491 Mass. 339
Mass.2023Background
- April 30, 2011: a shooter entered a Springfield barbershop; Sheldon Innocent was killed and another patron (King) was shot and survived. Shots were also fired at police later when defendant was in a car trunk; police returned fire and arrested him.
- Physical evidence tied the defendant to the crime scene: shell casings linked to a Ruger and a Taurus (the latter recovered from the defendant), DNA from the defendant found inside gloves and a sweatshirt recovered at a Burr Street house, and gunshot residue on those garments.
- Multiple eyewitnesses identified the defendant; several described the shooter as having braided/cornrowed hair. Police showed photographic arrays to witnesses; some testimony emphasized facial features (not just hair) and prior community familiarity with the defendant.
- Defense theory emphasized misidentification based on hairstyle (claims defendant lacked cornrows), eyewitness unreliability (array procedures and environmental stressors), and a third-party culprit (Trevin Smith). Trial counsel declined to call certain hair photographs and experts and did call some impeachment of eyewitnesses; the jury convicted on all counts including first-degree murder.
- Postconviction proceedings: defendant sought a new trial alleging ineffective assistance for failing to present hair-growth and eyewitness-ID experts, and error in exclusion of third-party evidence. A motion judge held an evidentiary hearing and denied the new-trial motion; the SJC consolidated the direct appeal and the motion appeal and affirmed.
Issues
| Issue | Commonwealth's Argument | Kirkland's Argument | Held |
|---|---|---|---|
| Counsel’s failure to introduce prison photographs and hair-growth expert testimony about cornrows | Counsel’s tactical choice was reasonable; existing defense evidence already challenged hairstyle | Counsel ineffective for not using photos/experts to show defendant could not have had cornrows | Strategic decision not manifestly unreasonable; experts were inconclusive and would not likely have changed verdict given strong physical evidence |
| Failure to call eyewitness-identification expert (array suggestiveness & estimator variables) | Array not unduly suggestive; contesting procedure/conditions goes to weight; physical and ID evidence would remain | Counsel ineffective for not presenting expert to suppress or impeach ID (array distinctiveness, presentation, stress/familiarity) | Array and presentation not so suggestive to warrant suppression; expert testimony would not likely have altered outcome amid DNA/ballistics; counsel not ineffective |
| Exclusion of third-party culprit evidence (testimony re: Trevin Smith) | Trial judge permissibly limited speculative or weakly connected testimony; admission would have confused jury | Exclusion prevented jury from considering a viable alternate perpetrator; motion judge improperly discounted new evidence presented posttrial | Any trial-court error was harmless: defense introduced much of the same facts through other witnesses; postconviction additional evidence was either harmful or not sufficiently exculpatory; motion judge did not err |
| C.278, §33E review (independent review of murder verdict) | No basis to set aside or reduce verdict given the record | Sought reversal or new trial under §33E | SJC conducted §33E review and found no basis to disturb convictions |
Key Cases Cited
- Commonwealth v. Don, 483 Mass. 697 (standard for reviewing ineffective assistance in capital murder appeals)
- Commonwealth v. Gonzalez, 443 Mass. 799 (ineffective assistance standard reference)
- Commonwealth v. Kolenovic, 471 Mass. 664 (deference to trial counsel tactical decisions)
- Commonwealth v. Jacobs, 488 Mass. 597 (standard and deference on new-trial motions and credibility findings)
- Commonwealth v. Velez, 487 Mass. 533 (accepting judge's findings supported by record)
- Commonwealth v. Perkins, 450 Mass. 834 (appellate assessment of trial record when motion judge differs)
- Commonwealth v. Ayala, 481 Mass. 46 (calling experts is tactical; manifest-unreasonableness test)
- Commonwealth v. Gomes, 470 Mass. 352 (recognition of evolving eyewitness-ID research)
- Commonwealth v. Gomes, 478 Mass. 1025 (clarification on counsel and eyewitness-ID instruction)
- Commonwealth v. Silva-Santiago, 453 Mass. 782 (photographic array procedures and limits on suppressing IDs)
- Commonwealth v. Montez, 450 Mass. 736 (distinctiveness of features in arrays)
- Commonwealth v. Thornley, 406 Mass. 96 (witness’s unequivocal reliance on non-distinctive features reduces suggestiveness concerns)
- Commonwealth v. Conkey, 443 Mass. 60 (third-party culprit evidence admissibility and harmless-error standard)
- Commonwealth v. Rosa, 422 Mass. 18 (third-party-caller evidence must have rational tendency and not be speculative)
- Commonwealth v. Moore, 480 Mass. 799 (procedural consolidation and review standard for §33E appeals)