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Commonwealth v. Miller

Supreme Judicial Court of Massachusetts, Bristol

August 17, 2016


          Heard: May 6, 2016.

         Indictments found and returned in the Superior Court Department on December 15, 2006.

         A pretrial motion to suppress evidence was heard by Gary A. Nickerson, J.; a second pretrial motion to suppress evidence was considered by John P. Connor, Jr., J.; the cases were tried before Barbara A. Dortch-Okara, J., and a motion for a new trial was considered by her.

          Jennifer H. O'Brien for the defendant.

          Corey T. Mastin, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Cordy, Duffly, Lenk, & Hines, JJ. [1]

          CORDY, J.

         On the evening of September 25, 2006, James Cadet was shot and killed. The defendant, David T. Miller, who lived in the same apartment complex as the victim, was indicted for the murder three months later after several witnesses, as well as evidence seized during a search of his apartment building, linked him to the crime.

         The trial began in February, 2009. The defendant was allowed to conduct the trial pro se but standby counsel, who had been appointed to assist him, actively participated throughout the trial proceedings.

         On February 24, the jury returned verdicts of guilty of murder in the first degree, on a theory of deliberate premeditation, and of the unlawful possession of a firearm.

         The next day, standby counsel for the defendant was contacted by a juror who stated that she was troubled by the verdict, and eventually submitted a letter to the judge addressing her concerns.

         The defendant subsequently filed a motion for a new trial based on information set forth in the juror's letter, arguing that extraneous material had reached the jury room and tainted the jury's verdict. The motion was denied in November, 2009, and the defendant's appeal therefrom was consolidated with his direct appeal.

         On appeal, the defendant claims error in (1) the denial of his motions to suppress certain evidence, (2) the denial of his motion for a new trial, and (3) the admission of certain evidence at trial. He also requests relief under G. L. c. 278, § 33E. We affirm the defendant's convictions.

         1. Background.

         The defendant does not challenge the legal sufficiency of the evidence at trial, so we briefly summarize the relevant evidence.

         a. The killing.

         At approximately 9:30 £.M. on September 25, Fall River police officers arrived at the Sunset Hill housing development (Sunset Hill) to find the victim lying on a walkway. He had been shot numerous times and had succumbed to those wounds.

         Multiple witnesses observed a large person, ostensibly the shooter, wearing a dark, hooded sweatshirt in the vicinity of the crime scene shortly after hearing gunshots. One witness saw the victim fall on the shooter and the shooter kick the victim multiple times before fleeing the scene. As the shooter fled, another witness recognized him as the defendant based on his gait.

         At the time of the shooting, the defendant lived in a unit in Sunset Hill that belonged to his girl friend, Christina Helger. The victim, who had been friends with the defendant, was also a resident of Sunset Hill. However, on the day before the murder the defendant and the victim got into an argument after Helger had allowed the victim to use her bathroom while the defendant was not home. As a result of this argument, the victim later returned to Helger's apartment brandishing a firearm. The victim pointed the weapon toward her apartment and stated that there would be "problems" if she and the defendant did not leave Sunset Hill. The victim then left without further incident.

         On the day of the murder, Helger twice spoke with the some of the defendant's friends over the telephone. These telephone calls led her to drive to a nearby fast food restaurant, meet the defendant's friends, and direct them to her apartment. Ultimately she and the group of friends entered Sunset Hill, and got as far as the first building, when they heard gunshots and fled the scene.

         Within five minutes of hearing the gunshots, Helger received a telephone call from the defendant, who asked her to pick him up on a street adjacent to Sunset Hill. When Helger picked the defendant up, he instructed her to drive to Boston.

         On the way there, the defendant told Helger that "[the victim] got shot, and that [the defendant] did what he had to do." Additionally, he began to pray, and he instructed Helger that, if asked, she should lie and say that they had left Fall River at 6 P..M. The defendant also told Helger to put her hands up if they were stopped by the police because the police would think that the defendant had "something on him" and he did not want Helger to get shot.

         After arriving in Boston, Helger observed the defendant wiping blood off his face. The defendant then purchased new shoes at a store and threw the pair of shoes he had been wearing in a trash barrel. After visiting his brother at his brother's house, the defendant and Helger spent the night at a hotel in Boston.

         The following day, Helger and the defendant traveled to his mother's house, where he destroyed the subscriber identity module located in his cellular telephone.

         The police recovered a black, hooded sweatshirt with the victim's blood, along with a pair of gloves that tested positive for gunshot residue, on the sidewalk of a street near Sunset Hill. They also recovered, insofar as relevant here, twelve .223 caliber shell casings from the scene of the crime. It was later determined that the .223 caliber cartridge casings were fired from a Ruger Mini-14 rifle (rifle) recovered from the residence located in the Dorchester section of Boston.

         At trial, Steve Smith, another Sunset Hill resident, identified the rifle recovered from the Dorchester residence as the rifle that he had given to the defendant approximately two weeks before the shooting, in exchange for "crack" cocaine. Smith also gave the defendant multiple rifle magazines and numerous rounds of .223 caliber ammunition during that transaction. Shortly after the shooting, the police executed a search warrant for the defendant's apartment and recovered, from the basement of a neighbor's unit that shared basement space with the unit in which the defendant was living, a rifle case, .223 caliber ammunition, and rifle magazines, which Smith identified at trial as having previously been his.

         b. The grand jury transcript.

         While in prison awaiting trial, the defendant sent a letter to a relative, in which he requested that the recipient contact his sister in order to have her instruct his stepfather not to testify before the grand jury or at the defendant's trial.

         The defendant attached six pages of grand jury transcript to the letter. That transcript recounted the testimony of Detective John McDonald of the Fall River police department, who had interviewed the stepfather during the course of the investigation. According to McDonald's grand jury testimony, the defendant told the stepfather that he shot the victim, then took the victim's gun and shot him with that weapon, spit on the victim's face, and kicked him in the head.[2]

         The defendant's letter and the attached grand jury transcript were intercepted, pursuant to an order, by a prison official. The letter and grand jury transcript were subsequently admitted in evidence at trial.

         2. Motions to suppress.

         "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. Jiminez, 438 Mass. 213, 218 (2002) .

         a. Evidence seized from the basement.

         The defendant first contends that evidence obtained from the basement unit of the apartment adjoining his was beyond the scope of a search warrant and therefore was improperly seized and admitted in evidence at trial. The undisputed facts presented at the motion hearing are as follows. Shortly after the death of the victim, the Fall River police department executed a search warrant. The search warrant authorized the police to search unit 316 of Sunset Hill, which at the time was occupied by the defendant and Helger.

         During the execution of the warrant, police officers recovered a plastic bag containing two metal ammunition clips loaded with .223 caliber ammunition, and they also found loose .223 caliber ammunition rounds. The police also recovered a rifle carrying case from the same area. The defendant asserts (and the Commonwealth does not dispute) that these items were seized from the basement of unit 315, a neighbor's apartment, and were thus outside the scope of the warrant for the search of his apartment (unit 316), ...

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