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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.