COMMONWEALTH VS. EMMANUEL PINA.
SJC-11507
Supreme Judicial Court of Massachusetts
October 5, 2018. - February 12, 2019.
Suffolk. Present: Gants, C.J., Lenk, Gaziano, & Lowy, JJ.
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Homicide. Evidence, Accident, Self-defense, Intent, Identification. Self-Defense. Intent. Identification. Practice, Criminal, Capital case, Instructions to jury, Challenge to jurors, Assistance of counsel.
Indictments found and returned in the Superior Court Department on October 27, 2009.
The cases were tried before Elizabeth B. Donovan, J., and a motion for a new trial, filed on November 20, 2015, was considered by Christine M. Roach, J.
Edward B. Fogarty for the defendant.
Sarah Montgomery Lewis, Assistant District Attorney (John Pappas,
GAZIANO, J. A Superior Court jury convicted the defendant of murder in the first degree, on a theory of deliberate premeditation, in the shooting deaths of Jovany M. Eason and Manuel Monteiro. At trial, the Commonwealth alleged that the defendant and Eason were involved in an altercation inside a bar, then the fight spilled out into the street, where the defendant grabbed a handgun from his codefendant and fired at Eason.1 The defendant missed, but the stray round shattered a window in front of the bar and hit Monteiro, a bar employee, in the chest. The defendant, according to the Commonwealth, then chased Eason down the street and shot him multiple times in the back. As the defendant fled the scene, one of Eason‘s friends, Timothy Santos, shot at the defendant, and they exchanged several rounds of gunfire.2
In this consolidated appeal from his convictions and from the denial of his motion for a new trial, the defendant challenges a
After considering all of the defendant‘s arguments, and conducting a thorough review of the trial record, we conclude that there is no reversible error, and no reason to disturb the verdicts.
1. Background. We summarize the facts that the jury could have found, reserving other facts for our discussion of specific issues. Many of the events, both inside and outside the bar, were captured by the bar‘s security cameras, as well as by security cameras mounted on a nearby building.
In the early morning hours of August 2, 2009, an argument broke out at a bar and restaurant on Hancock Street in the Upham‘s Corner neighborhood of Boston. The argument started shortly after the codefendant and a companion entered the bar. In the entranceway, the codefendant greeted another patron with a hug, then said, “I don‘t understand why you hang with the Draper Street niggas.” The victim, Jovany Eason, who was friendly with people from the Draper Street neighborhood, took exception. Eason approached the codefendant and they exchanged angry words. A bouncer moved in and separated the two men. The codefendant and his friend left the bar and walked away from the area; Eason did not leave.
The dispute continued inside the bar, where Eason argued with one of the codefendant‘s friends, Otelino Goncalves. The altercation moved from the entranceway to the rear of the bar near the restrooms. A few minutes later, the defendant, who was also a
The hostilities spilled out onto Hancock Street, where Eason squared off to fight Goncalves in the middle of the street. Before any punches were thrown, the codefendant walked up to Eason and pointed a pistol at him. A patron inside the bar, Joao DePina,3 observed the codefendant attempt to “rack” the handgun or, as the witness described it, “He was trying to get the bullet to shoot at something.” Eason backed away. The defendant then grabbed the weapon from his codefendant‘s hand. He ran toward Eason, who was standing on the sidewalk in front of the bar, and fired. The defendant missed Eason, but the stray round, fired from a .45 caliber weapon, shattered a plate glass window near the front door of the bar and struck Monteiro in the chest. Monteiro, who was working a second job as a cook, had been watching the altercation on the street from inside the bar. He collapsed in the middle of the bar, and was pronounced dead by emergency medical technicians who arrived at the scene.
