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Commonwealth v. Celester

Supreme Judicial Court of Massachusetts, Plymouth

February 10, 2016

Commonwealth
v.
Jermaine Celester

         Argued October 9, 2015.

Page 554

          Indictments found and returned in the Superior Court Department on April 19, 1994.

         A pretrial motion to suppress evidence was heard by Robert L. Steadman, J.; the cases were tried before Gordon L. Doerfer, J.; a motion for a new trial, filed on November 2, 2005, was heard by Robert C. Rufo, J.; and a second motion for a new trial, filed on June 20, 2013, was considered by Thomas F. McGuire, Jr., J.

          Chauncey B. Wood for the defendant.

          Mary E. Lee, Assistant District Attorney, for the Commonwealth.

          Kirsten V. Mayer, Maria M. Carboni, David J. Derusha, Mark S. Gaioni, & David Lewis, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

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

          OPINION

          [45 N.E.3d 542] Botsford, J.

          In September, 1995, a Plymouth County jury convicted the defendant, Jermaine Celester, of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty and of armed assault with intent to murder. The victims, Wakime Woods and Derek Gibbs, were shot while walking with the defendant on the night of February 18, 1994. Woods died as a result of his injuries; Gibbs lived, but was rendered a quadriplegic. On appeal, the defendant challenges the admission in evidence of the decedent's out-of-court statement about who had shot him; the admission of the defendant's statement to police; the prosecutor's conduct, and in particular her closing argument; and the closure of the court room during jury empanelment. For the reasons discussed in this opinion, we affirm the defendant's convictions, but vacate the order denying his first motion for a new trial and remand the case to the Superior Court for an evidentiary hearing on that motion.

          Background.

          From the evidence presented at trial, the jury could have found the following facts.[1] On the evening of February 18, 1994, Wakime Woods and Derek Gibbs were shot near the corner of Green and Newbury Streets in Brockton. The

Page 555

Commonwealth's theory of the case was that the defendant shot both victims because he was seeking revenge for the murder, approximately four months earlier, of his good friend Robert Moses, and believed that Gibbs was refusing to reveal the identity of the person who had murdered Moses.[2]

          [45 N.E.3d 543] On the day Gibbs and Woods were shot, Gibbs, Woods, and their friend Demetrious Lynch had been at the Boys & Girls Club in Brockton until 6 p.m. Afterward, they went to a house across the street from the club, where they smoked marijuana and then started walking to Gibbs's house. As the three were walking, two young women drove up in an automobile, and Gibbs and Woods spoke to them. Another vehicle with young women soon arrived, and one of its occupants began to argue with one of the young women in the first vehicle. Both automobiles then left. When Gibbs, Woods, and Lynch reached Gibbs's house, Lynch continued on to his own house to change his clothes. Gibbs and Woods went into Gibbs's house. Thereafter, Gibbs and Woods went outside a few times to see if Lynch and another friend had arrived. Gibbs at one point was standing alone on the sidewalk in front of his house, and the defendant approached from the side of Gibbs's house through a small alleyway between a store and the house; the defendant " kind of surprised [Gibbs]." The defendant was wearing a black jacket and dark clothes. He mentioned that he wanted to go see another friend, Larry Brown (see note 2, supra ), and Gibbs agreed. Woods at that point walked out of Gibbs's

Page 556

house. The defendant did not know Woods; the two had never met. Gibbs introduced them: " This is Bear,[3] ... this is Wakime."

         The three started off toward Brown's house, walking along Green Street. As they were walking, Gibbs's father pulled up in a van and told them to get out of the street, and the defendant " slipped off to the side," away from the van. After Gibbs's father drove off, the three resumed walking, with Gibbs in the middle, Woods on the left, and the defendant on the right side of Gibbs. Suddenly the defendant was no longer in Gibbs's view; " it seemed like [the defendant] just stopped short." Immediately thereafter, Gibbs heard a " pop" -- a gunshot -- and he fell to the ground; he had been shot.[4]

         Marlene Scott, who was at her mother's house on Newbury Street, heard gunshots in rapid succession and looked out the window to see a man in dark clothing and a hood running down Green Street toward Newbury Street. Scott jumped back from the window and then went outside. She recognized Gibbs, who was lying in the street, and began to scream. She did not immediately notice anyone else, but then heard a voice from behind a snowbank calling for help; it was Woods. Scott ran over to Woods and asked, " Who shot you? Who shot you?" to which Woods replied, " The kid I was with." Scott followed up, " Do you know him?" and Woods replied, " No."

         Sergeant Kenneth LaGrice of the Brockton police department arrived on the scene very soon after the shooting. He first went over to Gibbs, who was lying unconscious in the center of Green Street; he observed a large pool of blood around Gibbs's head and several shell casings in the area of Gibbs's body. Soon after he arrived, LaGrice called for ambulances and medical assistance, and then heard Woods calling for help. He found Woods lying at the base of a snow bank with a tall, thin, African-American woman nearby -- Marlene Scott, whom he knew. LaGrice asked Woods who had shot him, and Woods initially responded that he did not know, but [45 N.E.3d 544] when asked again, said, " I don't know his name." Woods was " very excited, very scared," and kept repeating that he had been shot and needed help.

