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SJC-11675

                  COMMONWEALTH   vs.   KYLE BRYANT.



            Plymouth.    May 10, 2019. - July 30, 2019.

    Present:   Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.


Homicide. Evidence, Prior misconduct, Inflammatory evidence,
     Identification. Identification. Practice, Criminal,
     Instructions to jury, Mistrial, Capital case.



     Indictments found and returned in the Superior Court
Department on April 5, 2010.

     The cases were tried before Thomas F. McGuire, Jr., J.


     Alan J. Black for the defendant.
     Audrey Anderson, Assistant District Attorney, for the
Commonwealth.


     CYPHER, J.   A jury convicted the defendant, Kyle Bryant, of

murder in the first degree on a theory of deliberate

premeditation for the killing of Darnell Harrison (victim).1     On




     1 The defendant also was convicted of unlawful possession of
a firearm and found not guilty of armed assault with intent to
murder Sean Cox.
                                                                      2


appeal, the defendant contends that the judge erred when he

allowed the Commonwealth to introduce prior bad act evidence

that showed the defendant was a drug dealer, denied the

defendant's request for an eyewitness identification jury

instruction, and denied the defendant's motion for a mistrial.

     For the reasons stated below, we affirm the defendant's

convictions.    After a thorough review of the record, we also

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

grant a new trial or to reduce or set aside the verdict of

murder in the first degree.

     1.   Background.    We summarize the facts that the jury could

have found, reserving pertinent facts for the discussion of the

defendant's arguments.

     The defendant was a drug dealer who, along with his

associates, Peterson Fleury and Tremaine Hampton, sold drugs

from a bar.    Approximately two months prior to the killing,

Fleury sold $1,200 of the defendant's drugs to Sean Cox and was

given $1,100 in counterfeit money.2    The defendant was angry that


     2 The Commonwealth's theory at trial, presented during their
opening statement, was that Cox purchased the defendant's drugs
from Peterson Fleury with counterfeit money. The Commonwealth
attempted to introduce this evidence through the testimony of
Tremaine Hampton, Cox, Fleury, and a bartender at the bar,
Robert Mantell. However, Hampton's testimony was struck because
it was hearsay, Cox denied he ever purchased or sold narcotics,
Fleury denied any transaction involving counterfeit money with
Cox, and the judge did not permit Mantell to testify to the
identity of the individual who used counterfeit money. Although
                                                                     3


he had been deceived.     He told Hampton that he was "gonna get"

the person who stole from him.

    On January 5, 2010, the victim and Cox were at the bar.

Fleury, who frequented the bar, briefly talked to the victim and

Cox and then telephoned the defendant eight times between 5:36

P.M. and 6:07 P.M.   Fleury told the defendant that Cox and the

victim were at the bar.

    At approximately 6 P.M., the victim and Cox left through

the rear of the bar to smoke a cigarette.    Shortly thereafter,

an individual in a dark, hooded sweatshirt approached Cox and

the victim and shot them.    The victim stumbled back into the bar

and collapsed.   After Fleury saw the victim lying on the floor

of the bar, he telephoned the defendant again.    Cox survived the

shooting, but the victim did not.

    Minutes after the shooting, the defendant arrived at the

home of Pamela Brown, who lived in an apartment behind the bar

and had purchased drugs from the defendant in the past.       The

defendant banged on her door.    Brown thought that strange

because the defendant always telephoned her before arriving at




the Commonwealth did not mention Cox as the individual who used
counterfeit money in its closing argument, defense counsel did.
In his brief, the defendant also acknowledged and argued against
the Commonwealth's original theory. Furthermore, at oral
argument the defendant conceded that there was sufficient
evidence presented at trial that Cox was the individual who used
counterfeit money to purchase the defendant's drugs.
                                                                      4


her apartment, but he did not do so that day.     Once inside, the

defendant ran to the bathroom, where he rinsed off his

sweatshirt and hung it on the door.     Later, he placed the

sweatshirt in a plastic bag.     The defendant then telephoned

Hampton and instructed him to go to the bar to see if police had

arrived, but Hampton did not go.

    Soon after the shooting, the defendant's girlfriend arrived

at Brown's apartment.   The defendant put the plastic bag holding

his sweatshirt in his girlfriend's vehicle and placed an

unidentified object under the passenger's side seat.     The

defendant's girlfriend drove away.