Outside, the defendant chased Eason down Hancock Street while firing at Eason. The two passed a community center on the corner of Hancock Street and Jerome Street which had its own security cameras. At the three-way intersection of Hancock Street, Jerome Street, and Bird Street, the defendant ran to the right onto Jerome Street. Eason ran to the left onto Bird Street, and collapsed near the intersection shortly after he turned onto Bird Street.4
On Jerome Street, near Cushing Avenue, the defendant encountered Timothy Santos, one of Eason‘s friends. Santos, who was armed with a .380 caliber handgun, shot at the defendant, who fired back. Both men fired multiple rounds; the defendant hit Santos
Police officers found Eason lying face down on the ground near the intersection of Hancock Street and Bird Street. He had been shot in the lower back, in the upper back near his shoulder blade, and through the shoulder or upper arm. The medical examiner extracted a .45 caliber projectile from Eason‘s lower back; the other two projectiles passed through his body. At trial, the medical examiner opined that Eason died as a result of suffering two gunshot wounds to the torso.6
2. Discussion. a. Instruction on accident. Following the jury charge, the defendant requested that the judge instruct the jury that Eason‘s death could be excused as an accident. Trial counsel argued, “[T]here was a gun battle on top of Jerome Street and that the person who was shooting down with a 45 could, in fact, in self-defense [have] shot Mr. Eason. And that would fall under the category, as I‘m thinking about it, accident.” Trial counsel also filed a supplemental request for jury instructions which read, in part,
“In this case there is evidence that there was an exchange of gunfire between two individuals on Jerome Street . . . . If you conclude that the government has failed to prove beyond a reasonable doubt that the person who shot Mr. Santos did not act in self-defense, then for purposes of the following instruction, you may consider whether the shooting death of Mr. Eason was or was not an accident.”
The prosecutor urged the judge not to instruct on accident, on the ground that there was no basis in the evidence for such an instruction because the defendant fatally shot Eason prior to the firefight on Jerome Street. The judge declined the motion that the jury be instructed on accident with respect to Eason. Because the defendant objected, we review to determine whether there was
Accident, like self-defense and defense of another, is an affirmative defense. Commonwealth v. Podkowka, 445 Mass. 692, 699 (2006). In the case of murder in the first or second degree, accident negates the element of intent to kill the victim. Commonwealth v. Chambers, 465 Mass. 520, 536 n.15 (2013); Lannon v. Commonwealth, 379 Mass. 786, 790 (1980). If “fairly raised” by the evidence, due process requires that the Commonwealth disprove accident beyond a reasonable doubt. Podkowka, supra; Commonwealth v. Palmariello, 392 Mass. 126, 145 (1984). See Commonwealth v. Robinson, 382 Mass. 189, 203 (1981). A judge, of course, should not instruct on accident where there is no evidence of an accident. See Commonwealth v. Hutchinson, 395 Mass. 568, 578-579 (1985).
A defendant is entitled to an accident instruction in a shooting death “only where there is evidence of an unintentional or accidental discharge of a firearm.” Commonwealth v. Millyan, 399 Mass. 171, 182 (1987). See e.g., Commonwealth v. Neves, 474 Mass. 355, 371 (2016) (accident instruction warranted based on defendant‘s statements to police that gun discharged accidentally when taxicab driver accelerated and grabbed defendant‘s hand); Commonwealth v. Zezima, 387 Mass. 748, 750, 756 (1982) (accident instruction predicated on evidence that firearm discharged as third party attempted to take gun out of defendant‘s hand); Commonwealth v. Zaccagnini, 383 Mass. 615, 616 (1981) (reasonable doubt concerning accident raised where defendant testified victim had gun and it discharged as they struggled for control of it); Lannon, 379 Mass. at 787, 790 (petitioner testified fatal shot was fired when screen door hit gun he was holding, causing it to discharge).
