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Commonwealth v. Jessup

Supreme Judicial Court of Massachusetts, Hampden

April 8, 2015

Commonwealth
v.
Anthony Eugene Jessup

Argued December 5, 2014.

Indictments found and returned in the Superior Court Department on July 30, 2010.

A pretrial motion to suppress evidence was heard by Constance M. Sweeney, J., and the cases were tried before Richard J. Carey, J.

Elaine Pourinski for the defendant.

Deborah D. Ahlstrom, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.

OPINION

Page 122

[27 N.E.3d 1233] Hines, J.

In the early morning hours of May 30, 2010, Jonathan Santiago was shot and killed as he sat in his vehicle parked near a Springfield sports bar. The defendant was indicted for the shooting, and a jury convicted him of murder in the first degree on the theory of felony-murder (with attempted armed robbery as the underlying felony), unlawful possession of a firearm, and unlawful possession of a loaded firearm.[1],[2] Represented by new counsel on appeal, he argues (1) error in the denial of his motion to suppress a letter he wrote to [27 N.E.3d 1234] another detainee while he was detained awaiting trial; (2) that a substantial likelihood of a miscarriage of justice arose from the trial judge's failure to instruct on involuntary manslaughter; and (3) that his trial counsel was ineffective in not requesting an instruction on involuntary manslaughter based on wanton or reckless conduct. We affirm the order denying the defendant's motion to suppress as well as the defendant's convictions, and discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E.

Background.

Based on the evidence adduced by the Commonwealth at trial, the jury could have found the following facts. On May 29, 2010, the victim met up with his friends, Andrew Cooke, Marquis Chase, Kasheef Sheppard, Timothy Henderson, and Alan Bamber, outside a sports bar in Springfield where Virgil Vargas was celebrating her twenty-first birthday.[3] Vargas previously had attended high school in Springfield with the victim, the defendant, and James Jamal Stovall, who was tried with the defendant. Stovall was her friend. She spoke with Stovall and the defendant outside the bar about fifteen to twenty minutes before the shooting.[4] According to Vargas, both men wore black hooded sweat-

Page 123

shirts and hats.[5] The defendant's braided hair was visible under his hat. At the time of the shooting, which Vargas estimated had occurred at approximately 12:35 a.m., she had returned inside the bar.

The victim, who was wearing a " long, big chain," was parked in a lot across the street from the bar. He waited by the trunk of his automobile while some of his friends were deciding whether to stay or leave. When the group decided to leave, Cooke approached the victim, who was then seated in the driver's seat of his automobile, to inform him.

The testimony varied about what happened next. Cooke testified that when he reached the victim's automobile, he leaned over to speak with the victim through the front driver's side window, which was partially opened. As Cooke was doing so, he heard a sound and turned back toward it. He saw a light-skinned African-American male,[6] with braids, a hat, and a " pilot's" jacket approach from behind with a gun. The person put the gun into the rear driver's side window, and stated, " Give me some money," or " Give me what you have." [7] Cooke testified that he heard a gunshot, saw the victim's automobile back up and then move forward, and then heard the automobile crash into a fire hydrant. Cooke did not see anyone else at or approaching the victim's automobile.[8] [9]

[27 N.E.3d 1235] Chase testified that just before the shooting, Cooke was speaking to the victim through the driver's side window. Chase heard someone say, " Open the door or I'll kill you." He went to see what was going on and saw a black male with braids[10] behind Cooke

Page 124

with his arm inside the rear driver's side window of the victim's automobile (but did not see a gun). Chase testified that he observed another person, who also was a black male, standing by the passenger's side mirror of the victim's automobile. Chase heard a gunshot and then observed the victim's automobile travel in reverse, eventually crashing into a fire hydrant. Chase testified that after the shooting, the two men who had approached the vehicle took off running across the street.[11]

Another individual who was present, Kashawn Harris, testified that he knew Stovall from high school and was familiar with the defendant. After Harris learned that his friends were going to leave and not attend the party, he went back to his automobile. He heard yelling and turned around. Harris saw a light-skinned black male in dark clothing on the driver's side of the victim's automobile reaching into the automobile and another person in dark clothing running up on the other side of the automobile. He saw the person on the passenger's side of the automobile touch the roof and a door. From the direction of the victim's automobile, he heard a shot, and he then saw the victim's automobile move and crash into a fire hydrant. Harris could not recall whether the victim's automobile moved before the shot was fired, but the two occurrences were close in time. He testified that after the shooting, the two people he had seen by the victim's automobile took off running across the street.

After the shooting, the victim's friends rushed over to his automobile, and Chase and Henderson entered the vehicle and tried to revive him. The scene was chaotic with people running and screaming.

Police and medical response personnel arrived at the scene within minutes. The victim died as the result of a gunshot wound to his back and chest. The medical examiner who conducted the autopsy testified that the victim had an entrance wound in the middle of the left side of his back. The bullet traveled through his left lung, which collapsed; went through his aorta, a major blood vessel; and exited through his upper right chest. The track of the wound was left to right, and back to front. Although the victim suffered other injuries to his face, the gunshot wound caused his death. The medical examiner also opined that the gunshot wound was not one which would have resulted from a gun being fired

Page 125

from within two inches of the victim, so that the wound could not be characterized as a contact or close contact wound.

Police searched the area. One officer found a discharged nine millimeter cartridge casing which he opined likely would have been fired from a semiautomatic weapon. No weapon was ever recovered.

The victim's automobile subsequently was processed for the presence of fingerprints. Fingerprints taken from the front and rear passenger's side windows matched those of Stovall. Fingerprints removed from other areas inside and outside the automobile matched those of Henderson and Chase. There were no fingerprints matching the defendant's.

[27 N.E.3d 1236] Police took statements from various people who were present at the time of the shooting. They brought several people to the police station to view (separately) photographs of possible suspects.

One officer, based on a description that Chase had given of the shooter, generated about 900 photographs of possible suspects through a computer search. The officer asked Chase to view the suspects on the computer, which displayed about twelve photographs per screen. After viewing approximately 300 photographs, Chase selected the defendant's photograph, identifying him as the shooter. At this point, the police learned the defendant's name.

Cooke told Springfield police Sergeant Kevin Devine that the shooter was a light-skinned black male between five feet, four inches and five feet, seven inches; wore a black baseball cap with a " B" on it; wore a dark-colored coat; and had braids to the back of his neck. Cooke testified that he also told police that the shooter had a moustache and some markings on his face. Cooke was not able to positively identify the defendant from any photographs shown to him on a computer screen, but later from a photographic array of eight individuals he selected three photographs depicting individuals who bore a resemblance to the shooter, one of which was a photograph of the defendant. Cooke stated that if he were to see the shooter in person, he would be able to make a positive identification.

On May 31, Cooke returned to look at a photographic array,[12] but was not able to make an identification. Again, he pointed to one photograph (of the defendant), ...


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