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Commonwealth v. Weaver

Supreme Judicial Court of Massachusetts, Suffolk

July 20, 2016

COMMONWEALTH
v.
KENTEL MYRONE WEAVER

          Heard Date January 12, 2016.

         Indictments found and returned in the Superior Court Department on December 5, 2003.

         A pretrial motion to suppress evidence was heard by Geraldine S. Hines, J.; the cases were tried before Stephen E. Neel, J.; and a motion for a new trial, filed on June 1, 2011, was heard by Geraldine S. Hines, J., and Jeffrey A. Locke, J.

          Ruth Greenberg for the defendant.

          John P. Zanini, Assistant District Attorney, for the Commonwealth.

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

          CORDY, J.

         On the evening of August 10, 2003, fifteen year old Germaine Rucker was shot and killed. The defendant, who was sixteen at the time of the shooting, subsequently admitted to committing the murder after prolonged questioning by the police and by his mother.

         Prior to trial, the defendant filed a motion to suppress his statements to the police. That motion was denied following an evidentiary hearing. In 2006, a jury convicted the defendant of murder in the first degree on the theory of deliberate premeditation. He was also convicted of the unlicensed possession of a firearm. In 2011, the defendant filed a motion for a new trial under Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), claiming that he was denied the effective assistance of counsel in two respects: first, that counsel failed to adequately investigate the defendant's claim that his statements to police were coerced because counsel did not consult with a mental health expert or present expert testimony about the voluntariness of those statements; second, that counsel failed to object to the closure of the court room during jury empanelment in violation of the defendant's right to a public trial under the Sixth Amendment to the United States Constitution. The motion was bifurcated, and different judges considered, and ultimately rejected, the claims. The denial of the motion was consolidated with the defendant's direct appeal.

         In his appeal, the defendant asks us to expand our rule requiring the corroboration of extrajudicial statements as it applies to juvenile confessions pursuant to our extraordinary power under G. L. c. 278, § 33E. He also claims error in (1) the denial of his motion to suppress; (2) the denial of his motion for a new trial; and (3) the denial of his motion for a directed verdict on the firearms charge. We affirm the defendant's convictions and decline to grant relief under G. L. c. 278, § 33E.

         1. Facts.

         We recite the facts in the light most favorable to the Commonwealth, reserving certain details for our analysis of the legal issues raised on appeal.

         On August 10, 2003, the victim went to Wendover Street to sell some small jewelry charms to a woman and her children. After the transaction, the woman reentered her home, and the daughter remained outside. The woman heard two gunshots. She stepped back out of the doorway and saw the victim lying in the street on top of his bicycle. The bag in which he had carried the jewelry was gone. The woman went back inside and telephoned 911.

         The daughter testified that, just before the shooting, she noticed a group of males of varying ages gathered at the top of Dudley and Wendover Streets. The group rushed toward the victim, who threw his bag on the ground. They began to fight. An older member of the group, who appeared to be about thirty years of age and was wearing a straw hat, threw the first punch. A younger member of the group, who appeared to be about fifteen years of age and was wearing jean shorts and a white "doo-rag", picked up the victim's bag and ran toward Dudley Street. The daughter ran up the steps toward her front door and heard two gunshots fired in quick succession.

         A third witness, who lived on nearby Humphreys Street, was sitting outside on his second-floor porch when he heard gunshots from the direction of Wendover Street. He then saw a young black man run down Humphreys Street away from Dudley Street. The young man wore dark jeans and was trying to pull off a dark shirt, under which he wore a white t-shirt. The young man stumbled and hopped and pulled a pistol from his pants leg. The pistol had a flat handle and a round silver barrel. As he did so, the baseball cap he was wearing fell off of his head. The cap was collected by the police later that evening.

         The cap was a Detroit Tigers baseball cap, with a stitched white "D" on the front and what appeared to be hand-drawn or painted white "D" letters on the sides. The police had seen the defendant wearing a cap matching the same description when they spoke to him approximately two weeks before the victim was murdered. Deoxyribonucleic acid (DNA) matching the defendant's DNA profile was found on the hatband. An analyst testified that the possible contributors to the DNA profile found on the hatband were one in 40 billion Caucasians, one in 1.6 billion African-Americans, and one in 65 billion Southeastern Hispanics.

         A ballistics expert testified that shell fragments recovered from the victim were consistent with having been fired from a revolver and not a semiautomatic weapon. A revolver has a round barrel, consistent with the description of the handgun in the possession of the fleeing suspect, and does not eject shell casings. No shell casings were recovered from Wendover Street.