The circumstances in Millyan, 399 Mass. at 174-176, are instructive as to the defendant‘s claim that it was error not to give an accident instruction based on the evidence before the jury. In that case, the defendant entered a bar carrying a loaded shotgun; he was seeking to avenge the earlier stabbing of one of his friends, and to preempt a threat made to do him similar harm. Id. at 174-175. The defendant announced that if he saw any members of a rival motorcycle gang in the bar, “he was going to blow them away.” Id. at 175. After issuing this threat, the defendant pointed the shotgun toward the rear of the bar and fired a shell in the victim‘s direction. Id. at 176. The victim, who was standing in a poolroom adjacent to
Here, the defendant claimed that he accidentally shot the victim while exercising his right to self-defense. The theories of self-defense and accident are “mutually exclusive.” Commonwealth v. Barton, 367 Mass. 515, 518 (1975). A defendant who shoots another in the lawful exercise of self-defense is entitled to an accident instruction where the facts independently support an argument that the weapon was discharged accidentally. Id. at 517-518. See Commonwealth v. Lacasse, 1 Mass. App. Ct. 590, 598 (1973), S.C., 365 Mass. 271 (1974) (discussing “anomalous doctrine of accidental self-defense“). In Barton, supra at 517, we noted that the evidence warranted an instruction on the independent theories of self-defense and accident because the defendant claimed that “the gun went off” during the fatal struggle. Similarly, in Zaccagnini, 383 Mass. at 616, the defendant‘s testimony that the victim had a gun, and that it “went off” as they wrestled for control of it, raised “a reasonable doubt concerning whether the shooting was accidental, and . . . whether the defendant acted in self-defense.”
Here, the defendant was not entitled to an accident instruction because there was no evidence that he unintentionally or accidentally discharged a firearm. See Commonwealth v. Gibson, 424 Mass. 242, 246 n.3 (1997) (“defendant‘s own testimony that he fired the gun without aiming eliminated any issue as to accident“). Based on the number of .45 caliber shell casings deposited on Jerome Street, it is clear that the defendant intentionally fired multiple rounds at Santos after being fired upon. The defendant‘s claim that Eason‘s death was the unfortunate by-product of an intentional shooting at another person does not raise the affirmative defense of accident. Millyan, 399 Mass. at 182.
b. Transferred intent self-defense. The circumstances of this case require us, in the exercise of our plenary review pursuant to
The theory of transferred intent is well established in the Commonwealth and, indeed, forms the basis for the defendant‘s liability for the shooting death of Monteiro. See Model Jury Instructions on Homicide at 45-46 (2018). Under this theory, “if a defendant intends to kill a person and in attempting to do so mistakenly kills another person, such as a bystander, the defendant is treated under the law as if he intended to kill the bystander.” Commonwealth v. Taylor, 463 Mass. 857, 863 (2012). See Commonwealth v. Vazquez, 478 Mass. 443, 453 (2017) (transferred intent applies where defendant misidentifies victim); Commonwealth v. Fisher, 433 Mass. 340, 344 n.5 (2001) (“the jury need only find that the defendant intended to kill one person and, in the course of an attempt to do so, killed another” [quotation and citation omitted]).
In a number of States, the theory of transferred “innocent” intent has been applied to excuse the shooting death of a bystander during the lawful exercise of self-defense.8 See e.g., State v. Stevenson, 38 Del. 105, 111 (1936); Pinder v. State, 27 Fla. 370, 377-379, 383-387 (1891); People v. Jackson, 390 Mich. 621, 624 (1973); State v. Green, 206 S.E.2d 923 (W. Va. 1974). See generally Annot., Unintended Killing of or Injury to Third Person During Attempted Self-defense, 55 A.L.R. 3d 620 (1974). In LaFave, supra at 449, the concept is explained as follows:
“There are, of course, some situations where, though A intentionally kills or injures B, A is not guilty of murder or battery. . . . Now suppose A shoots at B under these circumstances but, missing B, hits and kills or injures C, an innocent bystander. If A aims at his attacker B in proper self-defense, but hits C instead, he is not generally guilty of murder or battery of C. Once again, he is only as guilty as to C as he would have been had his aim been accurate enough to have hit B.”
