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Commonwealth v. Carter

Supreme Judicial Court of Massachusetts, Plymouth

September 19, 2016


          Heard: April 8, 2016

         Indictments found and returned in the Superior Court Department on December 30, 2009.

         A pretrial motion to suppress evidence was heard by Thomas F. McGuire, Jr., J., and the cases were tried before Raymond P. Veary, Jr., J.

          Russell C. Sobelman for the defendant.

          Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Spina, Botsford, Duffly, & Hines, JJ.[1]

          HINES, J.

         In April, 2013, a jury convicted the defendant, Vernon T. Carter, of murder in the first degree of Scott Monteiro on a theory of felony-murder, based on the predicate felony of armed robbery.[2] The defendant was also convicted of armed robbery, assault and battery of Sheldon Santos, possession of a firearm, and possession of ammunition.[3] On appeal, the defendant asserts error in (1) admission of identifications obtained through procedures alleged to be suggestive; (2) testimony from a last-minute Commonwealth witness; (3) the prosecutor's closing argument; (4) omission of jury instructions regarding involuntary manslaughter, "humane practice, " and intoxication; (5) judicial bias; and (6) firearms-related convictions without evidence that he was not licensed.[4] The defendant also argues that he is entitled to relief under G. L. c. 278, § 33E. We vacate, as duplicative, the defendant's armed robbery conviction, because it was the predicate felony for his felony-murder conviction, the only theory on which the jury found him guilty of murder in the first degree. See Commonwealth v. Alcequiecz, 465 Mass. 557, 558 (2013). We affirm the defendant's remaining convictions, and we discern no other basis to exercise our authority pursuant to G. L. c. 278, § 33E.


         We summarize the evidence as the jury could have found it, reserving certain facts for later discussion. At approximately 10 P.M. on Friday, September 4, 2009, a group of twenty to thirty people, in their late teens or early twenties and generally from the Wareham area, gathered at a residence in Wareham for a "house party." People were socializing and drinking, "[j]ust teenage and adolescent kids having fun." Monteiro, who had turned twenty-one years of age approximately one month before the party, arrived with three of his friends. Santos was there wearing a gold chain.

         One of the young women at the party had asked the host if she could invite her friend "Justin." Between 11:30 P.M. and midnight, Justin arrived with a group of ten to fifteen people. They introduced themselves to one or more partygoers as being from the "United Front" in New Bedford. The party became more "tense" after the group's arrival, and someone in the group started to complain, "This party is whacked. . . . There's no bitches." A short time later, the majority of the New Bedford group left the house. Within a few minutes, two to five people reentered and approached Santos. Santos had been sitting on a sofa with his girl friend, and Monteiro was sitting on a nearby chair. Santos stood up when approached, and a few people from the New Bedford group surrounded the sofa area so as to prevent anyone from leaving. The defendant pulled a gun out of his pants, pointed it at Santos's head, and said, "Run your chain." He reached toward Santos, and Santos dropped to the floor. Monteiro then stood up, held his hands out with palms facing up, and calmly said, "Chill, we are all just chilling." The defendant fired three shots, and a single bullet hit Monteiro above his right eye. At some point during this altercation, Santos suffered a face injury that required sutures; he also lost his gold chain.

         One of Monteiro's friends attended to him as the remaining partygoers dispersed. The police and emergency medical services personnel arrived a few minutes after the shooting. Monteiro was lying on the floor, breathing but unresponsive. He was transported by ambulance to a nearby hospital. Monteiro died from a gunshot wound to the head.

         The police recovered a spent shell casing from the ambulance and, during Monteiro's autopsy, recovered three fragments of a shell casing from Monteiro's head. The shell casing from the ambulance was from a .22 caliber firearm, and the fragments were consistent with being from the same firearm.

         The police spoke to witnesses the night of the party, many of whom gathered outside of the house after the incident. At least one of the partygoers knew the defendant by name and provided that information to police.[5] Using that information, Wareham police compiled two photographic arrays containing the defendant's photograph. The following morning, the police showed the first array containing eight photographs to the witness who knew the defendant. The witness did not identify the defendant's photograph in this array. Less than one hour later, the police showed the witness the second array containing six photographs. The witness identified the defendant in the second array, explaining that he recognized the defendant in the first array but did not identify him because he was "nervous."