         When emergency medical services arrived at the scene, the victim showed no signs of life. He had a bleeding head wound with brain matter visible and a second wound to his lower right back. The medical examiner who performed the autopsy on the victim determined that the cause of death was the two gunshot wounds.

         At trial, there was a great deal of testimony regarding the investigation leading up to the incriminating statements that the defendant made to police, especially his admission, made after discussing the particulars with his mother, that he "shot the [victim]." The defense strategy was to claim that the defendant's statements were involuntary, and the result of coercion by a combination of lengthy questioning first by police and then by his mother, Iris Weaver (Weaver). We leave the details concerning the questioning of the defendant and the resultant incriminating statements to the discussion of the defendant's motion for a new trial, infra, as the trial testimony of the involved police officers and the defendant's mother, viewed in the light most favorable to the Commonwealth, are substantively identical to the testimony given at the evidentiary hearing on the motion.

         At the conclusion of the trial, a humane practice instruction was given to the jury. The judge instructed the jury that the Commonwealth bore the burden of proving beyond a reasonable doubt that the defendant made his statement to the police "voluntarily, freely, and rationally." The judge further stated:

"In order for a statement of a defendant to be voluntary, it must not, in any way, be coerced by physical intimidation or psychological pressure. Under the law of the Commonwealth of Massachusetts, a statement may be coerced not only by law enforcement officials but also by a private citizen. That is, coercion -- You may find that the defendant was coerced. Let me put it this way, coercion may occur not only by law enforcement officials, but in order to be coercion, it may also be caused by a private citizen. A statement made by a defendant is not voluntary if it is psychologically coerced. Therefore, if you find that the statement made by the defendant was coerced by his mother or any other person, you may not consider that statement in reaching a verdict."

         During deliberations, the jury asked for a legal definition of "psychological coercion." After receiving the question, the court adjourned for the day. Neither the judge nor counsel located any case law defining the term before court reconvened the next morning. The judge then repeated his original instructions to the jury, adding that the jurors should "give the term psychological coercion its plain and ordinary meaning as you understand it. But I will tell you that psychological coercion refers to inappropriate or inordinate psychological pressure." The jury subsequently convicted the defendant.

         2. Discussion.

         a. Corroboration rule.

         In Commonwealth v. Forde, 392 Mass. 453, 458 (1984), we announced the corroboration rule, which "requires corroboration that the underlying crime was in fact committed, thus preventing convictions against persons who have confessed to fictitious crimes." Commonwealth v. DiGiambattista, 442 Mass. 423, 430 (2004), citing Forde, supra at 458. In DiGiambattista, we declined to expand the rule to require corroboration that a defendant was the actual perpetrator of the crime, or to require a showing that a confession is reliable under the circumstances in which it was given. DiGiambattista, supra at 431-432. Acknowledging the phenomenon of false confessions, we concluded that the problem is best addressed through the "strict analysis of the circumstances of [an] interrogation as they affect the voluntariness of a defendant's statement." Id. at 432.

         On appeal, the defendant asks us to reconsider expanding the corroboration rule as it applies to juvenile confessions in light of research that juveniles are more likely than adults to confess to crimes they did not commit -- research to which no citation is provided. He argues that his case illustrates the need for an expanded rule requiring additional evidence that the accused perpetrated the crime because although there is no question that a crime occurred -- satisfying Forde -- there is no evidence, aside from the defendant's confession, linking him to it.

         We decline to expand the rule on this record. The defendant fails to articulate why our practice of rigorously examining the voluntariness of a defendant's confession is an inadequate prophylactic measure against the use of false confessions in securing a conviction. Indeed, even if we were to expand the rule, it would not aid the defendant's case. In addition to the defendant's admission, the Commonwealth presented evidence at trial linking the defendant to the murder, including testimony that (1) a young man was seen fleeing from the scene of the shooting; (2) the young man had a firearm fitting the description of a revolver in his possession as he fled; (3) the young man was wearing a distinctive baseball cap, which fell to the ground; (4) the cap belonged to the defendant; and (5) the victim and the defendant were known to each other.

         The defendant also asks for unspecified relief under G. L. c. 278, § 33E, on the basis that the jury could not properly assess the voluntariness of his admission in this case. We disagree, as the jury heard extensive evidence about the circumstances surrounding the defendant's statements, and were properly instructed on the humane practice rule. We therefore decline to grant relief under § 33E.

         b. Motion to suppress the defendant's statements.