We have not as yet recognized transferred intent self-defense as a matter of our homicide jurisprudence, and need not do so in this case. Viewed in the light most favorable to the defendant, the evidence established that he fired errant gunshots in the direction of Bird Street, where Eason collapsed. The defendant, however, cannot point to any evidence that he fatally shot Eason during his gun battle with Santos. To the contrary, the evidence supported a reasonable conclusion that the defendant shot Eason prior to the gunfight on Jerome Street, based on shell casings recovered on Hancock Street, surveillance footage of Eason grabbing his back in the spot where he suffered a fatal gunshot wound, and the fact that Eason was found unresponsive a short distance along Bird Street after rounding the corner from Hancock Street. See Commonwealth v. Perry, 432 Mass. 214, 225 (2000) (“Where a defendant causes injury which, along with other contributing factors or medical sequella of the injury, leads to death, jurors may determine that the defendant‘s acts were the proximate cause of the injury“); Commonwealth v. Rhoades, 379 Mass. 810, 825 (1980) (defendant causes victim‘s death where his actions were “a cause, which, in the natural and continuous sequence produced death, and without which the death would not have occurred” [citation omitted]). Regardless of whether Eason was exposed to
c. Instruction on manslaughter. A manslaughter instruction is required if the evidence, considered in the light most favorable to a defendant, would permit a verdict of manslaughter and not murder. See Commonwealth v. Nelson, 468 Mass. 1, 13 (2014); Commonwealth v. Colon, 449 Mass. 207, 220 (2007), S.C., 479 Mass. 1032 (2017). “In deciding whether a manslaughter instruction is supported by the evidence, all reasonable inferences must be resolved in favor of the defendant,” Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975), but a judge should not instruct the jury “on a hypothesis not supported by the evidence.” Id.
We first address the defendant‘s request for an involuntary manslaughter instruction related to the death of Monteiro. At the charge conference, the defendant requested an instruction on involuntary manslaughter.9 He agreed that there was some circumstantial evidence of “an intent to kill Mr. Eason at that point.” He argued, however, that the fatal shot that shattered the bar window and struck Monteiro possibly had been fired as “a warning shot,” or in an “attempt to just injure somebody.” The judge declined to instruct the jury on involuntary manslaughter, and the defendant objected at the conclusion of the charge. We review to determine whether there was error and, if so, whether the error prejudiced the defendant. See Commonwealth v. Rogers, 459 Mass. 249, 252-253 (2011).
The common-law crime of manslaughter is defined as an unlawful killing without malice. Commonwealth v. Webster, 5 Cush. 295, 308 (1850). See Commonwealth v. Vizcarrando, 427 Mass. 392, 396 (1998), S.C., 431 Mass. 360 (2000) and 447 Mass. 1017 (2006) (“Malice is what distinguishes murder from manslaughter“). The distinction between murder and manslaughter “means that a verdict of manslaughter is possible only in the absence of malice.” Commonwealth v. Pagan, 471 Mass. 537, 546 (2015). The lesser included offense of involuntary manslaughter, by contrast, is defined as “the unintentional result of an act committed with such disregard of its probable harm to another as to amount to wanton or reckless conduct.” Commonwealth v. Souza, 428 Mass. 478, 492 (1998), quoting Commonwealth v. Nichypor, 419 Mass. 209, 217 (1994). See Commonwealth v. Welansky, 316 Mass. 383, 396-399 (1944).
“In determining whether an involuntary manslaughter instruction must be given, we ask whether any reasonable view of the evidence would have permitted the jury to find wanton and reckless conduct rather than actions from which a plain and strong likelihood of death would follow” (quotations and citation omitted). Commonwealth v. Braley, 449 Mass. 316, 331 (2007). We agree with the defendant‘s argument that a judge is required to provide an instruction on involuntary manslaughter where there is evidence that a defendant “was not pointing or aiming a gun at the victim, but was rather aiming in the air or at the ground.” Commonwealth v. Iacoviello, 90 Mass. App. Ct. 231, 245 (2016). We note also, as we observed in the codefendant‘s case, that a defendant is entitled to an instruction on involuntary manslaughter based on evidence that he or she pointed a loaded gun at a victim with the intent to scare or intimidate. See Tavares, 471 Mass. at 438.