    Hours later, Hampton and the defendant met in person, where

the defendant confessed to being the shooter.     The defendant

repeatedly asked Hampton, "Can I trust you?"     The defendant

stated:   "[The victim] couldn't make it to the door in time.     I

shot him and then I shot him again."

    A few weeks later, the defendant again confessed to Hampton

about the killing.   He said that "if he knew killing was this

easy, he would have been doing it" and "[i]t was just like

taking candy from a baby."     The defendant also bragged that

police would never find his cellular telephone or the gun he

used in the killing because he had buried them.

    Police recovered three spent nine millimeter shell casings

outside the rear of the bar, two spent nine millimeter bullets
                                                                    5


from inside Cox, and another two nine millimeter bullets from

the door of the bar and inside the bar.      The defendant owned two

nine millimeter guns.    One of the defendant's guns was chrome

colored.   A witness at the scene described the gun used in the

shooting as being silver.     The witness also described the

shooter as matching the defendant's general characteristics --

height and complexion -- and testified that he was wearing a

dark, hooded sweatshirt.      Multiple other witnesses testified

that they saw a man who matched the defendant's characteristics,

and who was wearing dark clothes and a hooded sweatshirt,

running from the area of the bar toward the area of Brown's

house shortly after the shooting.

    A home recording surveillance system close to the bar

captured video footage of a man walking through the area

immediately after the shooting.     Still photographs from that

video footage were included in evidence, and both Brown and

Hampton identified the man in the photographs as being the

defendant.

    2.     Discussion.   a.   Prior bad acts.   Before trial, the

Commonwealth filed a motion in limine to allow testimony by

Hampton and two prior drug customers of the defendant, Scott

Rounds and Elayne Mahoney.     The Commonwealth sought to admit

evidence of the defendant's drug distribution both before and

after the shooting as probative evidence of the defendant's
                                                                     6


motive to shoot Cox and the victim and as probative evidence of

his demeanor and state of mind on the night of the killing.     The

defendant opposed the admission of this testimony, arguing that

it was bad character evidence and that it was more prejudicial

than probative.   The judge allowed the admission of the

testimony.   At trial, the Commonwealth presented evidence from

Hampton, Rounds, and Mahoney that showed that the defendant was

a drug dealer.

    The defendant argues that this evidence was admitted

improperly because it showed that the defendant had a criminal

propensity or was of bad character.     He further contends that,

even if any of the evidence was potentially relevant, the

evidence was more prejudicial than probative, and therefore it

should not have been admitted.    The Commonwealth argues that the

evidence was offered for the purposes of establishing the

defendant's motive as well as his state of mind on the night in

question.    We conclude that the judge did not abuse his

discretion in admitting the evidence.

    "It is well settled that the prosecution may not introduce

evidence that a defendant previously has misbehaved, indictably

or not, for the purposes of showing his bad character or

propensity to commit the crime charged, but such evidence may be

admissible if relevant for some other purpose."     Commonwealth v.

Helfant, 398 Mass. 214, 224 (1986).     See Mass. G. Evid. § 404(b)
                                                                    7


(2019).   Such evidence may be admissible to show, for example,

"a common scheme, pattern of operation, absence of accident or

mistake, identity, intent, or motive."   Helfant, supra.    "It

also may be used where evidence of the prior bad acts is

inextricably intertwined with the description of events . . . of

the killing" (quotation and citation omitted).    Commonwealth v.

Marrero, 427 Mass. 65, 67 (1998).

    Nevertheless, even if the evidence is relevant to one of

these other purposes, the evidence will not be admitted if its

probative value is outweighed by the risk of unfair prejudice to

the defendant.   Commonwealth v. Crayton, 470 Mass. 228, 249

(2014).   See Mass. G. Evid. §§ 403, 404(b)(2).   "Determinations

of the relevance, probative value, and prejudice of such

evidence are left to the sound discretion of the judge, whose

decision to admit such evidence will be upheld absent clear

error" (citation omitted).   Commonwealth v. Dung Van Tran, 463

Mass. 8, 14–15 (2012).   The effectiveness of limiting

instructions in minimizing the risk of unfair prejudice should

be considered in balancing prejudice and probative value.    See

Commonwealth v. Dunn, 407 Mass. 798, 807 (1990); Mass. G. Evid.

§§ 105, 403.

    i.    Hampton.   At trial, Hampton testified that he had been

a friend of the defendant for approximately three years prior to

the killing.   Shortly after meeting the defendant, Hampton began
                                                                    8


selling drugs for him.     Hampton testified that, a few months

before the shooting, the defendant told him that someone used

counterfeit money to steal the defendant's drugs from Fleury.

