Commonwealth v. Walker, 460 Mass. 590

Background

Walker was convicted in the Superior Court of first-degree murder on theories of deliberate premeditation and extreme atrocity or cruelty, plus armed assault with intent to murder of Astacio and possession of an unlicensed firearm.
Codefendant Willie Johnson was acquitted; a motion for a new trial asserting ineffective assistance of counsel was denied after an evidentiary hearing.
Walker’s appeal contends ineffective assistance for failing to suppress Harrison’s out-of-court identification, failing to object to hearsay in related testimony, failing to object to the prosecutor’s closing argument, and omitting evidence of a third-party confession.
Walker also challenges the trial judge’s limiting instruction on third-party exculpatory evidence, admission of drug-dealing testimony, and denial of an alibi instruction.
Walker further contends the evidence is legally insufficient to convict him as a principal of armed assault with intent to murder.
The court affirmed Walker’s convictions and the denial of the new-trial motion, and declined to reduce the murder conviction under G. L. c. 278, § 33E.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance for failure to suppress identification	Walker claims suppression would likely succeed due to suggestive identification.	State argues no likelihood of suppression; trial strategy reasonable.	Counsel not ineffective; no substantial miscarriage of justice from admission.
Hearsay in out-of-court identification testimony	Harrison’s statements exceeded identification context and were hearsay.	Admission was proper as contextual to identification and cross-examined.	Counsel not ineffective; hearsay within proper contextual limits and harmless.
Prosecutor's closing argument	Prosecutor improperly suggested Harrison identified Walker as shooter.	Closing argument framed by evidence; not improper.	Counsel not ineffective; remarks within trial court’s discretion and context.
Evidence of third-party confession	Defense failed to elicit third-party admission from Green brothers.	Impeachment risk and lack of sufficient basis for admission; strategic choice reasonable.	Counsel not ineffective; decision not manifestly unreasonable.
Limitation on exculpatory third-party evidence	Limiting instruction prevented jury from considering third-party tip for truth.	Limitation proper; evidence unreliable if used for truth of matters asserted.	Limitation within discretion; no substantial miscarriage of justice.
Sufficiency of evidence for armed assault with intent to murder	Evidence showed intent and overt steps toward killing Astacio; principal liability shown.	No direct evidence Astacio was in line of fire; insufficient to convict as principal.	Evidence sufficient under attempted battery theory; rational jury could find intent and close proximity.

Key Cases Cited

Commonwealth v. Martinez, 425 Mass. 382 (Mass. 1997) (ineffective-assistance standard under §33E review)
Commonwealth v. Gonzalez, 443 Mass. 799 (Mass. 2005) (more favorable standard for §33E review)
Commonwealth v. Rodriquez, 364 Mass. 87 (Mass. 1973) (Rodriquez instruction on jury deliberations)
Commonwealth v. Silva-Santiago, 453 Mass. 782 (Mass. 2009) (eyewitness identification protocol and admissibility guidance)
Commonwealth v. Odware, 429 Mass. 231 (Mass. 1999) (pretrial identification admissibility and reliability limits)
Commonwealth v. Payne, 426 Mass. 692 (Mass. 1998) (non-suggestive pretrial identifications admissible without gatekeeping)
Commonwealth v. Jones, 423 Mass. 99 (Mass. 1996) (reliability safeguards for eyewitness identifications)
Commonwealth v. Vardinski, 438 Mass. 444 (Mass. 2003) (cross-examination and reliability of eyewitness identification)
Commonwealth v. Melton, 436 Mass. 291 (Mass. 2002) (elements of attempted battery and proximity considerations)
Commonwealth v. Adams, 458 Mass. 766 (Mass. 2011) (gatekeeping and admissibility context for identification evidence)
State v. Henderson, N.J. 208 (N.J. 2011) (balancing system and estimator variables for reliability of identifications)