterious" (citation omitted). Commonwealth v. Perez, 27 Mass.

App. Ct. 550, 554 (1989). The detective may have exceeded the

second limitation by quoting the tipster's original e-mail

message to Stone and recounting her identification of the

cooperating codefendant and the defendant over the phone.1 See,

e.g., Commonwealth v. Rosario, 430 Mass. 505, 510 (1999)

(statements admitted to show state of police knowledge generally

should not "go beyond what is reasonably necessary to explain

police conduct" and "a statement that an officer acted 'upon

information received,' . . . or words to that effect" is

sufficient [citations omitted]). However, even if the content

of the e-mail message and phone call was hearsay, admitting it

did not create a substantial risk of a miscarriage of justice.2

1 During the phone call, the tipster told the detective the defendant's first name and that he lived one town over from the cooperating codefendant.

2 The defendant's appellate brief alludes to a potential claim of ineffective assistance of counsel, stating that if an issue is not sufficiently preserved, counsel was ineffective. This claim fails, however, because the defendant has not shown a substantial risk of a miscarriage of justice. See Commonwealth v. Millien, 474 Mass. 417, 432 (2016). He was therefore not deprived of "an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

4 A substantial risk of a miscarriage of justice exists "if

the evidence and the case as a whole [leaves] us with a serious

doubt that the defendant['s] guilt ha[s] been fairly

adjudicated." Commonwealth v. Amirault, 424 Mass. 618, 646-647

(1997). As defense counsel conceded at oral argument, the

detective's testimony regarding the tipster's statements was

cumulative of the cooperating codefendant's own properly

admitted testimony. The cooperating codefendant testified that

she met the tipster while they were in the same addiction

treatment center and that she confided in the tipster about the

robbery. She attested that Detective Maguire later contacted

her and arranged a meeting, at which time the cooperating

codefendant described the robbery in detail to the detective and

an FBI agent. At the meeting and in her trial testimony, the

cooperating codefendant identified the defendant as the second

robber. Bank surveillance footage and testimony from other

witnesses corroborated the cooperating codefendant's testimony

about how the robbery unfolded. "The mistaken admission of

hearsay evidence, if merely cumulative of another witness's

testimony, does not constitute reversible error." Commonwealth

v. O'Connor, 407 Mass. 663, 670 (1990). Moreover, even without

the details of the tipster's statements, the Commonwealth's case

against the defendant was strong. Compare Commonwealth v.

Navarro, 474 Mass. 247, 259-260 (2016) (no substantial risk of

5 miscarriage of justice from missing instruction where

defendant's coventurer identified him as armed and masked robber

and where other evidence corroborated coventurer's testimony).

We therefore are not left with serious doubt that excluding the

tipster's statements would have changed the outcome of the

trial.3 See Amirault, supra.

2. Other hearsay claims. The defendant claims that the

detective's testimony regarding several other out-of-court

statements was also inadmissible hearsay. These include

statements from the bank tellers, the bank manager, and the

cooperating codefendant; the FBI bulletin announcing the reward;

and the registry of motor vehicles (RMV) records that the

detective searched. However, these statements were admissible

for nonhearsay purposes and cumulative of other evidence.

The detective's account of tellers' and manager's

statements, the FBI bulletin, and the RMV records were

admissible to show the state of police knowledge. They were

3 The defendant also contends that the detective improperly bolstered the tipster's statements. It is true that "a witness cannot be asked to assess the credibility of his testimony or that of other witnesses." Commonwealth v. Dickinson, 394 Mass. 702, 706 (1985). However, the detective stated only that the tip conformed to the investigation's prior findings, that the tipster said her information was valid, and that she wanted to "do the right thing." Defense counsel did not object to these statements, and given the strength of the other evidence, we are not left with serious doubt that they influenced the verdict. See Amirault, 424 Mass. at 646-647.

6 based on the detective's personal knowledge, limited to the

facts necessary to show what the police knew at the time, and

relevant to how the police identified the defendant. See

Rosario, 430 Mass. at 509-510. Regarding the cooperating

codefendant's statements, the judge allowed the detective to

testify only to details of the robbery that the cooperating

codefendant knew but that the FBI bulletin had not made public.

The judge also instructed the jury to disregard all but five of

the cooperating codefendant's statements and to consider those

five statements as proof of her knowledge of the robbery, not

for their truth. See Mass. G. Evid. 803(3)(B)(i) (hearsay

statements admissible to prove declarant's present state of mind

or knowledge). Moreover, the detective's testimony about these

statements was cumulative of other properly admitted evidence.

Both tellers testified, and described how the robbery unfolded

and the appearance of the robbers. The surveillance video

showed the entire course of events inside the bank. And the

cooperating codefendant testified in detail to how she and the

defendant carried out the robbery. As such, any cumulative

hearsay statements would not require reversal. See O'Connor,

407 Mass. at 670 (no prejudice to defendant where erroneously

admitted hearsay added nothing to other testimony).

3. The prosecutor's closing argument. The defendant also

claims that the prosecutor's closing argument impermissibly

7 vouched for the credibility of witnesses, misstated evidence,

and disparaged the defense. Trial counsel did not object to the

closing argument, so we review only for error, and if so,

whether it created a substantial risk of a miscarriage of

justice. See Commonwealth v. Pearce, 427 Mass. 642, 646 (1998).

Because there was no error, there was no risk that justice

miscarried.

The defendant claims that the prosecutor relied on special

knowledge, outside the facts in evidence, by pointing out that

the cooperating codefendant first confessed more than a year

before she entered into a cooperation agreement. However, the

defendant's closing argument challenged the cooperating

codefendant's credibility on the basis that she lied in return

for a reduced sentence. The prosecutor properly rebutted this

contention and restated the evidence, including the cooperating

codefendant's own testimony about her confession and the

agreement.4 See Commonwealth v. Ciampa, 406 Mass. 257, 265

4 The defendant further claims that the prosecutor improperly vouched for a second witness who testified pursuant to a grant of immunity. The defendant's closing argument called on the jury to question whether that witness may have lied despite his immunity agreement. The prosecutor properly countered that the agreement did not immunize the witness for perjury, rebutting the suggestion that the witness had any additional incentive to lie. See Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989) ("a prosecutor may properly point out that an agreement seeking only the truthful cooperation of the witness does not give the witness any special incentive to lie").

8 (1989) (prosecutor may restate government's agreement with

witness but may not suggest government can verify witness's

testimony).

The defendant further challenges the prosecutor's use of

the word "sophomoric" to refer to the defense's description of

the cooperating codefendant's relationship with the defendant,

claiming it was an ad hominem attack. We disagree. The

defendant's closing argument described the relationship as

"dysfunctional," with the defendant being a "jerk" throughout.

The prosecutor's comment that this description did not reflect

the reality of the relationship was within the bounds of proper

argument. See Commonwealth v. Simpson, 434 Mass. 570, 586

(2001) (no error where Commonwealth used "insult" to describe

defense argument that lacked evidentiary support); Commonwealth

v. Jackson, 428 Mass. 455, 463 (1998) ("It is settled law . . .

that the prosecutor may comment on defense tactics that the

jurors have witnessed themselves"). Contrast Commonwealth v.

Gentile, 437 Mass. 569, 581 (2002) (Commonwealth improperly

9 disparaged defense strategy by referring to it as "despicable").

Judgment affirmed.

By the Court (Meade, Blake & Brennan, JJ.5),

Clerk

Entered: July 13, 2023.

5 The panelists are listed in order of seniority.