450 Mass. 645 | Mass. | 2008
Based on a shooting that occurred in December, 1999, a jury convicted the defendant of murder in the first degree, as a joint venturer, on the theory of extreme atrocity or cruelty.
The jury could have found the following facts. Both the defendant and Ennis sold drugs, both on the street and, during December, 1999, from an apartment that was leased to another at 30 Walnut Park in the Roxbury section of Boston. Michael
The victim was last seen at about 10 p.m. on December 25, 1999, with the mother of one of his children outside her residence on Walnut Park. In her company, the victim spoke to someone on his cellular telephone and asked, “Is that you in the gray car?” There was a gray automobile within sight. The victim told the person on the telephone that he was just going to take his family upstairs and then would be right back down. The victim had been speaking with the defendant.
On the morning of December 26,1999, the victim’s automobile was towed from a wooded area adjacent to a parking lot of a school in Brockton. Two days later, on December 28, after the victim’s sister reported the victim missing, his body was discovered in the trunk of his automobile at an automobile recovery yard. The victim’s body had been wrapped with duct tape with a pillowcase placed over his head. The victim had been beaten, bound, and shot five times. He had been shot once in the jaw, once in the neck, twice in the chest, and once in the legs.
Investigation revealed that the pillowcase placed over the victim’s head matched one recovered from the apartment at 30 Walnut Park, from which the defendant and Ennis sold drugs. Cellular telephone records indicated that between 1 a.m. and about 4 a.m. on December 26, the cellular telephone that the defendant possessed was used in Quincy, Braintree, Randolph, Avon, Brockton, and Holbrook. There was also ballistics evi
Early Christmas morning, the defendant, Carter, and another man went to the Stamford Street apartment belonging to Knight. A few hours later, Knight, from a house of correction, spoke with Carter on the apartment’s telephone. Later that day, at about 7 p.m., Knight called the apartment again. The defendant was present and spoke with Knight. The defendant indicated that he was going to take care of a problem. Knight asked, “Mike Lee [the victim]?” The defendant replied affirmatively.
At about 5 a.m. on December 26, Brimage let the defendant, Ennis, Carter, and another man into the Stamford Street apartment. Brimage went to sleep. She woke up after 8 a.m. to find the defendant and Ennis present. Later, , the defendant unzipped a blue backpack and pulled oút a gun and showed it to Ennis. Ennis said, “Damn, you almost emptied the clip on that nigger.” The defendant laughed and said, “Shit.”
At about 7 p.m. on December 26, the defendant visited his friend Renee Phillips at her apartment. Referring to the victim, the defendant told Phillips, “We had to take a ride with him last night.” He went on to say, “Well, I had to leave that nigger in his trunk.”
During the evening of December 28, at the Stamford Street apartment, the defendant asked Brimage if she had heard that the victim had been killed (Ennis was not present). Brimage stated that she had not. The defendant told her that it was on the news and that the victim had been killed in the woods. Brimage turned on the news. While she was watching, Knight telephoned. The defendant spoke with Knight, and during their conversation, the defendant used the phrase “lights out.” Afterward, Brimage asked the defendant what the television report on the victim’s
The defendant attempted to evade police, but was arrested on January 2, 2000, in the Walnut Park area. He received Miranda warnings and told police that on Christmas Day, he had called the victim and had made arrangements to purchase one hundred dollars’ worth of marijuana from the victim that evening. The defendant then headed on foot to 38 Walnut Park to see Wilson. While the defendant was heading into 38 Walnut Park, at approximately noon or 1 p.m., he ran into the victim, who was walking out of that building. The victim could not confirm that the drug deal would occur. The defendant made plans with the victim to meet on Walnut Park at about 10:30 p.m. that evening. The defendant then visited with Wilson for almost one hour. He later borrowed a motor vehicle and drove to Plymouth, visited Knight, and then returned to Boston. The defendant stated that he went to the Stamford Street apartment. He unsuccessfully tried to contact the victim. The defendant returned to Walnut Park at 10:30 p.m., but the victim did not appear. The defendant met up with Ennis. The defendant parted with Ennis and went to a club, where he stayed until 2 a.m. on December 26. The defendant returned to the Stamford Street apartment. The defendant said he learned of the victim’s death from the news on either Monday, December 27, or Tuesday, December 28.
Neither the defendant nor Ennis testified, and they did not call any witnesses to testify on their behalf. The defendant’s trial counsel suggested that it was Carter, not the defendant, who had killed the victim. He argued that Brimage and Phillips were not credible witnesses. He further pointed out that there was no forensic or ballistics evidence implicating the defendant and that there were inadequacies in the police investigation.
