Commonwealth v. AhartCommonwealth v. Ahart
The defendant was convicted of murder in the first degree of the victim, Corey Davis (Corey), on theories of deliberate premeditation and extreme atrocity or cruelty. He also was
1. Background. The jury could have found the following facts. Sherrod Bright (Sherrod) believed Corey had stolen $15,000 from him. He offered the defendant $6,000 to kill Corey. He paid the defendant one-half “up front,” with the balance due upon completion of the job. During the evening of March 18, 2006, the defendant and Ahmad Bright (Bright), the codefendant
Shortly before midnight they spotted Corey’s vehicle and followed him. They found Corey’s vehicle parked on Hamilton Street in Cambridge. Bright, who was driving the Jeep, parked a few blocks away, on Pacific Street. After throwing their cellular telephones into the back seat of the Jeep, the defendant, armed with a nine millimeter semiautomatic handgun supplied earlier that night by Sherrod, and Bright, armed with a .38 caliber revolver, proceeded on foot toward Corey’s vehicle. The defendant had kept both weapons under his control while they were traveling. Both the defendant and Bright were wearing gloves, and they had different-colored hooded sweatshirts.
In the meantime, Corey and his cousin Troy were sitting in Corey’s vehicle smoking marijuana. Less than thirty seconds after Miller’s cellular telephone call to Corey ended, the defendant opened the back door of Corey’s car and shot Corey. Troy ran from the car. Bright aimed at Troy but the ammunition in the revolver failed to discharge. The defendant then shot at Troy but missed. Corey tried to flee but collapsed outside his car. He was taken to a local hospital where he died from his gunshot wounds.
The defendant and Bright fled, throwing their weapons into a construction site as they ran. They encountered Miller on Watson Street and demanded that he return to the Jeep with them. Fearing for his life, Miller complied. Once inside the Jeep, the defendant said they had “got[tenj” Corey, and he warned Miller that he “better not say anything.”
Within thirty seconds of hearing the shots, a Hamilton Street resident telephoned 911. Cambridge emergency communications received the call at 11:53 p.m. Police units were dispatched immediately. Cambridge police Sergeant George Sabbey arrived at the scene at 11:56 p.m. As he was speaking with Troy near the intersection of Hamilton and Pearl Streets, Troy pointed to a grey Jeep Cherokee speeding down Pearl Street and exclaimed, “That’s the car, that’s the car.” He had seen the defendant and Bright in the Jeep at a Cambridge housing project a few weeks earlier.
The guns were recovered by police. Deoxyribonucleic acid (DNA) testing done on the guns indicated that Sherrod was a major contributor to swabbings taken from the trigger of the nine millimeter handgun.
The defendant arranged a meeting with Sherrod and Miller several days after the murder to discuss an alibi. After he was arrested, the defendant had a telephone conversation with his
The defense at trial, developed through cross-examination of Commonwealth witnesses and closing argument, was that Miller was not a credible witness, and that it was Miller who had killed Corey. Miller’s cellular telephone records and corresponding cellular tower records indicated that Miller was in a location several blocks away from the murder scene at the time Corey was shot. Similar records for the defendant’s and Bright’s cellular telephones indicated they were not in use in the minutes before and after the shooting. They also showed the movements of the trio around Cambridge and Dorchester (where Bright lived) that corroborated much of Miller’s testimony about their activities that night.
2. Limitation on cross-examination. The defendant argues that the judge’s limitation on his cross-examination of Miller on the matter of bias violated his right of confrontation under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. The defendant’s claim is based on two rulings where the judge sustained objections to the following questions asked by trial counsel, while cross-examining Miller:
(1) “Do you know that the story you tell, about driving with soon-to-be murderers in the car, yourself, that that could be considered as being an accessory before the fact of murder?”
(2) “Do you know that it puts you in joint enterprise with the people you’re talking about, for the crime of murder?”