The defendant‘s actions in Commonwealth v. Horne, 466 Mass. 440 (2013), illustrate the type of behavior that has been considered wanton or reckless, as opposed to an act of third prong malice, in the context of gunshots fired at a person or into a crowd of people. In Horne, supra at 444, the evidence supported a reasonable inference that the defendant, in the early morning, fired a rifle through a windows covered by venetian blinds and dark curtains. “There was nothing in the evidence to suggest that it was possible to see through the window‘s curtains and blinds, that shadows of people could be seen moving behind the covered window, or that sounds indicative of human occupation could be heard coming from the room.” Id. “[I]t is only when a defendant has reason to believe that he is firing in the direction of a person or crowd of people that his conduct creates nothing less than a plain and strong likelihood of death.” Id. at 445. Based on this, we held that the jury should have been permitted to consider whether the shooting was an act of wanton or reckless conduct. Id. at 444-445. See Commonwealth v. Kinney, 361 Mass. 709, 712 (1972) (involuntary manslaughter instruction warranted based on defendant‘s testimony that he produced gun while holding onto railing in stairway and being beaten by others, pointed it up towards ceiling, and “heard the gun go off“).
By contrast, we held in Commonwealth v. Dyous, 436 Mass. 719, 731 (2002), that the defendant, whose coventurer shot into
In this case, the evidence did not support an instruction on involuntary manslaughter. The jury were presented with overwhelming evidence that the defendant fired a gun at Eason, in front of a crowded bar. The projectile missed Eason, shattered a window, and struck Monteiro in the chest. The defendant‘s argument that he meant to fire a warning shot (apparently at chest level of the six-foot tall Eason) is entirely speculative. See Commonwealth v. Santo, 375 Mass. 299, 305-306 (1978) (“a judge is not required to instruct on a hypothesis that is not supported by the evidence“). The defendant‘s argument that he meant only to injure is equally unavailing. As discussed, discharging a shot at another person, regardless of whether the shot is meant to injure or kill, suffices to establish second or third prong malice, as it “creates a plain and strong likelihood of death.” See Mack, 423 Mass. at 290. The judge properly denied the defendant‘s request for an instruction on involuntary manslaughter.
We turn to the question of voluntary manslaughter. The defendant requested an instruction on voluntary manslaughter at the charge conference, without specifying the grounds for his request. On appeal, he contends that the judge should have provided an instruction on voluntary manslaughter based on the theory of excessive use of force in self-defense. This argument, however, is inconsistent with the defendant‘s earlier position concerning the availability of a self-defense claim.
“An objection adequately preserves the claimed error so long as counsel makes known to the court the action which he desires the court to take or his objection to the action of the court” (quotations and citation omitted). Commonwealth v. McDonagh, 480 Mass. 131, 138 (2018);
“Voluntary manslaughter is an unlawful killing ‘arising not from malice, but from . . . sudden passion induced by reasonable provocation, sudden combat or excessive force in self-defense.‘” Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006), quoting Commonwealth v. Carrion, 407 Mass. 263, 267 (1990). An instruction on voluntary manslaughter based on excessive force in self-defense is warranted where there is evidence that the defendant
We conclude that the absence of an instruction on voluntary manslaughter did not create a substantial likelihood of a miscarriage of justice. In his brief, the defendant contends that he was entitled to use deadly force outside the bar to protect himself, or his friend Goncalves, for several reasons. There was an “explosive” argument between Goncalves and Eason outside the bar; the defendant argued with Brandao (who allegedly was aligned with Eason); “all the while” Brandao pointed “what the defendant suggests is a firearm.”
The defendant did not testify, and the record does not otherwise contain sufficient evidence to support an instruction on self-defense. Brandao denied that he possessed a firearm in front of the bar, and no witnesses testified that Brandao participated in the altercation, or that Brandao threatened the defendant with a firearm.10 Moreover, the defendant did not establish that he was somehow justified in using deadly force to protect himself or another from Eason (who was unarmed).
There is no dispute, as the transcript indicates and the Commonwealth concedes, that the defendant was deprived of the right to exercise two peremptory challenges. The issue presented on appeal is whether the defendant was able to show prejudice or injury resulting from that error. See Commonwealth v. Bockman, 442 Mass. 757, 762-763 (2004).