1. Evidentiary issues, a. After being arrested, Ennis gave a statement to police in which he stated that he had spent Christ
There was no prejudice to the defendant. See Commonwealth v. Braley, 449 Mass. 316, 326 (2007). As to Ennis’s false alibi, there is no likelihood that the jury would have found the Commonwealth’s case against the defendant significantly less persuasive without considering Ennis’s statements. See Commonwealth v. James, 424 Mass. 770, 783 (1997); Commonwealth v. LeBlanc, 364 Mass. 1, 9-10 (1973). Ennis’s efforts to exculpate himself did not corroborate any of the relevant evidence against the defendant. See Commonwealth v. James, supra. The fact that the jury acquitted Ennis indicates that they did not hold against him his efforts to falsify an alibi, and thus, such efforts could not reasonably be said to be significant evidence against the defendant. Ennis’s statement that the defendant was involved in the drug business was of no real significance. The fact that the defendant, Ennis, and the victim all sold drugs was undisputed. Ennis’s statement to police that the defendant was involved in the drug business was cumulative of other evidence admitted without objection. See Commonwealth v. Braley, supra.
b. During the testimony of Knight, a tape recording of a telephone conversation that took place on December 28, among Knight, the defendant, and Ennis, was played for the jury. The jury were permitted to read an informal transcript of the recording while they listened to the conversation. During the recording, Ennis stated to Knight that he and the defendant “were kicking his ass nigger.” The judge admitted the statement, over the defendant’s objection, as an adoptive admission.
We reject the defendant’s contention that there was an inadequate foundation for the judge to admit the statement as an adoptive admission. Contrary to the defendant’s suggestion, the judge did not state that the defendant silently assented to Ennis’s statements, but found that the defendant said, “Yo, chill,
c. We reject the defendant’s contention that a substantial likelihood of a miscarriage of justice arose due to the testimony of Sergeant Leonard Coppenrath of the State police regarding statements that the defendant made after his arrest. Specifically, the defendant (after receiving Miranda warnings) told Coppenrath that, on December 24, he had gone to an establishment or club and remained there until a shooting had occurred. Coppenrath added that the Boston police department “indicated that no such shooting took place.” The judge sustained the defendant’s objection and instructed the jury to disregard “what the Boston police reported.” The defendant also told Coppenrath that, on December 25, he again went to the club and left there “about 2 p.m. [¿fe] [on December 26] at the time of the alleged shooting.” At a sidebar conference, the defendant and counsel for Ennis objected. The judge instructed the jury as follows: “[D]uring the course of Sergeant Coppenrath’s testimony, he interjected at one point that the shooting was at 2 a.m. [sic]. I’m going to ask you to disregard that.” On redirect examination, Coppenrath stated, with no objection by the defendant’s trial counsel, that the defendant had told him that, on December 26, he had left the club “[b]ecause of an alleged shooting that took place at 2 a.m. at [the club].” The defendant argues that these statements were prejudicial because they undermined his alibi by indicating that no shooting had occurred and had the effect of suggesting to the jury that his alibi was false. The defendant maintains that the prejudicial effect of the statements was not mitigated by the judge’s instructions.
Jurors are presumed to follow a judge’s instructions, including ins'tructions to disregard certain testimony. See Commonwealth v. Auclair, 444 Mass. 348, 357-358 (2005), and cases cited. In addition to his two instructions made at the time of two
There was no error in Coppenrath’s testimony on redirect examination because Coppenrath was simply pointing out that the defendant had stated that a shooting had occurred at 2 a.m. at the club. Apart from this testimony, there was evidence from which the jury could have reasonably inferred that the victim was killed anytime between 10 p.m. on December 25, when he was last seen with the mother of one of his children, and the morning of December 26, when his automobile was towed from the woods next to a school in Brockton. While the defendant told Coppenrath that, after 10:30 p.m. on December 25, he went to a club until 2 a.m. on December 26, and then returned to the Stamford Street apartment, telephone records indicated that he was traveling from Boston to Brockton from 1 a.m. to 4 a.m. on December 26, and Brimage testified that the defendant did not return to the Stamford Street apartment until 5 a.m. on December 26.
2. Denial of the defendant’s motion for a required finding. The defendant’s motion for a required finding was denied by the judge at the close of the Commonwealth’s evidence. The defendant argues that there was insufficient evidence to convict the defendant as a joint venturer because, with Ennis’s acquittal, there was no evidence that “a principal other than the defendant” was the person who shot the victim, Commonwealth v. Green, 420 Mass. 771, 779 (1995). We reject his argument.
“It is not necessary that the Commonwealth prove the identity of the other joint venturer or joint venturers, as long as the evidence supports the existence of some principal other than the defendant and that the defendant shared the other’s intent and was available to help if needed.” Commonwealth v. Gonzalez, 443 Mass. 799, 806 (2005). Additionally, “it is not necessary that the Commonwealth prove ‘the precise conduct of each [individual] if there [is] evidence that a [homicide] took place.” Id., quoting Commonwealth v. Bianco, 388 Mass. 358, 367,
3. Jury instructions. On the second day of their deliberations, the jury sent the judge a written note asking, “On the law of joint venture pertaining to this case, does it only refer to only the two defendants, Williams and Ennis?” The judge and the prosecutor considered the question confusing. The defendant’s trial counsel and Ennis’s trial counsel asked the judge to tell the jury to “confine” themselves to determining “was [the defendant] a joint venturer with [Ennis] or was [Ennis] a joint venturer with [the defendant].” The judge declined to give the instruction, stating that he did not understand the jury’s question. Over the defendant’s objection (and Ennis’s), the judge sent the following written response to the jury: “Jurors: I am unable to answer your question because I do not understand it.”