The questions, as phrased, were objectionable. They asked Miller for legal opinions concerning two complex areas of law, accessory before the fact and joint venture, that he had not been shown to be qualified to give. See Commonwealth v. Boyd, 367 Mass. 169, 182 (1975). Significantly, Miller was not asked if he
“If, on the facts, there is a possibility of bias, even a remote one, the judge has no discretion to bar all inquiry into the subject.” Commonwealth v. Tam Bui,
The defendant also contends that the prosecutor improperly vouched for Miller when registering his objection to the first question, by stating improperly in the presence of the jury: “Your Honor, first of all, it can’t. Objection.” We disagree. There was no improper vouching because the prosecutor did not “express[] a personal belief in the credibility of a witness, or indicate [] that he or she has knowledge independent of the evidence before the jury.” Commonwealth v. Ortega,
3. Police vouching. The defendant contends that a State police officer had improperly vouched for Miller’s credibility, and thereby placed “the imprimatur of official belief in the [witness],” when he testified that after Miller had given three versions of events regarding the night of murder, he told Miller he would speak to Miller’s probation officer if Miller cooperated in the investigation. The officer testified that thereafter, Miller appeared before the grand jury, after which police continued to investigate his version of events, “verifying them] . . . with forensics, telephone records, and there might have been other things that were done.” The officer then spoke to Miller’s probation officer and asked if she would help Miller by seeking to have his probation extended. The defendant argues that the clear import of the officer’s “verification” of Miller’s last version of events and his offer to help Miller with his probation matter was the officer’s official belief that Miller was telling the truth. We disagree.
It is clear that the officer was not vouching for Miller, as he had not expressed his personal belief in Miller’s credibility. See Commonwealth v. Ortega, supra. He was describing the steps taken in the investigation to corroborate through independent evidence Miller’s account of what transpired that evening. This “verification” was essentially the fruits of that investigation — independent evidence, and not the officer’s belief in Miller —■ which ultimately was laid out before the jury. This independent evidence included telephone records used to trace the movement of the Jeep through Boston and Cambridge, ballistics reports identifying the guns that were involved, and DNA reports
4. Sequestration. The defendant argues that the judge erred by declining to sequester two police officer witnesses who were involved in the investigation, and who had conducted interviews of Miller. The prosecutor agreed that the officers would remain outside the court room during opening statements. Only one of the officers from the State police testified.
The decision to sequester witnesses lies within the discretion of the trial judge. Commonwealth v. Watkins,
5. Prosecutor’s closing argument. The defendant first contends that the prosecutor misstated the evidence in his closing argument, as outlined below. After reviewing the transcript and the exhibits, we conclude that the prosecutor’s closing argument was based soundly in the evidence presented at trial, together with reasonable and possible inferences that could have been drawn from the evidence. Commonwealth v. Dinkins,
The prosecutor’s argument that Miller could not have been the killer was grounded in cellular telephones records and the testimony of a Sprint/Nextel engineer, who testified that when Miller was on his cellular telephone between 11:43 p.m. and 11:53 p.m. on March 18, 2006, he must have been in an area several blocks away from the murder. The prosecutor’s argument that Miller could not have committed the murder, which occurred at about 11:52 p.m., was firmly based on the evidence and fair inferences that could be drawn therefrom. There was no error.
The defendant next contends that the prosecutor impermis-sibly vouched for the credibility of the State police officer who testified that he arranged to help Miller with his probation situation in exchange for his cooperation, but that he did not make any promises to Miller about being charged with a crime, and that he had no authority to make such a promise. Trial counsel for the defendant had argued to the jury that Miller could not be believed when he said he received “no deal” on the murder case from the officer, and that the officer must have “winked at him”; the prosecutor argued in response that the question whether a deal existed did not rest only on Miller’s testimony. He said
The defendant’s reliance on Commonwealth v. McCoy,
6. Review under
Judgments affirmed.
Notes
Ahmad Bright was tried separately and convicted of murder in the second degree. His conviction was affirmed on appeal. See Commonwealth v. Bright,
The Commonwealth asserts, and the defendant does not challenge, that the prosecutor requested the presence of the two officers for this reason. The officers had interviewed nearly all the civilian witnesses, and they were responsible for securing the presence at trial of those witnesses, many of whom were uncooperative or reluctant.