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Commonwealth v. Allen

Supreme Judicial Court of Massachusetts

April 20, 2016

James Allen

         Argued December 10, 2015.

          Suffolk. Indictments found and returned in the Superior Court Department on February 1, 2011.

         The cases were tried before Patrick F. Brady, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          Matthew V. Soares for the defendant.

          Amanda Teo, Assistant District Attorney ( Jennifer J. Hickman, Assistant District Attorney, with her) for the Commonwealth.

          Levi W. Swank, of the District of Columbia, & David A.F. Lewis & Stephen D. Poss, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

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


          [48 N.E.3d 429] Cordy, J.

          On March 21, 2012, a jury convicted the defendant,

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James Allen, of murder in the second degree,[1] and of carrying a firearm without a license, possession of ammunition without a firearms identification card, and possession of a large capacity firearm feeding device without a license.[2] At trial, his defense was that he was justified in using deadly force because he was coming to defense of a friend (Shawn Buchanan) who was being threatened with deadly force by the victim, Senai Williams.

         The defendant timely appealed from his convictions, and we granted his application for direct appellate review. On appeal, he [48 N.E.3d 430] raises several claims. First, he argues that the trial judge's instruction to the jury on defense of another was incorrect because it improperly suggested that the defendant may have had a duty to retreat, and because it negated the possibility of a finding of so-called excessive force manslaughter by instructing that the defendant was required to avail himself of available alternatives before employing deadly force and that if the Commonwealth proved that the defendant used excessive force then it had proved that he did not act in lawful defense of another. The defendant also claims error based on misstatements by the prosecutor in closing argument; the admission of irrelevant and prejudicial testimony; insufficient evidence supporting the firearms convictions; and constitutional violations in connection with the firearm indictments. We conclude that portions of the jury instructions concerning excessive force manslaughter were erroneous and prejudicial. Accordingly, we reverse the defendant's conviction of murder in the second degree and remand the case for a new trial on that charge. We affirm the defendant's remaining convictions.[3]

         1. Background.

         We summarize the evidence. On November 18, 2010, the defendant shot and killed the victim. The shooting arose from a dispute between two groups of neighbors and their associates residing at 20 and 23 Homestead Street in the Roxbury section of Boston. The 20 Homestead Street group included the victim; his girl friend, Shaquice Herring; and her mother, brothers, and cousins. The 23 Homestead Street group included the defendant; his friend, Shawn " Lucky" Buchanan; Buchanan's mother; his girl friend; and his half-brother, Rellindo Stephens.

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          The events that culminated in the shooting began that afternoon, when Stephens and some friends were looking for a place to smoke marijuana. Because his mother was home, Stephens decided to smoke in the hallway of 20 Homestead Street. Herring's mother, who had received complaints from her landlord about marijuana smoke in the hallway, told the victim and two others in their group to go downstairs to tell Stephens and his friends they could not smoke in the hallway. Following a tense exchange of words, the victim grabbed Stephens and forced him out the door.

         As Stephens crossed the street to return to his house, he saw Herring in her window and called her a bitch. Angered, she went outside to confront him. The victim eventually separated the two, but not before Herring slapped and punched Stephens in the face.

         Stephens called his brother, Buchanan, about the incident. Buchanan, accompanied by the defendant, went to Homestead Street. By the time they arrived, night had fallen and the street lights were on. When Buchanan got to Homestead, he beckoned to Herring and the victim to come down to the street. Eventually, Stephens joined the three, who were speaking calmly with one another. The conversation became more heated as they began to discuss the earlier incident with Stephens. Someone asked if the victim had hit Stephens, and Herring told Buchanan that she, and not the victim, had hit him. The victim attempted to demonstrate the manner in which he had made contact with Stephens in the hallway; Stephens, however, was still upset and demanded that the [48 N.E.3d 431] victim take his hands off of him. Likewise, Buchanan told the victim he did not need to touch Stephens to explain. The defendant, who was standing on the porch of 20 Homestead, said to Buchanan, " Handle your business, Luck." At this time, the victim moved to the side of Herring and then reached over her, trying to punch Buchanan.