         Woods was taken by ambulance to the emergency department of Cardinal Cushing Hospital. He was awake and following

Page 557

commands when he arrived, but also was in respiratory distress, having suffered multiple gunshot wounds, including one that had pierced his lung. He was able to speak in short, coherent sentences for a brief period of time, but was deteriorating quickly. Dr. David Mudd, who first treated Woods, asked Woods what had happened to him. Dr. Mudd remembered Woods saying something to the effect of " he had been smoking with some friends and somebody came up to him and shot him." Woods did not say who had shot him. Because the hospital was not able to treat Woods's injuries fully, he was taken by helicopter to Brigham and Women's Hospital, where he died the next morning.

         Gibbs, meanwhile, was taken to Brockton Hospital and then transported to Boston City Hospital. He had suffered a bullet wound to the neck. The bullet entered the right side of Gibbs's jaw and exited through the back left side of his neck, tracking from front to back in a slightly downward direction; it fractured Gibbs's second and third vertebrae and severed his spinal cord at that location, instantly paralyzing him from the neck down.

         In the early morning hours of February 20, 1994, while Gibbs was still in the hospital, Brockton police Detective Clifford Hunt showed Gibbs a photographic array. Gibbs identified the defendant,[5] and an arrest warrant for murder (murder warrant) for the defendant was issued. The defendant learned that the police were looking for him, and at approximately 10 a.m. on February 20, the defendant went to the Brockton police station, accompanied by an attorney, James Gilden. With Gilden present, the defendant was given Miranda warnings, signed a form acknowledging that he understood his rights, agreed to speak to the police, and gave a statement, predominantly in narrative form, in which he described meeting Gibbs and Woods (whom he said he did not previously know) on February 18 outside Gibbs's house, walking with Gibbs and Woods toward Brown's house, and encountering young women who had arrived in two different automobiles. As the defendant, Gibbs, and Woods approached Newbury Street, the defendant noticed an old Cougar automobile pulled over at the corner of Newbury and Green Streets, and saw the passenger in the vehicle, an African-American man who looked like a " body builder," get out, after which Gibbs said, " I feel like something is

Page 558

going to happen tonight." The defendant then heard a gunshot and saw Gibbs fall. The defendant did not see anyone in front of them, but thought he saw an automobile up on the hill in the distance with its lights on. He started running through back yards to get to his house; while running, he heard two more shots and an automobile take off. The defendant did not call police and did not go outside when he heard police arrive because he did not want to be a witness.

         State Trooper Michael Robert Arnold investigated the scene of the shooting and found four spent cartridge casings clustered together and one spent projectile. Another spent projectile was recovered from Woods's body. Arnold opined that [45 N.E.3d 545] the four cartridge casings were fired from the same weapon and that the two projectiles were fired from the same weapon. He further opined that the locations of the casings and projectile at the scene and the results of ballistics testing were consistent with one gun being used, although he could not scientifically connect the projectiles and the casings to one gun. Arnold found no damage to the projectiles that would suggest that they had ricocheted off any solid objects before striking the two victims. The casings, which were from a nine millimeter weapon, would travel only a distance of fifteen feet or usually less when fired, meaning that the shooter was in close proximity to where the casings were found. Testing on the victims' clothes revealed no gunshot residue, suggesting that the muzzle of the weapon used was further than three feet from the victims at the time it was fired.

         Woods had suffered three, possibly four gunshot wounds, three of which were entrance wounds into his back and one of which was an entrance wound into his left thigh. The entrance wound on Woods's thigh was atypical in appearance. The entrance point was irregularly round with irregular scraping around it, which could have been caused by the bullet passing through another object or ricocheting off something before hitting the thigh. In the opinion of Dr. James Weiner, the medical examiner who performed the autopsy, one of the bullets likely entered Woods's back and exited through the abdomen, then " reentered the left groin area and this [was] one continuous wound track if the left leg was raised away from the body and lifted up."

         The defendant's statement to the police was introduced in evidence as part of the Commonwealth's case. The defense theory at trial was that while the defendant was walking with Gibbs and Woods on February 18, 1994, an unknown assailant or assailants

Page 559

had appeared suddenly and shot Woods and Gibbs, causing the defendant immediately to flee toward his own house. The defendant did not testify, but called Officer Mark Reardon of the Brockton police as a witness. Reardon testified that on February 18, he received a police radio transmission about a shooting on Green Street and an alert to be on the lookout for a dark colored, four-door vehicle with tinted windows that had fled the scene. Shortly thereafter, he observed a vehicle with three African-American male occupants who appeared uneasy as a result of Reardon's observation. The vehicle was a red, two-door Ford Tempo. Over the police radio, Reardon described the vehicle; he was told that the vehicle did not appear to be the one that fled the scene of the shooting, but a request was made to stop the vehicle because it was wanted in connection with an incident that had occurred earlier in the evening. Reardon stopped the vehicle on Eagle Avenue and ordered the occupants out; the operator and one occupant ran from the scene. Reardon held the other occupant at the scene. He then searched the vehicle but did not find a gun or any casings in it. The one occupant who had remained was arrested for several motor vehicle offenses. The other occupants of the vehicle ultimately were identified.[6] The woman who had reported seeing a vehicle fleeing the scene of the shooting, Corrina Defrancesco, was taken to Eagle Avenue by another Brockton police officer, Michael Mather. She observed the vehicle that Reardon had stopped, and then went to the Brockton [45 N.E.3d 546] police station to give a statement or make a report.[7]

          Procedural history.

