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Evans v. Ryan

United States District Court, D. Massachusetts

November 13, 2017

KELLY RYAN, Respondent.



         On October, 26, 2015, Phillip Pope Evans petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Docket No. 1 (the “Petition”). On June 12, 2011, Evans was convicted of manslaughter, armed assault with intent to kill, and carrying a firearm without a license. He is currently serving a fifteen-to-twenty-year sentence in a Massachusetts correctional facility. Respondent Kelly Ryan (“Respondent”) opposes the Petition. Docket No. 31.

         Evans raises one claim in the Petition, alleging that his trial counsel did not provide him with constitutionally required effective assistance of counsel. Specifically, Evans contends that his counsel failed to consult and retain an expert in adolescent brain development who allegedly would have shown that Evans used reasonable force in exercising self-defense. Docket No. 1 at 5; Docket No. 2 at 23. For the reasons set forth below, I recommend that the District Judge DENY the Petition.


         Evans and co-defendant Oderto Mejia were charged and tried on five counts: murder in the first degree; carrying a firearm without a license; and three counts of armed assault with intent to murder. Supplemental Answer (“S.A.”) 1-4. On June 2, 2011, after a month-long trial, a jury acquitted Evans and Mejia of first-degree murder, but found them guilty of the lesser-included offense of manslaughter, one count of the lesser-included offense of armed assault with intent to kill, and carrying a firearm without a license. S.A. 11, 197. The jury returned not guilty verdicts on the two remaining armed assault with intent to murder charges. Id.

         On January 8, 2013, Evans filed a motion for a new trial and raised the same claim that forms the basis of this Petition-ineffective assistance of counsel. S.A. 131-196. On May 28, 2013, the trial court denied Evans' motion. S.A. 308-314. Subsequently, Evans appealed the denial of his motion for a new trial, and it was consolidated with his prior appeal of his conviction. S.A. 14. On February 6, 2015, the Appeals Court affirmed Evans' conviction and the order denying his motion for a new trial. S.A. 845-846. The Massachusetts Supreme Judicial Court (“SJC”) declined to hear Evans' case on April 17, 2015. S.A. 35.

         On October 26, 2015, Evans filed the instant Petition and Memorandum of Law in Support of His Writ of Habeas Corpus. Docket No. 1; Docket No. 2. On May 18, 2016, the Respondent filed an opposition. Docket No. 31.


         In affirming Evans' manslaughter conviction, the Appeals Court implicitly adopted the trial judge's factual findings regarding the commission of the crime and subsequent apprehension of Evans and his co-defendants. This Court may supplement the trial judge's presumptively correct factual findings with other record facts consistent with those findings. See Yeboah-Sefah v. Ficco, 556 F.3d 53, 62 (1st Cir. 2009); Healey v. Spencer, 453 F.3d 21, 22 (1st Cir. 2006).

On August 30, 2006, the defendants along with Steven Gilchrist, shot at and killed James Darosa as he sat in a Honda Civic on Clarence Street in Brockton, Massachusetts.[1] Mejia was nineteen years old and Pope Evans was seventeen years old at the time of the incident. James Darosa was sitting inside of the Honda Civic with his brother, Kevin Darosa, and two friends, Ruben Andrade and Decio Moeda. They were inside of the car smoking marijuana. Shortly after 10:00 p.m. that night, James Darosa opened the rear driver's side door to the Honda Civic. Ruben Andrade testified that he heard James Darosa scream, and he heard gunfire hit the car.[2] Two bullets struck James Darosa, and one bullet killed him. Ruben Andrade was also shot, but he survived.
Pope Evans and Mejia claimed that as they were walking on Clarence Street, they saw a car ahead of them and noticed that the car's left rear passenger door was opened. They claimed that they heard some noises and saw and heard gunfire coming at them from the car. Pope Evans and Mejia eventually admitted to the police that they both fired their guns at the Honda Civic on the night at issue, but only in self-defense after they believed they were being shot at. Mejia testified at trial and claimed that he heard two shots and saw two flashes from what he believed was a firearm held by someone in the Honda Civic. Mejia said that he was afraid he was going to die, so he shot back, fired four or five times, and ran.

