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Commonwealth v. Chukwuezi

Supreme Judicial Court of Massachusetts, Suffolk

September 29, 2016

COMMONWEALTH
v.
XZENIYEJU CHUKWUEZI.

          Heard: February 12, 2016.

         Indictments found and returned in the Superior Court Department on July 1, 2009.

         The cases were tried before Linda E. Giles, J.

          Stephen Paul Maidman for the defendant.

          Zachary Hillman, Assistant District Attorney, for the Commonwealth.

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

          LENK, J.

         The defendant was convicted by a Superior Court jury of murder in the first degree on a theory of deliberate premeditation, and of unlawful possession of a firearm, in connection with the 2009 shooting death of Soheil Turner, a fifteen year old boy. The defendant was eighteen years old at the time of the shooting. On appeal, the defendant argues that the trial judge abused her discretion in excluding from evidence a computer-generated simulation that was intended to assist the jury in determining the shooter's height. He also asserts error in several other respects, described in greater detail below, and seeks relief under G. L. c. 278, § 33E. Having reviewed the entire record, we affirm the convictions and discern no reason to exercise our authority to grant extraordinary relief.

         1. Background and procedural posture.

         We recite the facts the jury could have found, reserving certain details for later discussion. At approximately 7:20 A.M. on May 7, 2009, Turner was shot in the back of the head and in the right shoulder while waiting for a school bus in the Roxbury section of Boston. He died later that day as a result of the shooting. Police recovered two shell casings from the scene of the shooting that appeared to have been fired from a semiautomatic firearm.

         Several video surveillance cameras recorded the shooting and the surrounding circumstances.[2] Shortly after 7 A.M. on the morning of the shooting, the shooter, an African-American male carrying a yellow umbrella, walked north on Adams Street from the direction of Forest Street, and stopped at the northeast corner of Dudley Street and Adams Street. The shooter was wearing a black hooded sweatshirt with the hood up, and a loose fitting T-shirt and pants. A few minutes later, a young woman, later identified as Amari Figueroa, arrived at the southeast corner of the intersection, talking on her cellular telephone. She and the shooter waved to each other. Shortly thereafter, Turner arrived in the area and went into a convenience store on Dudley Street near the southwest corner of the intersection. After Turner returned outside, the shooter walked diagonally across the intersection towards him, and stood with him in front of the store. The two had a short conversation. The shooter then drew a gun that he had been concealing and shot Turner twice. The shooter ran around the corner onto Adams Street, tucking the gun into his waist area as he did so, then ran up the east side of Adams Street and out of view.

         Figueroa eventually told police that the person she had waved to on the morning of the shooting was the defendant. She had known the defendant for several years, socialized with him occasionally, and lived two houses away from him on Forest Street, a short walk from the intersection where the shooting took place. After hearing the gunshots, Figueroa saw the defendant "speed walking" down Adams Street in the direction of Forest Street.[3] She then telephoned 911. At some point in the weeks after the shooting, Figueroa met with the defendant and asked him why he shot Turner. The defendant told her that a fifteen year old recently had shot and injured one of his friends. The defendant explained that "[i]f he didn't kill [Turner] then he was going to be next." The defendant also urged her not to say anything to police.

         Other witnesses corroborated Figueroa's testimony about the shooting. Raymona Hartepps walked out of the convenience store shortly before the shooting, and overheard part of the shooter's brief conversation with Turner. She recalled hearing Turner ask the defendant where he was from and what his name was.[4] As soon as Hartepps had walked past the store, she heard two gunshots, and saw the shooter run around the corner onto Adams Street in the direction of Forest Street, tucking a black object into his right pocket. Isaiah Grant also saw the shooter run down Adams Street onto Forest Street. Grant further observed the shooter run up a set of steps and around to the right side of a duplex house on Forest Street. The defendant, who was in high school at the time, lived with his family on the right side of that house.