The defendant told Hampton that he was going to "handle it" when

he saw the person who stole the drugs.

      The evidence of the defendant's activity as a drug dealer

was highly probative and relevant because it established his

relationship with Hampton as a friend and drug dealing

associate, which explained why the defendant would confide in

Hampton and established a motive for the shooting.     See

Commonwealth v. Copney, 468 Mass. 405, 414 (2014).     The

Commonwealth's theory of the case was that Cox stole $1,100

worth of drugs from the defendant.    One of the defense

strategies was to point to another drug dealer who sometimes

worked with the defendant, Andrew Levy, as the perpetrator of

the killing.   "In these circumstances, it was unavoidable that

evidence of the defendant's drug business and his interactions

with his customers would be admitted."     Marrero, 427 Mass. at

68.

      Moreover, the defendant's statement that he would "handle

it" indicates the defendant's intent to get revenge for the

theft.   See Commonwealth v. Almeida, 479 Mass. 562, 568 (2018).

This evidence was also essential to the Commonwealth's case to

establish premeditation.     See Commonwealth v. Pagan, 440 Mass.
                                                                       9


84, 87–88 (2003) (prior bad act evidence admissible to show

hostile nature toward victim and premeditation of subsequent

killing); Marrero, 427 Mass. at 68 (evidence of involvement in

drug dealing business admissible where relevant to motive for

killing).   Without the evidence that the defendant was a drug

dealer who sought revenge, "the killing could have appeared to

the jury as an essentially inexplicable act of violence."

Commonwealth v Bradshaw, 385 Mass. 244, 269 (1982).      The

Commonwealth is permitted to present a full picture of the

events surrounding the crime, and the prejudice likely to be

generated by the admission of this evidence did not outweigh its

substantial probative value.     See id. at 269-270.   There was no

error.

    ii.     Mahoney.   Mahoney testified that she bought drugs from

the defendant "[s]ometimes daily, sometimes three or four times

a week" for approximately ten months leading up to the night of

the killing.    She claimed that the defendant was always a "nice

guy," "easy going," "very polite," and punctual.       However, on

the night of the shooting the defendant acted differently from

his usual manner.      Mahoney testified that the defendant was late

to the drug deal, was "anxious," and "wanted to get [the drug

deal] done and get out of there."     The defendant told Mahoney

that "some shit just went down" and then, after completing the

drug deal, told her to "take your shit and go."      Mahoney also
                                                                    10


testified that it was "[r]eal cold" that night and the defendant

only was wearing a T-shirt.

    Mahoney's testimony was relevant and probative because it

showed the defendant's state of mind in the immediate aftermath

of the killing.   See Commonwealth v. Wilson, 427 Mass. 336, 349

(1998) (evidence that shows defendant's state of mind is

probative).   The defendant typically was "very polite" and

"easy-going."   Yet, after the killing, he was anxious and rude.

The probative value of the defendant's state of mind in the

immediate moments following the killing is not outweighed by

cumulative evidence of his low-level drug dealing.    See

Commonwealth v. Rutherford, 476 Mass. 639, 649 (2017);

Commonwealth v. Philbrook, 475 Mass. 20, 26-27 (2016).

    iii.   Rounds.   Rounds testified that he had been a customer

of the defendant for three or four years.   He claimed that the

defendant had paid his bail when he was incarcerated and that he

had been incrementally paying the defendant back.    He testified

that on the night of the shooting he telephoned the defendant

four or five times to pay the defendant the money he owed.

Typically, the defendant answered when Rounds telephoned him,

but on that night, he did not answer his telephone immediately.

When the defendant finally answered Rounds's telephone call, he

abruptly ended it.
                                                                         11


       Although Rounds's testimony mostly was cumulative, it

showed that the defendant was in a hurry on the night of the

killing and not his usual self.      The judge did not abuse his

discretion in admitting it.      This evidence was relevant to the

defendant's state of mind on the night of the killing, and its

probative value and cumulative nature was not outweighed by its

potential prejudice to the defendant.         See Wilson, 427 Mass. at

349.

       In any event, the judge took appropriate steps to minimize

the impact of the evidence that the defendant was a drug dealer.