S.A. 308-309.

         After the shooting, Evans, Mejia, and Gilchrist fled to Anse Saint Louis' nearby apartment, where Evans asked Saint Louis for a place to “lay low.” S.A. 2450-2452. Saint Louis refused to allow the men into his apartment, but told them they could stay in his backyard. S.A. 2455. The following morning, police apprehended Evans, Mejia, and Gilchrist. S.A. 2425-2437. During the arrest, police recovered a .32 revolver from Evans and a loaded .44 magnum revolver and .32 Derringer pistol from Mejia. S.A. 2266-2269; 2594-2595. Ballistics evidence recovered from the scene of the shooting and from behind Saint Louis' apartment was consistent with the guns found on Evans and Mejia. S.A. 2752-2779. A bullet recovered from Darosa's body also was consistent with having been fired from a .44 magnum gun, similar to the gun recovered from Mejia. S.A. 2765-2767.

         At trial, Evans and Mejia advanced a Commonwealth v. Bowden, 379 Mass. 472 (1980), defense, eliciting testimony on cross-examination that investigators had not tested the victim's clothing and hands for gunshot residue, nor had they tested the fabric of the Honda's seats.[3] S.A. 2494-2495, 2503. Attorneys for both defendants also presented evidence that allegedly showed police may have missed a bullet that pierced a drainage downspout located across the street from the shooting. The attorneys argued that this purported bullet hole supported their theory of self-defense because it suggested that before he was killed, the victim may have fired a shot at Evans and Mejia. S.A. 1911-1916. However, the origin of the hole was disputed, and no gun was ever recovered from the Honda or from any of the persons in it. S.A. 2358, 2600-2606.

         After Evans was convicted, he, together with Mejia, filed a motion for a new trial, claiming that his attorney's failure to consult and retain the services of an adolescent brain development expert deprived him of his constitutional right to effective assistance of counsel. S.A. 309-10. They argued that such an expert would have presented evidence showing that the two men used a reasonable amount of force in exercising self-defense in light of their age and corresponding brain development. S.A. 310. In denying their motions, Massachusetts Superior Court Judge Richard Chin found that the defendants' trial counsel were “highly effective in representing the defendants and pursued an effective and reasonable strategy in their defense, that ultimately the jury, at least partially, agreed with.” S.A. 313. While Evans contended that his expert would have shown that Evans' use of force should have been considered in light of a “reasonable adolescent standard, ” Judge Chin noted that Evans cited no case, and that he was unaware of any case, that would suggest the jury should have considered Evans' actions under such a standard. Id. Further, Judge Chin found that even if the jury had heard evidence regarding adolescent brain development, it would not have affected the outcome of the trial because any expert testimony would have been relevant only to Evans' subjective beliefs and would not have addressed the objective reasonableness of his actions. Id.

         Before the Appeals Court, Evans renewed his ineffective assistance of counsel claim. In presenting his argument, Evans relied on three Supreme Court decisions, which found that in certain legal contexts juveniles are less culpable for their crimes than adults.[4]Commonwealth v. Evans, 87 Mass.App.Ct. 1104 (2015) (unpublished memorandum and order pursuant to Rule 1:28) (table, text in Westlaw). As such, Evans argued, by way of analogy from the so-called battered woman's syndrome, that juveniles are different from adults in the same way that individuals who have suffered from abuse are different from those who have not; therefore, juveniles should be entitled to expert testimony and jury instructions on those differences. Id. at *2. While the Appeals Court opined that the defendant put forth an “interesting and potentially important argument, ” the Court found that the argument “failed on its procedural posture.” Id. The Appeals Court held that in order for an attorney's representation of a defendant to be constitutionally ineffective, it must fall below what might reasonably be expected of an ordinary fallible lawyer, and the Court found that Evans had failed to satisfy this burden. Id. In support of its decision, the Appeals Court noted that at the ...

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