Argued: January 9, 2015.
Indictments found and returned in the Superior Court Department on March 19, 1998.
The cases were tried before James D. McDaniel, Jr., J., and a supplemental motion for a new trial, filed on December 17, 2009, was heard by Thomas E. Connolly, J.
Eileen D. Agnes for the defendant.
Teresa K. Anderson, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Spina, Cordy, Botsford, & Duffly, JJ.
[30 N.E.3d 79] Spina, J.
In June of 1999, a Superior Court jury convicted the defendant, Jeffrey Vaughn, of murder in the first degree for the shooting of Robert Mason in a schoolyard in the [30 N.E.3d 80] Dorchester section of Boston on the night of November 29, 1997. The defendant now brings this direct appeal as well as an appeal of the denial of his motion for a new trial. Represented by new counsel on appeal, he claims the judge considering his motion for a new trial improperly denied it without an evidentiary hearing, that the Commonwealth failed to disclose exculpatory evidence timely, that the prosecutor knowingly solicited false testimony, and that his trial counsel was ineffective. The defendant also requests that we exercise our power pursuant to G. L. c. 278, § 33E, to order a new trial or direct the entry of a verdict of a lesser degree of guilt. We affirm the conviction and the order denying the defendant's motion for a new trial, and decline to exercise our power under G. L. c. 278, § 33E.
1. Facts and background.
We recite the facts the jury could have found, reserving further details for discussion of the specific issues raised. On the morning of November 30, 1997, police responded to a report of a dead body in a schoolyard in the
Dorchester section of Boston. There, they found the victim, later identified as Robert Mason. The victim had been shot five times, twice in the head and once in the chest and each arm, by a .40 caliber firearm. Later that day, John Hyppolite, the victim's close friend, was arrested pursuant to a warrant issued in an unrelated matter. As a result of a conversation with Hyppolite, the following day, December 1, 1997, police sought a warrant to arrest the defendant, charging him with the murder of the victim.
The defendant was arrested later that night. During his arrest, the defendant refused to answer the door of the apartment where police found him attempting to escape out the back. On December 30, 1997, while awaiting indictment in custody, the defendant saw Troy Meade, a friend and the brother of a woman with whom the defendant had a child, in the holding area of the booking room in the Suffolk County jail. Meade engaged the defendant in a conversation about the murder. The defendant admitted killing the victim because the victim had once held a brother of the defendant, Walter " Wally" Vaughn, upside down over a second-story balcony at a party. That brother had since been murdered. The defendant also stated that it had been his intention to kill Hyppolite because he had witnessed the murder but the defendant's other brother, Jamal, was in the way. The weapon the defendant said he used was a .40 caliber firearm. Meade had seen the defendant with a .40 caliber pistol several weeks before the murder.
The defendant's statement to Meade referenced a series of escalating events in a conflict between, on one hand, the defendant and his brothers and, on the other, two brothers by the name of Tim and Eric Mathis. The defendant suspected Tim Mathis of killing the defendant's brother, Wally Vaughn, while the defendant was incarcerated.
In addition to the balcony incident with Wally Vaughn, the defendant further knew that, while the defendant had been in prison on an unrelated matter, the victim had been the driver in a drive-by shooting targeting Meade, on April 30, 1997. The Mathis brothers were passengers in that vehicle as was Hyppolite. In a telephone conversation made from his place of incarceration, the defendant promised Meade that he would " take care" of the perpetrators, including the victim. This conversation took place while Meade was at the [30 N.E.3d 81] house of Jeff Pruitt, another friend of the defendant.
The defendant was released from prison in early November, 1997. Shortly after his release, the defendant attended a party;
watched a movie, rewinding and replaying certain portions of the videotape constantly; and stated that he would seek revenge on unnamed parties. After his release, he also reiterated to Hyppolite this desire for revenge, specifically naming Tim Mathis.