See Commonwealth v. Forte, 469 Mass. 469, 480-481 (2014) (no

error in admission of prior bad act evidence where, among other

things, jury instructions minimized potential for prejudicial

effect); Commonwealth v. Donahue, 430 Mass. 710, 718 (2000)

(proper jury instructions can render potentially prejudicial

evidence harmless); Mass. G. Evid. § 105.        During the final jury

charge, the judge instructed that they could consider the

evidence of the defendant's prior drug dealing "solely on the

limited issue of motive and as an explanation of the

relationships between various other individuals and the

defendant."3     The jury were instructed not to use the evidence


       3   The complete instruction stated:

       "Now, you heard evidence in the case that the defendant
       engaged in illegal drug dealing. The defendant is not
                                                                    12


that the defendant was a drug dealer to conclude that he also

must be guilty of the crimes charged.    We presume that the jury

followed the judge's instructions.   See Crayton, 470 Mass. at

251.   Cf. Commonwealth v. Gomes, 475 Mass. 775, 785 (2016)

(where balance between prejudice and probative value was close,

contemporaneous limiting instructions persuaded court that bad

acts evidence was properly admitted).

       Best practice would certainly have been to give a limiting

instruction at the time the evidence of the defendant's drug

dealing history was admitted.   See Commonwealth v. Facella, 478

Mass. 393, 402 (2017).    The timing of a limiting instruction is,

however, ultimately in the discretion of the trial judge.     See

Commonwealth v. Carter, 475 Mass. 512, 526 (2016), citing Mass.




       charged with any drug offenses. So you may not consider
       evidence of illegal drug dealing as a substitute for proof
       that the defendant committed the crimes that are charged.
       Nor may you consider it as proof that the defendant has a
       criminal personality or bad character. You may consider
       such evidence solely on the limited issue of motive and as
       an explanation of the relationships between various other
       individuals and the defendant. You should not consider
       that evidence for any other purpose.

       "The issue for the jury to decide is whether the
       Commonwealth has proven beyond a reasonable doubt that the
       defendant committed the particular crimes with which he is
       charged; that is, the murder of Darnell Harrison, armed
       assault with intent to murder Sean Cox and unlawful
       possession of a firearm. You may not use evidence that the
       defendant engaged in illegal drug dealing to conclude that
       he must also have committed the crimes with which he's now
       charged."
                                                                    13


R. Crim. P. 24 (b), 378 Mass. 895 (1979) (judge has broad

discretion as to timing of limiting instructions); Commonwealth

v. Linton, 456 Mass. 534, 551 n.12 (2010) (although "we find it

preferable that the limiting instruction be given the same day

as the testimony at issue, we do not find that the delay

materially diminished the impact of the limiting instruction on

the jury"); Mass. R. Crim. P. 24 (b) (no limitation on timing of

instructions).    Here, the defendant did not ask for a

contemporaneous limiting instruction at trial.     See Commonwealth

v. Leonardi, 413 Mass. 757, 764 (1992) ("the law does not

require a judge to give limiting jury instructions regarding the

purpose for which evidence is offered unless so requested by the

defendant").     Furthermore, on appeal, the defendant takes no

issue with the judge's instruction during the final jury charge.

Regardless, because the question whether the evidence was more

prejudicial than probative was not particularly close, we

conclude that there was no substantial likelihood of a

miscarriage of justice from the failure to give a limiting

instruction at the time the bad act evidence was admitted.

    b.   Identification instruction.     During the jury charge

conference, the Commonwealth and the defendant requested

instructions regarding the identification evidence that was

admitted at trial.    The Commonwealth's requested instruction was

based on the model jury instruction at the time of trial.     The
                                                                    14


defendant sought an eyewitness instruction that aligned with the

recent report of the Supreme Judicial Court Study Group on

Eyewitness Evidence.   In response, the judge stated:   "[B]oth of

[the requested] instructions . . . have to do with the subject

of eyewitness identification.    And we don't have any eyewitness

identification in this case.    We didn't have a witness who took

the stand and said I saw the shooting."    Denying both the

Commonwealth and the defendant's requested instructions, the

judge formulated an instruction based on the type of

identification that occurred in the case -- Brown and Hampton's

identification of the defendant from the still images taken from

security footage near the bar.    The defendant did not object to

the instruction.

    On appeal, the defendant argues that he was prejudiced by

the judge's decision not to give the defendant's eyewitness

instruction.   The Commonwealth argues that the judge did not

abuse his discretion in denying the defendant's instruction

because there was no eyewitness identification in the case.     We

agree with the Commonwealth.

