Supreme Judicial Court of Massachusetts, Middlesex
Argued: October 10, 2014.
Indictments found and returned in the Superior Court Department on June 6, 2006.
Pretrial motions to suppress evidence were heard by Diane M. Kottmyer, J; the cases were tried before Sandra L. Hamlin, J., and a motion for a new trial, filed on August 12, 2011, was considered by her.
Judgments affirmed. Order denying motion for new trial affirmed.
James W. Rosseel for the defendant.
Fawn D. Balliro Andersen, Assistant District Attorney ( Nicole L. Allain, Assistant District Attorney, with her) for the Commonwealth.
Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.
[23 N.E.3d 78] Cordy, J.
In the early morning hours of March 28, 2006, Doowensky Nazaire was shot and killed in front of a night club in Cambridge. Although the firearm was never recovered, the evidence implicating the defendant, Elysee Bresilla, as the shooter was substantial. Within minutes of the shooting, Cambridge police officers found the defendant crouching in the yard of a nearby residence. Within an hour, the police had performed a showup with a witness who identified the defendant as the shooter. Two eyewitnesses who knew the defendant came forward and identified him as the shooter. The defendant's hands tested positive for gunshot primer residue. In the path of flight described by numerous witnesses, the police found the defendant's discarded brown leather jacket. On the night of the shooting, two witnesses identified that jacket as the one worn by the shooter.
The defendant was indicted on charges of murder in the first degree under theories of premeditation and extreme atrocity or
cruelty, and possession of a firearm without a firearm identification (FID) card, in violation of G. L. c. 269, § 10 ( h ) (1). The defendant filed motions to suppress the identifications of himself and his jacket, which motions were denied. At trial, the defendant primarily challenged the identification evidence and the procedures employed by the Cambridge police in obtaining that evidence. A jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation, and he was sentenced to a mandatory term of life without the possibility of parole.
On appeal, the defendant raises numerous claims of error, including a contention that the Cambridge police should have presented witnesses with a " jacket lineup." We reject that contention and find no reversible error arising fro the defendant's other claims. Although evidence of inappropriate conduct by some of the investigating police officers was brought out during the course of the proceedings, we conclude that there is an insufficient basis for exercising our authority under G. L. c. 278, § 33E, to order a new trial. Accordingly, we affirm the defendant's conviction.
a. The murder.
We recite the facts in the record, reserving [23 N.E.3d 79] certain details for our analysis of the issues raised on appeal. See Commonwealth v. Raposa, 440 Mass. 684, 686, 801 N.E.2d 789 (2004). On the evening of March 27, 2006, the victim, Francillon Dabady, and Mackenson Mathurin went to a night club in Cambridge. All three were acquainted with the defendant: the victim was the defendant's former roommate; Dabady had met the defendant at the victim's home; and Mathurin attended grade school with the defendant and, on the night of the shooting, conversed with him inside the club. As the club closed, the victim, Dabady, and Mathurin, along with many other patrons, filed out onto Massachusetts Avenue.
On leaving the club, Dabady and Mathurin observed a man (whom they later identified as the defendant), holding a semiautomatic firearm, cross the street toward the crowd, aim the weapon at the victim, and fire multiple shots. One bullet struck the victim and sent him to the ground. Then, standing almost above the victim, the man shot him a second time before fleeing in the direction of a nearby video store. The Cambridge police were promptly notified of the shooting and, within one minute, Officer Mark McHale arrived at the night club.
Officer McHale was approached by a crowd of people shouting descriptions of the shooter. From the noise, Officer McHale dis-
tilled a description of a black male wearing a white T-shirt and baseball hat, which he then broadcast across Cambridge police radio. Sergeant John Gardner heard the broadcast and, within minutes, observed a black male fitting the description running down Essex Street, a few blocks away from the site of the shooting. Less than four minutes after being alerted to the shooting, Cambridge police officers found the defendant, clad in a white T-shirt and white baseball hat with dark pinstripes, crouching among the shrubs of a yard on Essex Street.
Meanwhile, Officer McHale was speaking with a witness named Daniel Jacobs. Jacobs claimed to have had a clear view of the shooter. After learning that a potential suspect had been apprehended, Officer McHale asked Jacobs if he would be willing to observe a person who had been stopped in the area. Jacobs agreed, confirmed his understanding of the precautionary advisements given by Officer McHale, and traveled to Essex Street in Officer McHale's police cruiser. Although Officer McHale observed alcohol on Jacobs's breath, he determined that Jacobs was capable of providing an accurate statement and performing a reliable identification. On viewing the defendant, who was surrounded by police officers but did not appear to be handcuffed, Jacobs stated, " That's the guy."
As these events unfolded, other Cambridge police officers scoured the area in search of other evidence of the murder. In the parking lot behind the video store, which was located between the night club and the yard where the defendant was apprehended, the police found a multicolored button-up shirt and a light brown leather jacket with a fur collar and fur cuffs. One of the officers broadcast a description of the jacket over the police radio. The defendant overheard the broadcast and stated, " That's my jacket."