         A number of people had converged on their porches and sidewalk to watch the escalating confrontation, including other members of the two groups. A neighbor living at 21 Homestead also watched the confrontation from her porch. The defendant and others suggested that the victim and Buchanan have a " fair one," a one-on-one fist fight.

         While the defendant stood on the front porch of 20 Homestead, Buchanan and the victim began to fight. They repeatedly swung at each other without making contact. At one point, the two men were getting close to an automobile belonging to the neighbor's father, which was parked on the street; at her request, they moved

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away from the vehicle. It appeared to the neighbor that " they ... didn't really want to fight." Around this time, the defendant came down the front steps of 20 Homestead into the street.

         The testimony about what happened next, in the moments prior to the shooting, is in conflict. Herring testified that both Buchanan and the victim pulled out knives, and that she made the victim walk away from Buchanan at that point. She also testified that the latch on the victim's knife was broken, so that the blade would not stand up straight. Others testified that Buchanan pulled out a knife and then the victim pulled out a knife. Still another witness testified that the victim never had a chance to get his knife out of his pocket.

         Stephens, however, testified that Buchanan had been holding a cellular telephone when the fight broke out and that when he went to put it in his pocket, the victim asked if Buchanan was " reaching." He further testified that the victim began " jumping at [Buchanan], like breasting," that he had a knife in his hand, and that Buchanan began backing away from the victim. Another witness testified that she saw a knife in the victim's hand, although Buchanan's back was to her so she could not see if he was holding anything.

         The testimony concerning the distance between Buchanan and the victim is also in conflict, with some witnesses testifying the two men were a little more than an arm's length apart and another testifying that they were at least one automobile length apart. According to one witness, as the victim backed away from Buchanan, the defendant came around a vehicle in a creeping fashion, pulled a gun, and fired it over Buchanan's shoulder. The victim fell to the ground. Some witnesses heard the defendant say something like, " You don't bring a knife to a gunfight." Herring heard the defendant say this before he fired the gun; the others heard him say it after the gun had been fired.

         The victim got up and ran to the rear of 20 Homestead, having been shot once in the right lower back.[4] He was taken to the hospital, where he was pronounced dead. The defendant fled toward Walnut Avenue, while Buchanan ran into 23 Homestead.

         When the police arrived, Herring screamed, " [H]urry up, hurry up, he's dying," and ran to the back of the building. Shortly thereafter, based on a description of the shooter, officers stopped

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the defendant [48 N.E.3d 432] near the Jackson Square subway station. The defendant told the officers that he had just gotten off the bus, that he was coming from his girl friend's apartment in Somerville, and that he was going to see his sister.

         The defendant was subsequently arrested. The K-9 unit searched 23 Homestead the next day and recovered the firearm used in the shooting, concealed behind a box inside a small storage area in the basement.

         The police also recovered the victim's knife. A Boston police department criminologist testified that the knife's blade did not stay up because the knife was missing its " innards." She also testified that she did not know if the knife worked before she examined it.

         2. Jury instructions.

         The defendant argues that the judge's instruction on defense of another (1) erroneously conflated principles of self-defense and defense of another by suggesting that the defendant had a duty to retreat; and (2) improperly negated the possibility of a finding of so-called excessive force manslaughter by stating, among other things, that the defendant was required to avail himself of available alternatives before employing deadly force.[5],[6] The ambiguous, confusing, [48 N.E.3d 433] and contradictory

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nature of the instructions, argues the defendant, warrants reversal of his conviction. We agree, although for somewhat different reasons from those proffered by the defendant.

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          Because the defendant raised a timely objection to the judge's instruction to the jury, we review his claim for prejudicial error. Commonwealth v. Kelly, 470 Mass. 682, 687, 25 N.E.3d 288 (2015). We determine " whether the instructions were legally erroneous, and (if so) whether the error was prejudicial." Id. at 688, quoting Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306, 310, 909 N.E.2d 523 (2009). We will not find prejudice where an error " did not influence the jury, or had but very slight effect . ... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, [then] it is impossible to conclude that substantial rights were not affected." Kelly, 470 Mass. at 688, quoting Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994). We evaluate jury instructions " as a whole, looking for the interpretation a reasonable juror ...

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