         On July 1, 2009, a grand jury returned two indictments, charging the defendant with murder in the first degree, G. L. c. 265, § 1, and unlawful possession of a firearm, G. L. c. 269, § 10 (a.) . The defendant's theory of the case was one of mistaken identity. He sought to impeach Figueroa's credibility on cross-examination, and called alibi witnesses. The defendant's mother and younger brother both testified that the defendant was at home getting ready for school at the time of the shooting. The defendant also testified in his own defense, stating that he did not shoot Turner. In addition, the defendant sought unsuccessfully to introduce a computer-generated simulation in evidence.

         On October 19, 2010, the jury found the defendant guilty of murder in the first degree on a theory of deliberate premeditation.[5] They also found him guilty of unlawful possession of a firearm. The defendant was sentenced to life in prison without the possibility of parole for the conviction of murder in the first degree, and to a term of from four to five years of incarceration for the conviction of unlawful possession of a firearm, to run concurrently. This appeal followed.

         2. Discussion.

         The defendant argues that the judge erred with respect to several evidentiary rulings: excluding the computer-generated simulation from evidence; admitting testimony that the Commonwealth offered as a prior consistent statement by Figueroa; and allowing the Commonwealth to impeach an alibi witness for not volunteering his knowledge about the defendant's whereabouts to police, without providing appropriate instructions on alibi to the jury. The defendant further argues that the Commonwealth improperly invoked sympathy for the victim's family during its closing argument. Moreover, the defendant contends that he should not have been sentenced to life in prison without the possibility of parole because he was only eighteen at the time of the shooting. The defendant also seeks relief under G. L. c. 278, § 33E.[6]

         a. Computer-generated simulation.

         Whether the shooter was the same height as the defendant was a matter of dispute at trial.[7] To aid the jury in making that determination, the defendant commissioned a computer-generated simulation of the crime scene, based on two photographs from the surveillance camera closest to the shooting, [8] in which the shooter was standing relatively upright on a level surface.[9]

         Using principles of photogrammetry, [10] the simulation superimposed human-shaped figures of increasing height over the shooter as he appeared in the photographs. The figures were to scale with the photographs, and were shown standing rigidly upright, wearing hooded sweatshirts with the hoods up. They increased in height in one inch increments from five feet, nine inches to six feet, as measured from the soles of their feet to the tops of their hoods. In effect, the simulation attempted to facilitate a comparison between actual height of the figures and the shooter's apparent height in the photographs. The Commonwealth filed a motion in limine to exclude it from evidence on the ground that it was misleading.

         i. Voir dire.

         The judge conducted a voir dire hearing at which she questioned the graphic designer who produced the simulation, an engineer, and a forensic photographer who worked for the Federal Bureau of Investigation (FBI). The graphic designer described in detail how he had produced the simulation. At the judge's request, he used the simulation to estimate that the shooter was between five feet, nine inches and five feet, ten inches tall -- several inches shorter than the defendant, by most accounts.[11]

         The engineer testified that he was familiar with two techniques for assessing a suspect's height from a video recording. The first technique was the one the graphic designer had used. The second technique, which the judge referred to as a "height analysis, " involved directly measuring the suspect's height from the video recording, and could take the suspect's posture into account. This second technique, however, required using high-quality video footage from multiple camera angles; such footage was not available. The forensic photographer who worked for the FBI described a third technique that similarly could account for a suspect's posture.[12] In the forensic photographer's opinion, the defendant's simulation was misleading because it compared rigid figures with a person of normal posture.

         In light of this testimony and her own viewing of the simulation, the judge concluded that the simulation was "hopelessly misleading." She noted that the jury generally should be allowed to consider simulation evidence "in a close case, " and suggested that a "height analysis" in accordance with one of the other techniques described might have been admissible. Nonetheless, she expressed concern that the simulation would confuse the jury into thinking that the shooter, who was not standing as rigidly upright as the computer-generated ...


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