As the police secured the scene around the jacket, two other witnesses to the shooting, Sonny Bhatia and Fabio Mendes, were walking to their automobile, which was parked in the same parking lot. Bhatia and Mendes saw the jacket, and each identified it as the one worn by the shooter. David Vicini, the doorman at a nearby restaurant, reported seeing a man wearing a light brown jacket with a fur collar standing over the victim, shooting. Other [23 N.E.3d 80] witnesses variously recalled seeing a brown leather jacket, a black leather jacket, a " bubble" jacket, or no jacket at all. Despite these inconsistencies, however, most of the descriptions were generally consistent with the defendant and the articles of clothing found in the parking lot. The victim was transported to
a hospital, where he died from his wounds at approximately 3 a.m. The defendant was transported to the Cambridge police station, where his hands were swabbed for gunshot primer residue testing. Cambridge police officers questioned the defendant regarding the whereabouts of the gun, to which he responded, " I don't think you guys gonna find any guns." The defendant's booking photograph was placed in photographic arrays to be shown to several of the witnesses to the shooting.
On the same morning, Cambridge police arranged for Detective Daniel McNeil, a so-called " blind presenter," to conduct a photographic array procedure with Dabady. Dabady explained that an array was unnecessary, as he already knew the shooter. Nonetheless, Detective McNeil read to Dabady a list of advisements from the Cambridge police photographic identification checklist and presented him with a sequential array. Dabady identified the defendant as the shooter, which McNeil recorded on the checklist.
McNeil then conducted photographic array procedures with Mendes and Bhatia. Although each selected the defendant's photograph, neither was able to express confidence that the person in the photograph was the shooter. Approximately one month later, a different blind presenter, Detective Donald Mahoney, conducted a sequential photographic array procedure with Mathurin, who, along with Dabady, had been with the victim on the night of the shooting. Mahoney recited each of the advisements and Mathurin identified the defendant as the shooter. In addition, Cambridge police presented the defendant's sister, Shelly Bresilla, with a photograph of the jacket found in the parking lot. She recognized the jacket and the cellular telephone contained in one of its pockets as gifts she had given to the defendant.
b. The motions to suppress.
Prior to trial, the defendant moved to suppress the showup identification by Jacobs, the photographic identifications by Dabady and Mathurin, and the jacket identifications made by Bhatia and Shelly Bresilla. A three-day evidentiary hearing was held on the motions. At some point during the course of the hearing, Detective Mahoney approached Bhatia in the hallway and showed him some photographs from the photographic array procedure in which Bhatia previously participated. Although both witnesses were sequestered, Detective Mahoney asked Bhatia if he remembered which photograph he had selected and, when Bhatia responded in the negative, Detective Mahoney pointed to a photograph of the defendant and informed Bhatia that he had selected that photograph.
The motion judge sanctioned the Commonwealth by precluding Bhatia from identifying the defendant at trial either directly or through a photographic array, while preserving the defendant's right to elicit before the jury Bhatia's inability to positively identify the defendant's photograph. The motion judge also suggested that a midtrial voir dire be conducted to ensure that Bhatia would not make a surprise identification of the defendant during his testimony.
With respect to the merits of the motion to suppress, the judge found no error in the showup procedure used with Jacobs given the ongoing threat to public safety, the use of cautionary advisements by Detective [23 N.E.3d 81] McHale, Jacobs's professed ability to identify the shooter, and the fact that the showup occurred within one hour of the shooting. The judge also determined that the defendant failed to meet his burden of establishing that the photographic arrays shown to Dabady and Mathurin were unnecessarily suggestive, noting that the police had used blind presenters, that precautionary advisements had been given, and that both witnesses were already familiar with the defendant. The judge likewise rejected the defendant's challenge of the jacket identifications, concluding that the circumstances did not render this the " extreme case" alluded to in Commonwealth v. Simmons, 383 Mass. 46, 51, 417 N.E.2d 1193 (1981), S. C., 392 Mass. 45, 466 N.E.2d 85, cert. denied, 469 U.S. 861, 105 S.Ct. 196, 83 L.Ed.2d 128 (1984) (in " extreme case," suggestiveness of identification procedure of inanimate objects might rise to denial of due process).
c. The trial.
The Commonwealth presented substantial evidence of the defendant's culpability, including the showup identification by Jacobs, the photographic identifications by Dabady and Mathurin, and the jacket identifications made by Mendes and Bhatia in the video store parking lot. The Commonwealth's expert witnesses opined that the jacket tested positive for the defendant's deoxyribonucleic acid (DNA), that both of the defendant's hands tested positive for gunshot residue primer, and that the ammunition recovered from the scene was consistent with having been fired from a Luger semiautomatic pistol. The jury also heard the testimony of Jacobs, who was standing within feet of the victim; Dabady and Mathurin, who knew the defendant and indentified him as the shooter; Bhatia, ...