56 N.E.3d 814
Mass.2016Background
- On Aug. 27, 2011, Derrick Barnes was shot and killed on a Dorchester street; shell casings indicated two guns were used. Two men (nicknamed "Jigga" and "Drano") approached the porch and shots were fired.
- Commonwealth's identification evidence came mainly from Shantee Griffin and Rondale Williams: each gave extra-judicial identifications to police/grand jury, but neither positively identified the defendant Frankie Herndon (or codefendant Frederick Henderson) at trial.
- Officers testified to Griffin's and Williams's out-of-court identifications; Griffin’s recorded interview and grand jury testimony implicated Herndon; Williams’s unrecorded interview was testified to by detectives Benton and Wyse.
- Herndon testified to an alibi supported by a friend; Henderson presented an alibi but did not testify. A jury convicted Herndon of first‑degree murder and unlawful possession of a firearm.
- Post-conviction challenges on appeal: (1) refusal to give a Henderson/Gomes‑style eyewitness identification instruction, (2) admission of Williams’s out‑of‑court identification through detectives without the prosecutor first asking Williams about it on direct, and (3) adding/sequestering the defendant’s sister as a witness based on a Facebook photo.
Issues
| Issue | Commonwealth's Argument | Herndon’s Argument | Held |
|---|---|---|---|
| Whether judge erred by declining defendant's post‑Henderson/Gomes eyewitness ID instruction | Rodriguez model charge was proper; defendant offered no expert/scholarly support to compel the newer instruction | Requested instruction reflected modern scientific principles and Gomes provisional instruction; judge should have given it | No error: judge properly used Rodriguez instruction; Gomes/provisional model applied prospectively and defendant offered no evidence to require divergence |
| Whether detectives’ testimony about Williams’s prior ID violated Confrontation Clause when prosecutor did not first ask Williams about the ID on direct | Admission permissible because Williams testified at trial and was available for cross‑examination; substantive admission allowed under Mass. evidence approach | Prosecutor should have questioned Williams first; failing to do so deprived timely cross‑examination and violated confrontation rights | Not reversible error here; court requires going forward that prosecutors question the identification witness about the prior ID before introducing third‑party testimony, but the omission in this trial was harmless given availability, notice to defense, and offer to recall witness |
| Whether adding the defendant’s sister to the witness list (thereby triggering sequestration) violated public trial/open‑court rights | Facebook photo and references were potentially probative and justified adding her as a witness and sequestering her under Rule 21 | Addition was pretext to exclude sister from courtroom and infringed defendant’s right to public trial | No abuse of discretion: judge permissibly added her to witness list and sequestration was within broad discretion |
| Whether cumulative errors or other issues warrant a new trial under G. L. c. 278, § 33E | Trial record does not show reversible error or miscarriage of justice | Trial errors affected fairness and require new trial | No basis for new trial under § 33E; convictions affirmed |
Key Cases Cited
- Commonwealth v. Gomes, 470 Mass. 352 (provisional adoption of expanded eyewitness identification instructions)
- Commonwealth v. Rodriguez, 378 Mass. 296 (model eyewitness ID instruction used by trial judge)
- Commonwealth v. Cong Duc Le, 444 Mass. 431 (prior identifications admissible substantively when declarant testifies and is cross‑examined)
- Commonwealth v. Meas, 467 Mass. 434 (standard of review for preserved instructional error)
- United States v. Owens, 484 U.S. 554 (confrontation clause requires opportunity for full and fair cross‑examination)
- Commonwealth v. Bastaldo, 472 Mass. 16 (affirming use of Rodriguez instruction where appropriate)
- Commonwealth v. Brescia, 471 Mass. 381 (retrospective application of new rules considered only in extraordinary circumstances)
- Commonwealth v. Navarro, 474 Mass. 247 (discussing prospective application of Gomes and treatment of eyewitness instruction changes)