On the night of November 29, 1997, Jamal Vaughn and Hyppolite met the victim at his house to go socializing. Later in the evening, they were joined by the defendant. Eventually the four of them arrived at a nearby schoolyard where it was common to drink alcohol. The usual practice was to loiter on the stairs to keep watch for police surveillance. On this night, however, the defendant suggested the group move to the side of the school. The group moved.
There the conversation between the defendant and the victim quickly turned to the defendant's deceased brother Wally and encompassed the occasion on which the victim had held Wally upside down over a second-story balcony. The defendant grew emotional during this discussion and displayed a handgun. At the sight of the weapon, the victim became visibly nervous and asked the defendant to be careful. Hyppolite intervened and attempted to defuse the situation. Seemingly mollified, the defendant put the gun away. Hyppolite turned away from the pair to relieve himself and heard a gunshot. He turned around in reaction and saw the victim falling to the ground with the defendant standing over him with the gun in his hand. He saw the defendant shoot the victim several more times after he had fallen to the ground, including twice in the head.
The group fled. Jamal Vaughn ran to a local bar and then to meet his older brother Dwayne Vaughn at their sister's house. Hyppolite went in another direction, and the defendant soon joined him. The defendant warned him not to tell others of the events of the evening. Hyppolite insisted that the defendant had taken his retribution against the wrong person. They continued on to Hyppolite's house, where the defendant persistently asked to use the telephone over Hyppolite's initial refusal. Fearing the defendant, who still had the gun, Hyppolite relented. The defendant called his older brother Dwayne.
Wishing to vacate the area, Hyppolite called for a ride from a friend. The defendant, meanwhile, stated that more retribution was to come. Hyppolite's friend arrived to give him the requested ride. The defendant asked if they could bring him to his brother Dwayne's house. The driver agreed. As they drove, the defendant saw two sisters with whom he was familiar: Sherelle and Jeanine Jackson. Jeanine was a former girl friend of the defendant.
The defendant requested the driver pull over. The defendant took Jeanine Jackson out to the back of a house for several minutes. Sherelle Jackson overheard part of the conversation between her sister and the defendant in which the defendant told Sherelle that something would be found in the schoolyard. After waiting a while, Hyppolite went to retrieve the defendant at the request of the driver.
The defendant returned to the car, this time with the Jackson sisters. The group, now five in number, drove to the residence of the defendant's sister where they met Dwayne Vaughn. There, the defendant and Jeanine Jackson got out of the car. Hyppolite, the driver, and Sherelle Jackson waited in the car. Jeanine returned to the car a short while later, soon followed [30 N.E.3d 82] by the defendant. After one more stop, the driver and Hyppolite left the defendant and the Jackson sisters at a residence. Before parting, the defendant repeatedly insisted that Hyppolite speak to Jamal the next day.
At this location, the defendant and the Jackson sisters entered an apartment belonging to one of Sherelle's friends. There, Sherelle was privy to a further conversation between the defendant and Jeanine in the kitchen. The defendant said he had " eight more to go." Sherelle's memory of this conversation consisted of portions she had overheard mixed with details her sister had later supplied.
The next day, the defendant called Hyppolite. The defendant warned Hyppolite to speak to " nobody" about the events of the previous night and, if asked, to say that the group had actually been at Pruitt's house the night before. Jamal Vaughn went to Hyppolite's house after this conversation. Hyppolite confronted Jamal about the killing. Jamal responded only that the victim had gotten what he deserved. Later that evening, Boston police officers arrested Hyppolite.
At trial, the defendant relied upon a misidentification defense. Hyppolite testified that the defendant was the shooter. After initially stating an unidentified third party was present (contradicting his testimony before the grand jury in this case), Jamal Vaughn eventually testified that Hyppolite in fact had pulled the trigger.
The defendant called as a witness Keith Pomare, a friend. Pomare testified that on the night in question he had approached the schoolyard looking for friends and saw the victim, Hyppolite, the defendant, and Jamal there. The group was " bebopping and rapping" and " ...