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Commonwealth v. Jones

Supreme Judicial Court of Massachusetts, Suffolk

June 20, 2017


          Heard: January 10, 2017.

         Indictments found and returned in the Superior Court Department on June 26, 2013. The cases were tried before Linda E. Giles, J., and a motion to set aside the verdict was heard by her.

          James L. Sultan (Kerry A. Haberlin also present) for the defendant.

          Matthew T. Sears, Assistant District Attorney (Julie Sunkle Higgins, Assistant District Attorney, also present) for the Commonwealth.

          Present: Gants, C.J., Lenk, Hines, & Budd, JJ.

          LENK, J.

         The defendant was convicted by a Superior Court jury of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty in connection with the shooting death of Dinoriss Alston on April, 17, 2012.[1] The identity of the shooter was the central issue at trial. On appeal, the defendant challenges the sufficiency of the evidence, and also asserts a number of errors in the trial proceedings. He maintains that the judge erred in failing to require the Commonwealth to explain its peremptory challenge of a prospective juror; improperly allowed the admission of evidence as to the defendant's refusal to go to the hospital to be shown to the surviving witness and as to a police radio broadcast describing the shooter; incorrectly instructed the jury that circumstantial evidence would suffice while failing to instruct that mere presence was not enough; and improperly limited the defendant's cross-examination of a Commonwealth witness. The defendant asserts also that he received ineffective assistance of counsel and requests relief under G. L. c. 278, § 33E.

         We conclude that, while the evidence at trial was not by any means overwhelming, it was sufficient to sustain the defendant's convictions. The judge's failure to require an explanation of the prosecutor's peremptory challenge of a prospective juror who is African-American, however, requires the convictions be vacated. We address other claimed errors only insofar as they may recur at any new trial.

         1. Background.

         Because the defendant challenges the sufficiency of the evidence, we discuss in some detail the facts the jury could have found.

         a. The shooting.

         On the afternoon of April 17, 2012, Alston and his girl friend, Ashley Platt, were sitting in her vehicle near a park on Dunreath Street in the Roxbury section of Boston when they were struck by multiple gunshots. Platt was in the driver's seat, and Alston was in the front passenger's seat. The primary issue at trial was the identity of the shooter.

         Platt testified that, on April 17, 2012, an unseasonably warm day, she and Alston went to the beach after she left work at around 11 A.M., and later decided to drive to a park in Roxbury where they frequently spent time, arriving at approximately 3:40 or 3:45 P.M. Platt did not tell anyone about their plans for the day. Alston spoke on his cellular telephone "a couple of times" during the afternoon, including making a call at about 3:07 P.M. to a person identified as "Suncuz."[2] At some point on the drive from the beach to the park, the two stopped at a location in the Grove Hall neighborhood of Roxbury, where Alston spoke briefly to a man Platt did not know; when he returned to the vehicle, Alston's demeanor remained "normal." Platt then drove to a convenience store, where Alston made a purchase while she remained in the vehicle, and the two then made their way to Dunreath Street near the park.[3] After they stopped, they remained in the vehicle smoking marijuana, while Platt used her cellular telephone to send messages.

         Twenty to thirty minutes later, at around 4:03 P.M., someone opened fire on the vehicle. Bullets came through the windshield and struck Alston, who was in the front passenger's seat, multiple times in the right side of his neck, the right side of his chest, and through his right elbow.[4] Alston reached down and put the vehicle in gear and told Platt, who was in the driver's seat, to "go." Platt drove rapidly away from the scene and sought help at a nearby gasoline station on the corner of Moreland Street and Blue Hill Avenue. Emergency responders pronounced Alston dead at the scene, and discovered that Platt also had been shot; she was transported to the hospital in the ambulance that had been summoned for Alston.

         b. The investigation.

          i. Flight from the scene.

         Platt did not see the shooting itself or anyone carrying a firearm; she saw the windshield cracking and glazing and an individual walking calmly away from the parked vehicle, along Dunreath Street, who ignored her screams for help. She did not see anyone else nearby. At trial, Platt described the individual, whom she saw only from behind, as a black male wearing a white and red shirt, khaki cargo shorts, [5] a black and red hat, and Chuck Taylor sneakers, a distinctive brand of shoes that were primarily black but have a white "rubber front." She lost track of him after driving past him on Dunreath Street.

         Because Platt did not see the shooter's face, and thus was unable to identify him, the Commonwealth relied on testimony from a number of other witnesses to establish the defendant's familiarity with the area near the shooting. His former girl friend, who lived in that neighborhood, testified that the defendant had grown up in the neighborhood and continued to come by frequently to visit her. She testified that she spent the evening of the shooting with the defendant "like a normal day, " and that he had been "shocked" by the fact that a shooting had taken place nearby.