    In Commonwealth v. Gomes, 470 Mass. 352, 379-388 (2015)

(Appendix), S.C., 478 Mass. 1025 (2018), we formulated a new

provisional eyewitness instruction to be given to the jury where

there was incriminating eyewitness identification testimony
                                                                  15


offered by a witness.4   Here, not only was this case tried before

Gomes, see Commonwealth v. Bastaldo, 472 Mass. 16, 23 (2015)

(provisional eyewitness instruction to be given in trials that

commence after Gomes), but there was no eyewitness

identification.   The Commonwealth entered evidence that Brown

and Hampton, both of whom had an extensive relationship with the

defendant, identified him from still images taken from a

security camera near the bar.   There was no witness that

directly identified the defendant as the assailant.    Other

witnesses testified to generic details about the defendant's

height, clothing, and race.   That testimony did not convey

"details so specific to the defendant that they essentially

serve as a partial eyewitness identification."   Commonwealth v.

Johnson, 470 Mass. 389, 395 n.11 (2015).   Thus, because there

was no identification testimony that incriminated the defendant,

the judge did not abuse his discretion in declining to give the

defendant's requested instruction.   Id. at 396-397.




     4 The provisional instruction in Gomes updated the
instruction that was adopted in Commonwealth v. Rodriguez, 378
Mass. 296, 310–311 (1979) (Appendix), S.C., 378 Mass. 296
(1979), with principles relevant to the evaluation of eyewitness
testimony for which there is at least a near consensus in the
relevant scientific community. Commonwealth v. Gomes, 470 Mass.
352, 376 (2015), S.C., 478 Mass. 1025 (2018). We have since
adopted the Model Jury Instructions on Eyewitness
Identification, 473 Mass. 1051 (2015), to replace the
provisional instruction in Gomes.
                                                                   16


    c.   Mistrial.   At trial, a State police trooper, Robert

Klimas, testified on behalf of the Commonwealth.   On the night

of the killing, Klimas reviewed video surveillance footage taken

inside and outside the bar.   After conducting witness

interviews, Klimas testified that there were six people outside

the bar when the shooting occurred, "including the shooter."

 The prosecutor asked Klimas, "Who did you identify as being

outside at the time?"   In response, Klimas named the victim,

Cox, several other witnesses, and the defendant.   Defense

counsel immediately moved for a mistrial.   The judge denied the

motion, but struck the identification testimony and gave a

forceful curative instruction.

    The defendant argues that the judge erred in denying the

defendant's motion for a mistrial.   We review the decision to

deny a motion for a mistrial for an abuse of discretion.     See

Commonwealth v. Bryant, 447 Mass. 494, 503 (2006).   Where a

party seeks a mistrial in response to the jury's exposure to

inadmissible evidence, the judge may correctly rely on curative

instructions as an adequate means to correct any error and to

remedy any prejudice to the defendant.   Id., quoting

Commonwealth v. Kilburn, 426 Mass. 31, 37–38 (1997).

    We see no abuse of discretion in the judge's decision to

deny the defendant's motion for a mistrial.   Klimas's testimony,

in which he identified the defendant as one of the six people
                                                                    17


who were outside the bar at the time of the shooting, and

indicated that one of the six was "the shooter," was improper.

However, the judge immediately corrected the mistake by striking

the testimony and giving a forceful curative instruction.     See

Kilburn, 426 Mass. at 38 (no abuse of discretion in denying

request for mistrial where judge immediately instructed jury to

disregard improper testimony and there was no reference to

improperly admitted testimony later in trial); Commonwealth v.

Chubbuck, 384 Mass. 746, 753 (1981) ("By striking the testimony

and promptly instructing the jury to disregard it, the judge did

all that was necessary to cure any possible error from the

admission of the statement").   We presume that the jurors

followed the judge's prompt and strongly worded instruction to

disregard Klimas's identification.   See Commonwealth v. Durand,

475 Mass. 657, 669 (2016), cert. denied, 138 S. Ct. 259 (2017).

    Moreover, at the beginning of trial the judge instructed

the jury that they were not to consider any testimony that he

struck from the record.   In addition, at the conclusion of

trial, the judge instructed the jury on the specific

identification evidence that was before them.   The judge did not

abuse his discretion in denying the motion for a mistrial.

    3.   Conclusion.   We have reviewed the record in its

entirety and see no basis to grant extraordinary relief under
                                                              18


G. L. c. 278, § 33E.   For the above reasons, we affirm the

defendant's convictions.

                                   So ordered.