          On April 19, 1994, a grand jury returned indictments charging the defendant with murder in the first degree and armed assault with intent to murder. The defendant filed a motion to suppress his statements on voluntariness grounds as well as ineffective assistance of his first counsel, Gilden. An evidentiary hearing was held on March 28, 1995, and the motion was denied by a Superior Court judge (first motion judge). A different Superior Court judge (trial judge) presided over the defendant's

Page 560

jury trial that took place in September, 1995. Following his convictions, the defendant filed an appeal and then moved to stay the appeal pending a motion for a new trial.

          The defendant filed his first motion for a new trial in November, 2005.[8] He claimed, among other issues, that his statement to police was admitted improperly because of the ineffective assistance provided by the defendant's first attorney, Gilden; that the Commonwealth failed to give proper notice of expert testimony; that the defendant's trial counsel was ineffective; that Woods's statement, relied upon to identify the defendant as the shooter, was erroneously admitted as an excited utterance; and that the Commonwealth failed to produce a critical witness, Defrancesco, thus depriving the defendant of a substantial defense. After discovery, a nonevidentiary hearing on the motion was held in April, 2008, before a different Superior Court judge (second motion judge), the trial judge being no longer available. The second motion judge denied the motion for a new trial in October, 2009, and the defendant's appeal from that denial was consolidated with his direct appeal. In 2013, the defendant filed a second motion for a new trial on the ground that the court room was improperly closed during jury empanelment; yet another Superior Court judge (third motion judge) denied this motion without a hearing in November, 2014. The defendant's appeal from that denial also was consolidated with his direct appeal.

          Discussion.

          The issues the defendant raises in this appeal are ones that he raised in his two motions for a new trial. A motion for a new trial that is considered in conjunction with a defendant's direct appeal from a conviction of murder in the first degree is reviewed pursuant to G. L. c. 278, § 33E. See, e.g., Commonwealth v. Morgan, 449 Mass. 343, 353, 868 N.E.2d 99 (2007).

         1. Admission of Woods's statement.

         The Commonwealth filed a motion in limine before trial to admit as a spontaneous utterance or dying declaration Woods's statement to Marlene Scott that " the kid [he] was with" shot him. At a hearing on the motion, defense counsel did not object to its being admitted as a spontaneous utterance. The judge allowed the statement to come in without specifically deciding [45 N.E.3d 547] whether it qualified as a spontaneous utterance because of defense counsel's concession that it did.

Page 561

          The defendant now argues on appeal that Woods's statement to Scott was so unreliable that its admission violated his due process rights under the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. He also contends that Woods's statement to Scott was testimonial, as the term is described in Crawford v. Washington, 541 U.S. 36, 51-53, 124 S.Ct. 1354, 158 L.Ed.2d 177 & n.4 (2004),[9] and therefore admitted in violation of his right to confrontation under the Sixth Amendment to the United States Constitution.

         a. Reliability of Scott's testimony.

         The defendant challenges the existence of sufficiently reliable evidence that Scott in fact spoke to Woods on February 18, 1994, to permit her to testify at trial to Woods's alleged statement about who shot him. He asserts that the trial judge, in his role as gatekeeper, should have prevented the evidence from reaching the jury because of its unreliability. As support, the defendant notes, first, that Sergeant LaGrice arrived moments after Woods's alleged statement to Scott and asked Woods who had shot him, to which Woods replied that he did not know; second, that Woods also told Dr. Mudd, who initially treated him at the hospital, that he did not know who shot him; and finally, that LaGrice testified that only one civilian was at the scene of the crime when he arrived and he ultimately identified that person as Defrancesco, not Scott, thereby suggesting that Scott was not at the scene.

         The defendant's argument fails. Scott testified without equivocation that on the night of the shootings, she encountered Woods lying behind the snowbank and talked to him while waiting for the police to arrive. Although the jury certainly were not required to believe Scott, nothing in the record suggests that she was incompetent to testify as a trial witness, or that she may have been impaired in any way on the date of the shootings. Cf. Demoulas v. Demoulas, 428 Mass. 555, 563-564, 703 N.E.2d 1149 (1998). Moreover, contrary to the defense's argument, Scott's testimony was not contradicted at all by the testimony of LaGrice, and only weakly contradicted by Mudd.

         LaGrice testified that Woods stated that he did not know who shot him or, more specifically, did not know the name of the person who shot ...


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