United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge
Andre Green ("Green") filed a petition for a writ
of habeas corpus ("Petition") pursuant to 28 U.S.C.
§ 2254 based on seven grounds, alleging that his trial
and conviction for first-degree murder violated his
constitutional rights. D. 1. For the foregoing reasons, the
Court DENIES the Petition.
Factual and Procedural Background
following facts are drawn from the decision of the Supreme
Judicial Court denying Green's appeal. On February 5,
2003, there was a shooting on a subway train in Boston.
Commonwealth v. Akara, 465 Mass. 245, 246 (2013).
The intended victim of the shooting was Philip Gadsden, but
one bullet struck Hawa Barry ("Barry") in the
abdomen. Id. Barry was thirty-six weeks pregnant at
the time; her baby was delivered alive but died shortly
thereafter from injuries sustained from the shooting.
that evening, Green, Chimezie Akara ("Akara"), Sean
Brown ("Brown"), and Burrell Ramsey-White
("Ramsey-White") had congregated at the Forest
Hills subway station. Id. at 248. The four were
members of a "small and loosely-organized gang"
known as Tent City. Li They wrote "Tent City" and
"TC" in green marker on a sign at the Forest Hills
subway station. Id. At around 7:40 p.m. or 7:50
p.m., the four of them boarded a train. Id. Gadsden
boarded the train at the same time and sat near to where the
four were standing. Id. While the train was passing
between stops, there was a heated exchange between Gadsden
and Akara and Green. Li at 249. Either Akara or Green drew a
weapon on Gadsden and Gadsden began to move away from them
and shouted that they have a gun. Id. At least two
shots were fired. Id. at 250. Akara, Green, Brown
and Ramsey-White ran off the train car and were heard
"laughing or chuckling in a congratulatory manner."
Id. One of the bullets had struck Barry, who began
bleeding profusely. Id. Gadsden and other passengers
assisted her in getting off the train and waiting for
emergency services. Id. The other bullet lodged in
the guitar case of another passenger and was later turned
over to the police. Id. The gun that fired the two
shots was identified as a nine millimeter Desert Eagle
semiautomatic handgun. Id. at 251.
around 8:15 p.m., Akara and Green went to the apartment where
Green lived. Id. Akara displayed a nine millimeter
Desert Eagle semiautomatic handgun to Green's cousin.
Id. After some time, Akara and Green left that
apartment and Green went to the apartment of his
then-girlfriend, Sheen Sanford ("Sanford"), while
Akara went to the house of Kalif Christopher
("Christopher"). Over the course of that night,
Akara and Green spoke to each other on the phone four times.
Li In one of these calls, Sanford answered when Akara called
Green and Akara asked Sanford, "Did I get away with
it?" Id. In the subsequent days, both Akara and
Green instructed Green's cousin not to speak to the
police. Id. at 252.
the investigation, Barry described the shooter as a person
matching Green's description and picked Green out of a
photographic array. Id. Gadsden, however, told
police that the person holding the gun was wearing clothes
that matched what Akara was wearing. Li at 249 n. 5. Gadsden
later testified to the grand jury that he could not recall
which defendant was holding the gun. Id.
jury indicted both Akara and Green for first-degree murder.
Id. at 246. Akara and Green moved to sever their
trials from each other, contending that their defenses were
"mutually antagonistic and irreconcilable."
Id. at 256. These motions were denied. "The
Commonwealth's theory at trial was that the shootings had
been committed as part of a joint venture in which one of the
defendants had fired the gun intending to shoot Gadsden, and
the other had acted as the joint venturer in the commission
of the crime." Id. at 247. The Commonwealth
"presented two alternative and mutually exclusive
versions of events": that either Akara or Green was the
shooter. Id. at 439.
trial, Sanford testified that, on the night in question, when
Akara called Green, Akara had asked Sanford whether
"they [were] going to get away with it."
Id. at 266. The use of the word "they"
conflicted with her statements to the grand jury, which
indicated that Akara had asked Sanford "Did I get away
with it?" Id. This was pointed out during her
cross-examination and Sanford then corrected her testimony,
consistent with her statements to the grand jury.
Commonwealth's expert, John M. Brown of the Boston Police
Department, testified, over the defendants' objection,
that Tent City was a gang, which he defined as any
"group, organization, or association of four or more
people, usually under the age of [twenty-five], " who
"call themselves by a group name and various common
identifying signs, symbols or clothing items."
Id. "Other than a brief mention of vandalism,
[the expert] did not discuss any criminal activity by Tent
City or other similarly-structured groups." Id.
at 267. There was no evidence presented at trial that the
motivation for the shooting had been gang-related.
close of evidence, both Akara and Green moved for a finding
of not guilty, contending that the Commonwealth had not put
forward sufficient evidence to support a finding of a joint
venture. Id. at 247. The trial court denied these
motions. Id. During closing arguments, the
prosecutor argued that the jury could find a joint venture
because the "Boston police, the District Attorney's
office, and the Suffolk Grand Jury had heard sufficient
evidence to charge not one, but two people."
Id. at 262. As part of the final jury charge
"following shortly after closing argument, " the
judge explained to the jury that "[t]he fact that
somebody is indicted of a crime is not evidence that they
committed a crime and should not be considered for that
the alternative theories presented by the Commonwealth, the
defendants requested a jury instruction stating that "if
the jury could not determine who acted as principal and who
as a joint venturer, [the jury] had to find beyond a
reasonable doubt that a joint venture existed."
Id. at 258. The court declined to give the requested
instruction. Instead, the court charged that jury that, to
find the defendants guilty on the basis of joint venture,