492 Mass. 823
Mass.2023Background
- Between July 1–2, 2015 Fisher and codefendant Epshod Jeune targeted escorts advertising on Backpage, committing a Woburn hotel robbery (victim "Emily") and then traveling to a Burlington hotel where Sanisha Johnson was shot and killed.
- Surveillance video and cellphone records showed a light-colored Camry (distinctive quarter panel and missing hubcap) at multiple hotel locations and frequent calls/texts among numbers tied to Jeune, an Alcatel phone, and Fisher's phone; items belonging to Emily were found at Jeune's residence.
- Police stopped the Camry at a fast-food drive‑through the day after the murder; officers questioned the occupants, seized Fisher's phone after a brief interview, towed the car, and later executed search warrants at both defendants' homes.
- At trial the Commonwealth relied on video evidence, phone records, and physical evidence; Trooper O’Brien (who viewed videos repeatedly and encountered Fisher at the stop) testified identifying Fisher in the hotel surveillance footage.
- Fisher was convicted of first‑degree murder (felony‑murder theory), attempted armed robbery of Johnson, and unarmed robbery of Emily; he appealed raising multiple errors (Miranda/custody ruling, juror excusals, O’Brien’s ID testimony, sufficiency under Brown, jury instructions, and prosecutor argument).
Issues
| Issue | Commonwealth's Argument | Fisher's Argument | Held |
|---|---|---|---|
| Motion to suppress statements (custody/Miranda) | Encounter was noncustodial — public parking lot, brief, officers stated suspects were free to go; no Miranda required. | Fisher was effectively in custody during questioning at the stop and should have received Miranda warnings. | Not custodial. Totality showed a Terry‑type stop, investigatory questioning, and Fisher left after interview; suppression denied was correct. |
| Excusal of two jurors for cause (race/bias claim) | Judge properly excused jurors who demonstrated inadequate understanding of core legal concepts or limited English; removal was based on comprehension not race. | Excusals were prejudicial and reflected racial bias by excluding jurors representative of defendants. | No abuse of discretion. Judge permissibly excused jurors for comprehension issues and explicitly considered race in a neutral manner. |
| Admissibility of Trooper O’Brien’s identification of Fisher in surveillance videos | O’Brien’s familiarity and investigative experience justified lay ID testimony to assist jury. | Lay ID testimony was improper because jury could view the same videos; officer lacked superior familiarity — admission prejudicial. | Admission of O’Brien’s identification was erroneous (jury could view videos), but error was harmless given video/photographs, corroborating phone/car evidence, and strong limiting instructions. |
| Sufficiency for first‑degree felony‑murder after Brown | Evidence showed Fisher knowingly participated in attempted armed robbery with Jeune (who was armed), continued participation after learning of the gun, and committed acts creating a plain and strong likelihood of death. | Under Brown, mere participation in attempted armed robbery is insufficient; Commonwealth failed to prove Fisher knew the gun was loaded or intended an act creating a plain and strong likelihood of death. | Evidence sufficient. Fisher’s conduct (participation in the armed robbery scheme, awareness of Jeune’s gun, ransacking while gun present, and subsequent attempt on Johnson) permitted a rational jury to find third‑prong malice under Brown. |
Key Cases Cited
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966) (custodial interrogation triggers Miranda warnings)
- Commonwealth v. Brown, 477 Mass. 805 (Mass. 2017) (limits felony‑murder to situations where defendant knowingly participated in killing or acted with intent/awareness creating plain and strong likelihood of death)
- Commonwealth v. Groome, 435 Mass. 201 (Mass. 2001) (factors for determining custody for Miranda purposes)
- Commonwealth v. Wardsworth, 482 Mass. 454 (Mass. 2019) (standards for lay witness identification from surveillance video)
- Commonwealth v. Vacher, 469 Mass. 425 (Mass. 2014) (admissibility of identification testimony when witness has special familiarity)
- Commonwealth v. Medina, 485 Mass. 296 (Mass. 2020) (review standards for suppression rulings and custody analysis)