486 Mass. 418
Mass.2020Background
- On March 29, 2009, a shooter fired into a parked Nissan outside an after-hours house party, killing Chantal Palmer, Shakora Gaines, and Anthony Peoples; Sharon Headley escaped. The shooter was described by some witnesses as wearing a white sleeveless T‑shirt.
- Defendant Keron Pierre was indicted for three counts of first‑degree murder, armed assault with intent to murder, and unlawful possession of a firearm; he was tried, convicted, and appealed.
- Commonwealth witnesses included Headley (inside the car) and Devon Boswell (part of the group at the car); Boswell testified pursuant to a cooperation agreement. Other witnesses (Johnson, Leacock) gave varying accounts before the grand jury and at trial.
- The Commonwealth introduced testimony by two witnesses that, months before the killings, Pierre had handled or displayed a black handgun at local domino/card games; the judge admitted this for limited purpose (access/familiarity with firearms).
- Issues on appeal focused on (1) admissibility of prior firearm‑possession testimony, (2) substantive use of a witness’s grand jury testimony (Daye rule), (3) alleged ineffective assistance for not impeaching Leacock with pending federal charges, and (4) prosecutor questioning about Pierre’s failure to "clear his name" while in Trinidad (prearrest silence / burden‑shifting).
Issues
| Issue | Commonwealth's Argument | Pierre's Argument | Held |
|---|---|---|---|
| Admission of prior testimony that Pierre had displayed a gun months earlier | Evidence admissible to show access to and familiarity with firearms; probative value outweighed prejudice | Evidence was improper propensity evidence and unduly prejudicial because weapons were not shown to be the murder weapon | Admissible; judge did not abuse discretion. Limiting instruction given; descriptions could match murder weapon so probative value sufficient |
| Substantive use of Johnson’s grand jury testimony (Daye) | Prior grand jury testimony admissible because witness could be effectively cross‑examined and testimony was not merely interrogator’s suggestion | Johnson lacked recollection so could not be effectively cross‑examined; grand jury testimony was coerced or prompted | Admissible substantively. Trial testimony permitted effective cross‑examination; coercion not established and testimony was largely cumulative |
| Failure to impeach Leacock with pending federal charges (ineffective assistance) | Prosecutor sought to exclude such impeachment; defense chose not to pursue impeachment as tactical decision | Trial counsel’s failure to pursue impeachment deprived Pierre of confrontation and was prejudicial | No substantial likelihood of miscarriage of justice. Strategic decision was reasonable; Leacock’s testimony was limited/consistent and impeachment value weak |
| Cross‑examination about not returning to U.S. to "clear his name" / burden shifting and prearrest silence | Commonwealth concedes line of questioning was error but argues harmless given curative instruction and cumulative evidence of flight | Questions improperly used prearrest silence for impeachment/substantive guilt and impermissibly shifted burden to defendant | Questions were improper (prearrest silence cannot be used substantively; usage for impeachment was error). Error deemed harmless: judge instructed jury, evidence of flight and other facts were cumulative, and conviction affirmed |
Key Cases Cited
- Commonwealth v. Holley, 478 Mass. 508 (Mass. 2017) (prior‑act evidence re weapons admissible to show access/familiarity when probative value exceeds prejudice)
- Commonwealth v. McGee, 467 Mass. 141 (Mass. 2014) (admission of prior possession of firearms to show access to means)
- Commonwealth v. Daye, 393 Mass. 55 (Mass. 1984) (prerequisites for substantive use of prior inconsistent grand jury testimony)
- Commonwealth v. McGhee, 472 Mass. 405 (Mass. 2015) (limitations when witness claims lack of memory for effective cross‑examination)
- Commonwealth v. Gardner, 479 Mass. 764 (Mass. 2018) (limits on using prearrest silence for impeachment; need showing it was "natural" to expect defendant to speak)
- Commonwealth v. Nickerson, 386 Mass. 54 (Mass. 1982) (prearrest silence and impeachment framework)
- Jenkins v. Anderson, 447 U.S. 231 (U.S. 1980) (prearrest silence may be used for impeachment in certain circumstances)
- Commonwealth v. Barbosa, 463 Mass. 116 (Mass. 2012) (caution where prior weapon evidence could not have been used in the crime)
- Commonwealth v. Collazo, 481 Mass. 498 (Mass. 2019) (error to admit evidence of possession of a second firearm that could not have been the murder weapon)
- Commonwealth v. Thompson, 431 Mass. 108 (Mass. 1999) (improper impeachment or comment may be harmless where cumulative and evidence of guilt is strong)