         The defendant next asserts error in the denial of his pretrial motion to suppress his statements to the police based on his claim that they were involuntary and coerced. The Commonwealth argues that the defendant waived this argument by failing to brief the issue in accordance with Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975).[1] In his brief, the defendant does not dispute the factual findings of the judge who heard the motion (pretrial motion judge) as to the credibility of witnesses, but the defendant states that he "does dispute the conclusions of law." The defendant then states that he incorporates by reference the authorities cited in the defendant's application to a single justice in the county court for leave to prosecute an interlocutory appeal "in the interests of judicial economy and brevity." The defendant additionally cites to authorities apparently not cited in the prior filings, but does not provide complete citations or any argument as to why those authorities undermine the rulings of the pretrial motion judge.

         We agree with the Commonwealth that the defendant's treatment of this issue in his brief does not rise to the level of appellate argument required by rule 16 (a) (4) and is therefore technically waived.[2] However, review under G. L. c. 278, § 33E, requires us "to consider all issues apparent from the record, whether preserved or not." Commonwealth v. Randolph, 438 Mass. 290, 294 (2002). Thus, we review the denial of the motion to suppress, and if there was error, we determine whether the error created a substantial likelihood of a miscarriage of justice in the verdict. Id.

         "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of his ultimate findings and conclusions of law.'" Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002) .

         Following an evidentiary hearing, the pretrial motion judge found the following facts that we conclude are supported by the evidence. In investigating the victim's murder, the detectives initially brought the defendant's older brother, Cassim, to the police station for questioning because they had received information that he had been seen wearing a blue Detroit Tigers baseball cap, similar to the one found near the scene of the shooting. Apparently satisfied that Cassim was not involved in the shooting, he was subsequently dropped off at home by a police officer after the interview. Weaver was upset that Cassim had been taken to the police station.

         After speaking with Cassim, the focus of the investigation shifted to the defendant. O'Leary went to the Weaver residence, apologized for bringing Cassim to the police station, and told Weaver that he wanted to speak to the defendant about the victim's murder. Weaver knew the victim and was aware of the shooting. Weaver told the police that the defendant was away at camp and that he would be returning on Sunday, August 24. Weaver and O'Leary agreed that they would meet, with the defendant present, on Monday, August 25.

         In the time between speaking with Weaver and the anticipated interview with the defendant, O'Leary learned that the Boston police had arrested the defendant on a drug offense on July 26, 2003. The booking sheet generated after that arrest indicated that the defendant was wearing a Detroit Tigers baseball cap. This baseball cap closely resembled the baseball cap found near the scene of the victim's shooting.

         At approximately 8:30 P..M. on August 25, O'Leary returned to the Weaver home with another detective to meet with the defendant. Although Weaver was cordial and respectful, the presence of the detectives in her home caused her to feel very uncomfortable. Weaver had not had any previous contact with the police and she was still upset and concerned about the detectives conducting the interview with Cassim. She invited the detectives to sit at the dining room table where she and the defendant joined them. At some point during the conversation, Weaver left the table to continue cooking dinner in the adjoining kitchen. The apartment had an open floor plan and the view from the dining room table to the kitchen was unobstructed.

         Before the detectives began questioning the defendant, O'Leary produced a waiver form that contained a printed version of the Miranda warnings especially for juveniles. Upon seeing the form, Weaver asked if it was necessary to give her son the Miranda warnings. O'Leary told her that it was "routine" and then explained that because his purpose was to question the defendant about the victim's shooting, the defendant should be advised of his Miranda rights before any questioning took place. O'Leary first asked the defendant to complete the part of the form containing his personal information. The defendant did so at his mother's direction. O'Leary read each of the rights from the form and then asked Weaver and the defendant if they understood them. He also asked them to initial the form after each warning to indicate that the rights had been explained to them. The pretrial motion judge concluded that Weaver, though not highly educated, is an intelligent woman and understood those rights.

         Weaver noticed that the defendant was becoming "aggravated and frustrated" as the rights were being explained. She told him to relax and breathe while encouraging him to sign the form. She and the defendant verbally acknowledged that they understood the rights being explained and initialed the form as requested. Weaver never explained her understanding of these rights to the defendant.

         After Weaver and the defendant signed the form, O'Leary told Weaver that she could speak with her son privately. They went to the area near the stairs, away from where they had been sitting. After a few minutes, they returned to the dining room. O'Leary stated that if they understood the rights and if they agreed to speak with them, the defendant should sign the part of the form that acknowledged that he had taken advantage of the opportunity to speak with his mother outside the presence of the police officers. The defendant and his mother signed the form.

         The detectives then questioned the defendant about the victim's shooting for about three hours. Weaver occasionally left the table to continue cooking dinner but remained within earshot of the interview at all times. The defendant denied that he was in the area of Wendover Street on the night of the shooting, that he was associated with any of the individuals named by the police, or that ...


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