         Approximately one and one-half hours after the identification, Wareham police notified police in New Bedford that the defendant was a suspect in a homicide investigation and requested that they question him. Within one hour of the dispatch, New Bedford police officers observed the defendant walking and stopped their cruiser to speak to him. The defendant stopped and agreed to accompany them to the police station for questioning. At the police station, the officers recorded the interview. The defendant told them that he had been at the party but stayed outside the house. After questioning the defendant for approximately one hour, the police released him.

         The following morning, the defendant went to the house of a woman he had known since he was a child and asked if he could stay with her because the police were looking for him in connection with an incident at a party in Wareham. She said, "no, " because her family was there. As she hugged him goodbye, she felt something "heavy" and "hard" in the defendant's waist.

         State police arrested the defendant later that day pursuant to a warrant. He was wearing a black hat displaying the word "Invincible." The State police interrogated the defendant on September 6 and 7, 2009.[6] The defendant told police that he was at the party, he did not have a gun, but he knew that at least four people in his group were carrying firearms. He said that Santos and his "squad" had guns and threatened someone in the New Bedford group. He said he saw the shooter "cock" the firearm and "pistol whip" Santos, and that he was about five or six feet from the shooter when the gun was fired. The defendant also told police that one of the people in his group, "Justin, " hid a gun after the party, and he directed police to the apartment where the gun could be found. The police seized a .38 caliber firearm from the apartment, which did not fire the shell casing obtained from the ambulance and was not consistent with the firearm used as the murder weapon.[7]

         Within forty-eight hours of the shooting, four witnesses identified the defendant as the shooter in photographic arrays.[8], [9] They and other witnesses described the shooter as between five feet, five inches and five feet, nine inches tall, skinny, "light skinned, " and wearing a black hat. One of the witnesses testified that the shooter was wearing a hat displaying the word "Invincible." The police showed the witnesses an additional photographic array containing other people mentioned by the defendant as being at the party. Except for one witness who identified a photograph of Justin as being at the party, no other potential suspects were identified.


         The defendant challenges a number of issues at trial, framing them as errors by the judge, the prosecutor, defense counsel, or some combination thereof. We consider each claim to determine "whether there was an error in the course of the trial (by defense counsel, the prosecutor, or the judge) and, if there was, whether that error was likely to have influenced the jury's conclusion." Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).

         1. Identification evidence.

         The defendant filed a motion to suppress the four eyewitness identifications of him as the shooter, claiming that the photographic arrays were unnecessarily suggestive and tainted the remaining identifications because the witnesses discussed the incident in person and through social media. Two witnesses failed to identify the defendant in an initial photographic array containing eight photographs, but subsequently identified the defendant when shown the second array containing six photographs. The defendant was the only person depicted in both arrays. The defendant also argued that the following procedures caused the arrays to be unduly suggestive: the photographs were not presented sequentially, the arrays were not blindly administered, and all arrays should have contained at least eight photographs.

         At the evidentiary hearing, the defendant focused on the two identifications that were obtained through repetitive arrays. The judge concluded that the repeat arrays were not unnecessarily suggestive. First, the photographs in each array were similar to the defendant's photographs. Next, the second array contained a more recent photograph of the defendant with shorter hair, which was more similar to his appearance at the party, and both witnesses told police that the shooter had shorter hair than the individuals depicted in the photographs in the first array. Moreover, the judge found that the witness who knew the defendant before the party was not swayed by the presence of his photograph in repeat arrays, crediting the witness's testimony that he did not identify the defendant in the first array out of fear.

         On appeal, the defendant does not claim error in the denial of the motion to suppress, but argues that the prejudicial effect of the photographic array procedure; the conflicting witness testimony; the consumption of alcohol and marijuana by eyewitnesses; and a "rumor mill"[10] created through witness discussion of the incident prior to the identifications, social media, and media coverage caused a substantial likelihood of a miscarriage of justice. The defendant's argument lacks merit.