The judge decided to empanel sixteen jurors. As a result, each party was entitled to sixteen peremptory challenges. See
On the final day of the three-day empanelment, the defendant exercised a peremptory challenge to excuse a potential juror called to fill seat number 14. The judge mistakenly informed defense counsel, “That takes care of all your challenges.” At that point, the defendant had exercised fourteen peremptory challenges and had two remaining. Later, defense counsel stated, “It is my understanding, and I might be wrong, that I had two challenges left.” Thereafter, the judge sat two jurors: juror no. 69 (seat number 16) and juror no. 80 (seat number 10) (to replace an excused juror). The defendant, in both instances, did not object to the jurors being seated or raise a challenge for cause.
While not guaranteed by the United States Constitution or the Massachusetts Declaration of Rights, peremptory challenges “historically [have] performed an important role in assuring the constitutional right to a fair trial” (quotation and citation omitted). Bockman, 442 Mass. at 762. See Commonwealth v. Mello, 420 Mass. 375, 396 (1995); Commonwealth v. Wood, 389 Mass. 552, 559 (1983). The ability to strike a potential juror for no reason at all affords a party the option of eliminating from the jury an individual who may harbor a subtle bias not fully vetted during voir dire. Bockman, supra.
In Wood, 389 Mass. at 564, we stated that “the erroneous denial of the right to exercise a peremptory challenge is reversible error
We conclude that the defendant is not entitled to a new trial based on the erroneous deprivation of the two peremptory challenges. The defendant has not shown a violation of his right to an impartial jury. He did not object when the judge advised him that he had exhausted his peremptory challenges. He did not argue at trial, in his motion for a new trial, or on appeal, that he would have used a remaining peremptory challenge to exclude either juror no. 69 or juror no. 80. Indeed, the defendant did not contend that juror no. 69 or juror no. 80 were partial or biased, and did not otherwise voice any dissatisfaction with these jurors. See Bockman, 442 Mass. at 762.
In addition, the defendant received all of the rights afforded by State law. At the time of the defendant‘s trial,
e. Identification evidence.
The defendant alleges that he was deprived of the right to a fair trial due to the erroneous introduction of identification testimony. We address each of these claims in turn.
i. Police officer‘s identification of the defendant.
Surveillance video footage from the bar and from a nearby community center building played a prominent role at trial. In his opening statement, the prosecutor characterized the video surveillance cameras “working inside and outside of [the bar] and . . . down the street at the [community center]” as “silent witnesses.” He told the jury, “You‘re going to be able to see what [the defendants] were wearing that night, who they arrived with, what time, what they did inside, . . . what they did outside and what they did leading up to, during and after the time that Jovany Eason and Manuel Monteiro were shot.”
At trial, Boston police Sergeant Detective James Wyse testified that an individual, who was depicted in the surveillance video entering the bar at 1:04 A.M., wearing a white T-shirt, was the defendant. The defendant objected to this testimony, and we therefore review under the prejudicial error standard.12 See Commonwealth v. Martinez, 431 Mass. 168, 173 (2000).
Making a determination of the identity of a person from a photograph or video image is an expression of an opinion. Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 323-324 (2000). A lay witness is permitted to identify an individual depicted in a video or photograph if that testimony would assist the jurors in making their own independent identification. See
We need not dwell on the issue whether Wyse was in a better position than the jurors to identify the defendant, and whether the testimony was admitted erroneously. It is clear that Wyse‘s identification testimony, even if erroneous, was not prejudicial. Prior to his testimony, two witnesses, Aldison Resende and Brandao, identified the defendant as the individual depicted in the surveillance footage walking into the bar, wearing a white T-shirt. The bar owner identified the defendant as the person depicted in the surveillance footage being removed from the bar after the fight in the restroom. A fourth witness, Joao, identified the defendant, from a still image of the surveillance video, as the individual outside the bar who “took the gun from the other kid.” See Commonwealth v. Austin, 421 Mass. 357, 366 (1995). Thus, although the testimony of a police officer, with its possibly greater imprint of authority as to identification of a defendant in these circumstances, is not permissible absent some compelling reason that the police officer is in a better position than the jury to identify the defendant, there was no prejudice to the defendant in these circumstances.
ii. Photographic array.
