Heard: December 4, 2018.
found and returned in the Superior Court Department on March
cases were tried before Richard E. Welch, III, J.
L. Fishman for the defendant.
M. Tilley, Assistant District Attorney (David J. Fredette,
Assistant District Attorney, also present) for the
Present: Kinder, Neyman, & Desmond, JJ.
February 28, 2013, Courtney Jackson was shot twice in the
back as he boarded a bus at the Massachusetts Bay
Transportation Authority (MBTA) station on Dudley Street in
the Roxbury area of Boston. A Superior Court jury convicted
the defendant, Jamel Bannister, of murder in the second
degree and unlawfully carrying a firearm based on evidence
that he aided and abetted Brian Cooper in the
shooting. On appeal, the defendant claims that his
convictions should be reversed because (1) the police lacked
reasonable suspicion to stop him after the shooting and
evidence seized thereafter should have been suppressed, (2)
there was insufficient evidence of his intent to aid and abet
Cooper, (3) he was prejudiced by the erroneous admission of
prior bad act evidence, (4) the judge gave erroneous jury
instructions that created a substantial risk of a miscarriage
of justice, and (5) he was deprived of the effective
assistance of counsel when trial counsel failed to request a
so-called Daubert-Lanigan hearing on
thermal imaging evidence.
defendant also raises three issues from which counsel has
found it necessary to disassociate himself, in accordance
with Commonwealth v. Moffett, 383 Mass.
201, 203-209 (1981) . All three are based on a claim that
trial counsel was ineffective. First, the defendant faults
trial counsel for failing to object to the prosecutor's
closing argument. Second, he claims that trial counsel should
have moved to suppress his statement to the police. Finally,
the defendant argues that trial counsel should have
challenged two jurors for cause. Discerning no error in the
denial of the motion to suppress, the trial, or trial
counsel's performance, we affirm.
summarize the trial evidence in the light most favorable to
the Commonwealth. See Commonwealth v. Latimore, 378
Mass. 671, 677-678 (1979). At all relevant times, the
defendant and Cooper were members of affiliated street gangs
while the victim was a member of a rival gang. The defendant
and the victim had a history of confrontation, which included
fist fights while the two were incarcerated in 2008 and 2009.
9:48 P..M. on February 28, 2013, the defendant and Cooper
approached the victim on a bus platform at the Dudley Street
MBTA station (bus station). Video surveillance from the
MBTA's cameras shows the defendant and Cooper walking
side-by-side onto the platform. They stopped and engaged the
victim in conversation. Moments later, as the victim walked
away and began to board a bus, the defendant and Cooper each
pulled a hand from his pocket, raised an arm, and stepped
toward the victim. Cooper fired two shots into the
victim's back while the defendant, standing behind
Cooper, lowered his arm to his side. The defendant and Cooper
then turned and ran from the station toward Washington
Street. A witness saw the defendant put a gun into his pocket
as he ran. The victim collapsed in the bus and later died
from his injuries.
and the defendant turned left onto Washington Street where
they were confronted by Boston police Officers Dominic
Columbo and Wilfredo Coriano, who were in the area. The
officers responded to the gunshots by drawing their firearms
and running toward the bus station. As Cooper and the
defendant ran toward the officers, Coriano pointed his
firearm at Cooper and ordered him to the ground. Cooper
complied, and Coriano recovered a revolver that Cooper was
holding behind his back. Coriano observed the defendant
"sliding to the right" and told Columbo to stop
him. Columbo pointed his firearm at the defendant and ordered
him to the ground. The defendant responded, "[F]uck
you," and fled. Columbo gave chase and observed the
defendant increase his speed as he passed a bank parking lot.
Shortly thereafter, the defendant was apprehended by two
other officers. He struggled with them and claimed that
someone was shooting at him.
the defendant was detained, officers retraced his steps and
discovered a small bag of what was later determined to be
cocaine. They also found a loaded semiautomatic firearm on
the ground inside the bank parking lot, at the location where
the defendant had increased his speed. At 10:06 P..M., an
officer took a photograph of the firearm using a thermal
imager. The image showed that the firearm was warmer than the
pavement. A second recorded image taken ten minutes later
revealed that the firearm was still warm, but had lost heat.
defendant was transported to the police station where he gave
a recorded statement. He denied knowing Cooper or being
involved in the shooting. The theory of his defense was that
he was not involved in the shooting and ran, like everyone
else at the bus station, because he was scared that someone
was shooting at him.