         The defendant "has a due process right to identification procedures meeting a certain basic standard of fairness." Commonwealth v. Silva-Santiago, 453 Mass. 782, 794 (2009), quoting Commonwealth v. Dougan, 377 Mass. 303, 316 (1979). We discourage the use of repeated arrays containing a suspect's photograph, see Commonwealth v. Scott, 408 Mass. 811, 826 (1990), and the use of repeated arrays could make identification procedures unnecessarily suggestive if the police do not have good cause for the use of such procedure. In this case, the judge implicitly found good cause because the second array was given to both eyewitnesses after each commented that the perpetrator's hair was shorter than was depicted in the photographs used in the first array. Moreover, we recognize that police did not follow procedures that we have previously recommended: "double-blind procedure" and "sequential method." See Silva-Santiago, supra at 797-800. However, the absence of the recommended procedures goes only to the weight of the identifications, not admissibility.[11] Id. at 797-799.

         Our conclusion that the identifications were not "unnecessarily suggestive" does not end the inquiry. Even if otherwise admissible, a judge may suppress identification evidence if "its probative value is substantially outweighed by the danger of unfair prejudice." Commonwealth v. Johnson, 473 Mass. 594, 599 (2016), quoting Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014). Mass. G. Evid. § 403 (2016). In this analysis, the "probative value of the identification depends on the strength of its source independent of the suggestive circumstances of the identification." Johnson, supra at 601. Relevant factors include "the witness's opportunity to observe the offender at the time of the crime, the amount of time between the crime and the identification, whether the witness's earlier description of the perpetrator matches the defendant, . . . whether the witness earlier identified another person as the perpetrator or failed to identify the defendant as the perpetrator, " and "the witness's prior familiarity with the person identified." Id.

         The record reflects, however, that the defendant would not have been able to meet his burden to establish that the prejudice resulting from the admission of the identifications outweighed their probative value.[12] The four eyewitness identifications were made within forty-eight hours of the shooting, the witnesses observed the shooter from nearby locations -- one witness being "a foot away" from the gunman at the time -- and their ability to observe and report the incident was not impaired by alcohol or drugs.

         2. Last-minute witness.

         The defendant claims that he was unfairly surprised by the testimony of a witness not listed on the pretrial witness list and that trial counsel was ineffective for failing to object to this testimony. The Commonwealth has an affirmative duty to timely disclose proposed witnesses. See Mass. R. Crim. P. 14 (a) (1) (A) (iv), (v), as amended, 444 Mass. 1501 (2005). A judge has "significant discretion in deciding whether late-discovered or late-disclosed witnesses should be excluded from testifying" as a remedy for the late disclosure. Commonwealth v. Nolin, 448 Mass. 207, 225 (2007), quoting Commonwealth v. Trapp, 423 Mass. 356, 363-364, cert, denied, 519 U.S. 1045 (1996). The relevant inquiry is whether the defendant has sufficient time to investigate the proposed testimony. Commonwealth v. Lopez, 433 Mass. 406, 413 (2001). In that regard, "it is the consequences of the delay that matter, not the likely impact of the nondisclosed evidence." See Commonwealth v. Baldwin, 385 Mass. 165, 175 (1982), quoting Commonwealth v. Wilson, 381 Mass. 90, 114 (1980).

         Here, the prosecutor told the judge on the fifth day of trial that he had mistakenly omitted a witness from the list. He asked that the witness, a Wareham police officer, be permitted to testify and asserted that defense counsel had agreed to such the prior day. The judge granted the request. The officer, who was the first at the scene of the shooting, testified that he saw a shell casing from a small caliber firearm on the floor near Monteiro's body when he approached to provide care. Police did not find that shell casing or any other ballistics evidence at the house.

         The defendant has not shown any prejudice from the testimony or demonstrated that he could have benefited if defense counsel had objected. The record reflects that defense counsel agreed to the prosecutor's request, suggesting that he had an adequate opportunity to prepare for the testimony. Moreover, he thoroughly cross-examined the witness on matters relating to the central issue in the trial -- the credibility of the eyewitness identifications. The officer testified after the five eyewitnesses, all of whom had been shown photographic arrays. Defense counsel's cross-examination focused on differences between recommended procedures for arrays and those used during ...

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