The defendant also challenges the fact that, contrary to Boston police department regulations, individuals asked to identify him from a photographic array were presented only five photographs, including his, from which to choose. In November 2004, the Boston police department adopted standard protocols for the collection and preservation of eyewitness identification evidence. Under this protocol, a photographic array must “include a total of [eight] photos consisting of seven (7) fillers, plus one (1) suspect.” Pursuant to this protocol, Wyse prepared a photographic array consisting of eight photographs arranged in sequential fashion. On August 7, 2009, a police officer unconnected to the investigation, acting as a blind
The defendant did not raise this issue in a motion to suppress identification evidence as an unnecessarily suggestive identification procedure, or object to its admission in evidence at trial. See Commonwealth v. Watson, 455 Mass. 246, 250 (2009). On appeal, he contends that the use of a five-person array violated this court‘s ruling in Commonwealth v. Walker, 460 Mass. 590, 604 (2011), and that he has been prejudiced by the error. We review to determine whether the identification procedure created a substantial likelihood of a miscarriage of justice. Commonwealth v. Wright, 411 Mass. at 682.
In Walker, 460 Mass. at 604, we held that, “[u]nless there are exigent or extraordinary circumstances, the police should not show an eyewitness a photographic array, whether simultaneous or sequential, that contains fewer than five fillers for every suspect photograph.” While the procedure used inadvertently did not comport with this requirement, the defendant has not shown prejudice from it. Walker was issued more than two years after Wyse arranged for the identification procedure used in this case. The defendant does not contend that the identification procedure was unduly suggestive. To the extent that the police, albeit inadvertently, violated their own internal policies, this was a matter for cross-examination.
iii. Witness‘s familiarity with the defendant‘s name.
The defendant contends also that the judge erred in denying his request for a voir dire examination of Joao concerning his knowledge that the shooter‘s nickname was “Ima.” The decision to conduct a voir dire examination of a witness rests in the sound discretion of the trial judge, Commonwealth v. Rodriguez, 425 Mass. 361, 370 n.5 (1997), and the judge‘s ruling will not be disturbed unless it constitutes “a clear error of judgment in weighing the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives” (quotations and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Prior to August 1, 2009, Joao recognized the defendant from the neighborhood and knew the street where the defendant lived,
The defendant requested a voir dire examination of Joao to determine “where [Joao] got that information.” The prosecutor represented that Joao had heard the nickname from an unknown source outside of law enforcement, had known the shooter “by face” prior to the incident, and knew where the shooter lived. The judge denied the request for a voir dire hearing, and ruled that the Commonwealth would be prohibited from suggesting that Joao had known the defendant‘s nickname before the shooting. The judge agreed with the Commonwealth that Joao‘s lack of personal knowledge at the time of the shooting would be “fair cross-examination.”
On direct examination, Joao testified that he had seen the shooter around “once in a while” on a particular street in the neighborhood, and that he knew that the defendant‘s father, “Mocho,” lived on that street. Joao further testified:
Q.: “Is it fair to say that the person you saw shooting the gun, you didn‘t know that person by name?”
A.: “Before, no.”
Q.: “And you didn‘t know that person by nickname?”
A.: “No.”
Q.: “But you did know, and you told the police, you knew that person by sight?”
A.: “Yes.”
Later, Joao testified that he identified “Ima” from a series of photographs. He stated, however, that he did not know the shooter‘s nickname on August 1, 2009, and only heard the nickname from someone else.
We discern no abuse of discretion in the judge‘s decision to deny the defendant‘s motion for a voir dire hearing concerning the source of Joao‘s information. Joao testified that someone told
f. Ineffective assistance of counsel.