         Another of the defendant's friends testified that, before the shooting, he had seen the defendant in the neighborhood several times a week, but, after the shooting, saw him in the area much less frequently. When asked why he no longer spent time in the area, the defendant replied "the block is hot, " which his friend understood to mean that "there [are] cops everywhere."

         In addition to Platt's description of the shooter, the Commonwealth introduced testimony from a number of witnesses along the purported path of flight away from the scene of the shooting. Byrain Winbush was at home watching television, near the corner of Warren Street and Dunreath Street, when he heard a series of shots, which sounded as though they had been fired from a semiautomatic firearm. He looked out his window and telephoned 911. Both in his testimony and in the audio recording of the 911 call, which was played for the jury, he described seeing a black male, whom he could see only from behind, wearing "yellow shorts, " a "white shirt, " and socks and sneakers, without a hat, running up the street. He could see the individual's hands and did not notice a weapon. Although he heard screaming and the sounds of "scattering" feet, he did not see anyone else. The individual with the white shirt and yellow shorts remained in view until he reached the corner of the nearby park.

         Leonor Woodson was sitting near the window of her home on Dunreath Street, across the street from the park, when she heard multiple gunshots and looked out the window. Her sister, Leila Jackson, also heard the shots and ran to the window.[6] Both saw a black man wearing light pants with pockets on the side, a dark colored jacket, [7] and a cap[8] "gallop []" or run quickly down Dunreath Street, turn into the park, then run through the park and turn left onto Copeland Street. As the man ran, he held his right side, either near the hip or the mid-thigh, as if there were something in the pocket. Jackson said that the item appeared to be "weighing him down." The sisters lost sight of the man soon after he left the park and turned onto Copeland Street. While the man was running past their house, Woodson saw a light-colored vehicle drive quickly down Dunreath Street.

         Nicolas Guerrero and Bryan Santiago were playing basketball with Santiago's young son in the park between Dunreath and Copeland Streets when they heard gunshots. A few seconds after the shooting stopped, Santiago saw a white vehicle with a shattered passenger's side window go past. Soon thereafter, both Guerrero and Santiago saw a man run past and then leave the park. Both described him as holding the right pocket of his shorts; Guerrero described the shorts as cargo shorts, and Santiago described them as being in between "light brown" and "dark brown." Santiago believed the man was holding something relatively heavy in that pocket.

         Jerome Baker was sitting on the porch of his house on Copeland Street, across the park from Dunreath Street, when he heard gunshots, which sounded like they were coming from the other side of the park. He looked up and saw a vehicle "speed away" down Dunreath Street. He then saw a man he knew at that point only as "Mo, " but whom he identified during his testimony as the defendant, run through the park. He testified that he believed the defendant had been wearing jeans, but agreed that he had little recollection of the defendant's clothing and may have thought that simply because the defendant frequently wore j eans.

         Joan and Joy Andrews[9] were standing near each other on the Copeland Street side of the park, watching a young girl who was Joan's grandniece and Joy's granddaughter ride her bicycle around the playground. They heard multiple gunshots in rapid succession, coming from Dunreath Street. Both were focused on protecting the child, but each saw at least one person running. Joan testified that, after she left the park and had crossed the street, she saw a man running out of the park, alone, wearing cargo shorts. She said that the pocket on the right side of his shorts was swinging as though it contained a heavy object. She only saw the man from the side so was unable to distinguish his face. He continued running on Copeland Street until he reached Langford Park, a small, dead-end street, where he turned. Although Joan knew a man "by the name of Mo, " she could not identify him as the person whom she saw running. Joy testified that she saw "Mo" around the neighborhood "every day, " and recognized him as the first man from the area to get a job; she identified him as the defendant in court. She recalled that, immediately after hearing gunshots, she saw several people, including Mo, running out of the park and onto Copeland Street, but did not remember what Mo had been wearing.

         Brian McClain was on the porch of his house on Langford Park. He saw "Mo, " whom he had known much of his life, and whom he identified in court as the defendant, walking past and spoke briefly to him. McClain was unable to remember anything about the clothes the defendant had been wearing, did not remember seeing the defendant running or clutching a leg or pocket, and did not remember the defendant sweating or breathing heavily as though he had been running. McClain saw "Mo" walk down the street toward a hole in the fence that separated the dead-end Langford Park from the properties on Perrin Street. McClain did not see him go through the hole in the fence.

         ii. Interviews of Platt.