The judge anticipated that the jurors might clarify their question. Shortly thereafter, the judge received another written question from the jury, “Can one defendant be found guilty of joint venture and the other defendant found not guilty?” Without objection, the judge responded, “Yes.”
The defendant argues that the judge’s responses posed the risk that the defendant was convicted as a joint venturer, even if the Commonwealth had not proved that any other person was engaged in the joint venture or that any person had acted as a principal.
4. Motion to set aside verdict. The judge did not abuse his discretion in denying the defendant’s motion to set aside the verdict on the ground of mutually antagonistic defenses. See Commonwealth v. Diaz, 448 Mass. 286, 290 (2007). Ennis did not seek to be acquitted by blaming the defendant. Rather, Ennis and the defendant shared common strategies, namely to suggest that someone else, likely Carter, committed the shooting, and to rely on the lack of forensic evidence implicating them in the shooting. Further, the videotape recording that showed the defendant entering the Stamford Street apartment building at 5 a.m. on December 26 was cumulative of Brimage’s testimony. That Brimage could not positively identify Ennis on the videotape cannot be said to be exculpatory, antagonistic, and prejudicial in light of Brimage’s testimony that there was a figure she could not make out on the recording, and that after letting this group into the apartment, she observed Ennis among them. The judge correctly concluded that the defenses were not “mutually antagonistic.” See id.
5. Motion for a new trial. We reject the defendant’s contention that he was denied effective assistance of trial counsel when his counsel failed to obtain a copy of a television news broadcast that Brimage watched on the evening of December 28, at the Stamford Street apartment with the defendant nearby or present. The defendant argues that the recording of the broadcast might
In support of his motion for a new trial, the defendant submitted a one-page affidavit in which he states that the broadcast had been on “the Fox 25 early news,” and that the reporter had been taken to the location where the victim’s automobile had been discovered, namely, in the woods. The defendant also states that during Brimage’s trial testimony, he informed his counsel of this information and requested that he should subpoena a tape recording of the broadcast. The defendant’s trial counsel did nothing about the tape recording and, according to his affidavit, could not recall why. The defendant was granted post-trial discovery, but the television station responded that it did not have any records in existence pertaining to the discovery of the victim’s body.
We review the defendant’s ineffective assistance of trial counsel claim under G. L. c. 278, § 33E. See Commonwealth v. Frank, 433 Mass. 185, 187 (2001); Commonwealth v. Parker, 420 Mass. 242, 246 (1995). The absence of the tape recording of the broadcast at trial did not amount to error and, in any event, was not “likely to have influenced the jury’s conclusion.” Commonwealth v. Frank, supra at 188, quoting Commonwealth v. Wright, 411 Mass. 678, 682 (1992). The content of the broadcast was speculation. See Commonwealth v. Bolduc, 375 Mass. 530, 540 (1978). Further, the point of potential impeachment, concerning the location of the victim’s automobile, would have been diminished by the absence of impeachment on the issue of the type, and extent, of the victim’s injury. At trial, Brimage recounted that the defendant said that the victim had been shot “everywhere,” including in the head, face, and neck, while the broadcast merely reported an unspecified “gruesome discovery.” The medical examiner’s testimony corroborated Brimage’s testimony. The defendant’s affidavit in support of his new trial motion was silent on any possible impeachment concerning
6. Relief pursuant to G. L. c. 278, § 33E. We have reviewed the entire record under our statutory obligation and we decline the defendant’s invitation to exercise our authority under G. L. c. 278, § 33E. The lack of forensic evidence, such as deoxyribonucleic acid retrieved from eyeglasses and boots found in the Walnut Park apartment used by the defendant and Ennis, linking the victim to the apartment, was argued to the jury during the defendant’s closing remarks and was for them to consider. The jury’s verdict was amply supported by other evidence offered by the Commonwealth, including the defendant’s display of a firearm to Ennis on December 26 and his statement to Phillips the same day that he had to leave the victim in his trunk.
The defendant’s trial counsel was able to argue, with respect to a fingerprint of a person named Gary Richards found on the trunk of the victim’s automobile, that the Commonwealth’s investigation was not adequate. That evidence did not exculpate the defendant and does not call into question the jury’s verdict.
Finally, the Commonwealth’s witness, Timothy Howard, did not exculpate the defendant. Reading Howard’s testimony in full shows that he did not know from whom he allegedly purchased drugs on December 26, at 2 or 3 a.m., at the apartment on Walnut Park from which the defendant and Ennis sold drugs. He claimed it was either the defendant or Ennis.
7. Conclusion. The defendant’s conviction is affirmed, as is the denial of his motion to set aside the verdict and the denial of his motion for a new trial.
So ordered.
The Commonwealth had proceeded on theories of deliberate premeditation and extreme atrocity or cruelty.
The defendant’s trial counsel brought out, in the cross-examination of a witness, that Carter and Knight had been involved in selling drugs.
The defendant does not argue that the judge erred in instructing the jury on the law of joint venture.