The defendant moved for a new trial, pursuant to
In reviewing a claim of ineffective assistance in a case of murder in the first degree, we apply the more favorable standard of review of a substantial likelihood of a miscarriage of justice, pursuant to
To support his motion for a new trial, the defendant submitted five affidavits from friends and family members (his sister and
The defendant also submitted an affidavit of trial counsel detailing counsel‘s efforts to investigate and raise an intoxication defense. In sum, trial counsel located witnesses, including the defendant‘s sister, who “confirmed that [the defendant] had been drinking beer/hard liquor and smoking marijuana just before he left for the bar.” Trial counsel interviewed the defendant‘s sister and “became concerned about her memory, willingness to testify and her ability to withstand cross-examination.” In addition, trial counsel‘s investigator continued to search for other witnesses to corroborate the sister‘s testimony. The investigator identified at least one individual who indicated that the defendant had been intoxicated that night. That person subsequently refused to meet with trial counsel. Other potential witnesses, according to trial counsel, “down right refused to speak with [the investigator and trial counsel].”
During the trial, counsel continued to assess the value of presenting an intoxication defense through the defendant‘s sister, in light of her vulnerabilities and the possibility that the defendant would testify. On the first day of empanelment, trial counsel moved to exempt the defendant‘s sister from the sequestration order. He informed the judge that she would testify “as to [one] narrow area and that is that she was with my client the evening of the shooting . . . they were drinking shots and beer on the porch of their house. . . . Her opinion would be that [the defendant] had drunk excessively that night.”
As the trial unfolded, counsel waited until the close of the Commonwealth‘s evidence before he decided whether to call the sister as a witness. In his affidavit, trial counsel explained that he “assessed this possibility in conjunction with [the defendant] testifying himself.” When the Commonwealth rested, trial counsel decided not to call the sister or to present any evidence. While he did not recall the details of his discussions with the defendant‘s sister, counsel represented that “this conversation reinforced my concerns that she would not be a good witness.”
The judge had more than adequate grounds on which to deny the motion for a new trial without an evidentiary hearing. She found that trial counsel‘s affidavit was “very clear about the decision he made on the question of intoxication.” Trial counsel, she determined, “spotted the possible defense early and took reasonable and diligent steps to pursue it.” These steps included attempting to identify additional witnesses and assessing the value of calling the defendant‘s sister in light of her “difficulties.” The judge determined that trial counsel “made the deliberate and strategic decision that [the sister] would not be a good witness.” The judge concluded, and we agree, that counsel‘s informed strategic decisions were not manifestly unreasonable.
Moreover, the defendant has not demonstrated that he raised a substantial issue of newly discovered evidence. A defendant seeking a new trial on the ground of newly discovered evidence bears the burden of demonstrating that (1) the evidence “is in fact newly discovered“; (2) the newly discovered evidence is “credible and material“; and (3) the newly discovered evidence “casts real doubt on the justice of the conviction” (quotation and citation omitted). See Commonwealth v. Staines, 441 Mass. 521, 530 (2004). The first prong of this test requires a defendant to show that reasonable diligence, on the part either of the defendant or defense counsel, would not have uncovered the evidence by the time of trial, or, if a subsequent motion for a new trial, the earlier filing of the first motion for a new trial. See Commonwealth v. Grace, 397 Mass. 303, 306 (1986). See also Commonwealth v. LaFaille, 430 Mass. 44, 55 (1999) (defendant could be expected to uncover evidence that witness observed someone else shoot victim where witness dated defendant‘s sister at time of trial).
The defendant has not met his burden of demonstrating that reasonable pretrial diligence on his part would not have produced the statements by the purportedly newly discovered witnesses. The witnesses consisted of the defendant‘s friends, and a family member, who were with him for hours prior to the incident. Further, according to the trial record, two of the friends were inside
3. Review under G. L. c. 278, § 33E.
We have carefully reviewed the entire record pursuant to
Judgements affirmed.
Notes
Q.: “Does it appear that he‘s pointing something at people?”
A.: “Yes.”
Q.: “Does it appear he‘s possibly pointing a gun?”
A.: “He‘s pointing something, but I can‘t --”
Q.: “Okay. So you can‘t tell?”
A.: “No.”