         Investigating officers interviewed Platt several times in order to obtain a description of the shooter. At each interview, she gave generally consistent accounts that varied somewhat in their detail. When police first spoke to Platt at the gasoline station, she was "very upset, " crying, and unable to stand still. She described the shooter as a younger black male, wearing a white T-shirt and khaki pants.[10] The interview ended after only a few minutes, when the responding officer realized that Platt also had been shot, in the hip, and she was transported to the hospital. At 4:08 P.M., the officer broadcast Platt's initial description over the police radio. An audio recording of this broadcast was played for the jury.

         Detective Donald Lee, who had gone directly to the hospital, spoke with Platt three times later that afternoon. During the first interview, conducted while Platt awaited treatment, she described a young black male, wearing a white T-shirt and khaki pants. After another officer joined them, Lee and that officer conducted another, recorded, interview. During that interview, Platt described the man as a black male wearing a white shirt, khaki shorts, a hat, and Chuck Taylor sneakers. Lee broadcast this description over the police radio at 5:07 P.M. This broadcast, too, was played for the jury.

         Lee returned to the hospital later that afternoon and obtained a second recorded statement, also played for the jury, in which Platt specified that the man had been wearing "solid black" Chuck Taylor sneakers, a black hat "with a red brim, " and, after some prompting, agreed that the white shirt "might a had some red in it."

         At trial, Platt testified that she saw a black male wearing "khaki cargo shorts, " a shirt with a "white and red combination, " a black hat with a red brim, and Chuck Taylor sneakers.

         iii. Cell site location information.

         Cell site location information (CSLI) indicated that the defendant's cellular telephone had been near the scene of the shooting at the relevant time.[11] State police Sergeant David Crouse testified that, on the evening prior to the shooting, the CSLI showed a cellular telephone that the defendant used routinely[12] located in a "wedge shaped" cell tower sector that included the area of the shooting. Records indicated that, the following morning, the cellular telephone was in a sector that included the defendant's house on Cardington Street. That afternoon, the CSLI showed the telephone at various locations in Roxbury other than the defendant's house.

         The shooting occurred at approximately 4:03 P.M. on April 17, 2012. According to Crouse, the CSLI showed that, at 3:58 P.M., a call was made from the defendant's cellular telephone while it was located in a sector that included the scene of the shooting, and at 3:59 P.M., a call was made while the telephone was located in an adjacent sector. Those two sectors overlapped in a relatively small area covering the location of the shooting. Crouse testified that, to have moved from one sector to the other within such a short period of time, the person using the cellular telephone was probably "really close to where those two sectors meet." The telephone was not used again, for incoming or outgoing calls, until 4:09 P.M., at which point the CSLI showed it as being located in the vicinity of the shooting. At 4:14 P.M., a call was made from a sector including the area near the defendant's house. At 4:34 P.M., police spoke with the defendant near his house.

         iv. The defendant's encounters with police.

         Boston police Officer Brian Johnson, who knew the defendant from prior interactions, had spoken to him on the evening of April 16, 2012, near the area where the shooting took place the following day. That evening, the defendant was wearing a black hat with a red Ralph Lauren Polo brand emblem. The following day, Johnson was called to respond to a shooting. When he learned that it had taken place at the park on Dunreath Street, he went to the defendant's house -- located roughly an eighteen-minute walk, and less than a five-minute drive, away from the crime scene -- in order to speak to him, as he knew the defendant regularly frequented the area around that park. Johnson received an initial description of the suspect, i.e., a black male with a white T-shirt and khaki pants. Around 4:34 P.M., while en route to the defendant's house, Johnson saw the defendant walking on Cobden Street, approximately one block from his house. He was wearing a white T-shirt with a large gray and red design on the front, the same black Polo cap with a red emblem that he had worn the previous night, khaki cargo shorts, black sneakers with a red stripe near the sole, and short white athletic socks. Johnson performed a patfrisk of the defendant and found no weapons.

         The defendant told Johnson that he was on his way to a nearby pharmacy to meet his mother. After the defendant left, police went to the defendant's mother's house and spoke briefly with her. She said that, although she had spoken to the defendant earlier in the day, she had no plans to meet him.

         After police received Lee's broadcast from the hospital, containing Platt's somewhat more detailed description of the suspect, and noted that it remained generally consistent with that of the defendant, Johnson and his partner were asked to speak with the defendant again. They again found him on Cobden Street, near his house. One of the officers asked the defendant if he would speak with them for a few minutes, and he agreed to do so. At that point, the defendant's demeanor was "very casual." Soon thereafter, two detectives who had been at the hospital joined them. At some point, an officer took photographs of the defendant, [13] and of a friend who was with him. When the detectives began the interview, ...

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