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Commonwealth v. Wardsworth

Supreme Judicial Court of Massachusetts, Suffolk

June 19, 2019


          Heard: February 8, 2019.

         Indictments found and returned in the Superior Court Department on April 18, 2008.

         A pretrial motion to suppress evidence was heard by Frank M. Gaziano, J.; the cases were tried before Stephen E. Neel, J.; and a motion for a new trial, filed on November 3, 2014, was considered by Linda E. Giles, J.

          Robert F. Shaw, Jr., for the defendant.

          Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Lowy, & Kafker, JJ.

          LENK, J.

         On the evening of September 20, 2007, two men opened fire at the Academy Homes residential complex, killing Urel Duncan and injuring Kevon Grant. The defendant and Shawn Daughtry subsequently were indicted on charges of murder in the first degree, G. L. c. 265, § 1; armed assault with intent to murder, G. L. c. 265, § 18 (b); and firearm offenses pursuant to G. L. c. 265, § 10 (a), (h), and (n), in conjunction with the shooting.

         The Commonwealth's theory at trial was that the defendant was a member of the Walnut Park gang, and that both he and Daughtry previously had been shot at by members of the rival Academy Homes gang. The men went together to the Academy Homes complex for the purpose of retaliating; they intended to shoot the first people they saw. A Superior Court jury found the defendant guilty of all charges.[1]

         Of the claims raised by the defendant on appeal, we determine that four constitute error: (1) Daughtry's statements should not have been admitted against the defendant; (2) the Commonwealth's gang expert gave improper testimony; (3) police witnesses should not have given their opinions as to the identity of individuals depicted in surveillance footage; and (4) the prosecutor engaged in impermissible argument during closing. In light of at least the first three trial errors, we conclude that the defendant's convictions must be vacated and set aside, and the matter remanded to the Superior Court for a new trial. We determine, however, that there was no error in the motion judge's denial of the defendant's motion to suppress.


         We recite the facts the jury could have found, in the light most favorable to the Commonwealth, reserving additional facts for later discussion. See Commonwealth v. Platt, 440 Mass. 396, 397 (2003). Around 9:20 P.M. on September 20, 2007, two men walked up a street in the Academy Homes housing complex in the Roxbury section of Boston. One wore a gray hooded sweatshirt; the other wore a black hooded sweatshirt. Upon seeing four individuals sitting on a porch, the two men each pulled out a gun. Three to four shots were fired.[2] Duncan was shot in the head and died the next day; Grant was shot in the ankle and survived. The perpetrators fled on foot.

         Police officers arrived within minutes of the shooting. After speaking with witnesses, police began to search for two men wearing gray and black hooded sweatshirts. Police knew that the Academy Homes housing complex was the territory of the Academy Homes gang, and that there were rival gangs in the area. Accordingly, officers canvassed the territory of several rival gangs, including the Walnut Park area, which was associated with a gang known as the Walnut Park Dogs.

         Approximately fifty minutes after the shooting, police stopped the defendant and Daughtry[3] coming out of a building in Walnut Park. The defendant was wearing a gray hooded sweatshirt with a large zipper running down the middle, a white T-shirt, jeans, and light-colored sneakers. Daughtry was wearing a black hooded sweatshirt, black pants, and black shoes.

         Police pat frisked the two men, [4] separated them, and questioned them. While each denied involvement in the shooting, they gave conflicting statements about where they had been at that time. Daughtry claimed to have met with the defendant and a third individual, "Dee," fifteen minutes earlier. The defendant said that he had spent the afternoon with Daughtry, and that the two had just come from visiting the defendant's "Uncle Mike."

         Police learned that the shooting had been captured on surveillance footage by an Academy Homes security camera. The men depicted on the security footage wore clothing similar to that which the defendant and Daughtry were wearing when they were stopped by police, and were of approximately the same height and weight.[5]

         The defendant and Daughtry were transported to Boston police headquarters, where their hands and clothing were tested for gunshot residue. Daughtry's left hand tested positive; the defendant's hands and clothing tested negative. Both men were charged with murder in the first degree, armed assault with intent to murder, and firearms offenses. They were tried separately.

         The Commonwealth's theory at the defendant's trial in November and December of 2009 was that the defendant and Daughtry went to the Academy Homes complex to retaliate for prior shootings in which they had been the targets. In February 2007, the defendant was shot and injured near his home. Seven months later, on September 10, 2007, Daughtry was shot at in the "general area" of Walnut Park.

         Detective Sixto Merced of the Boston police department testified as a gang expert. He explained that, at the time of the shooting, the Walnut Park and Academy Homes gangs had an ongoing rivalry. Police believed that the defendant was a member of the Walnut Park gang, but they did not believe that Daughtry was a gang member. Although the victims were not members of any gang, they lived next door to members of the Academy Homes gang.

         Prior proceedings.

         The defendant was convicted of all charges. In November 2014, he filed a motion for a new trial. The defendant's appeal from the denial of that motion was consolidated with his direct appeal.

         On appeal, the defendant points to numerous asserted errors. He argues that (1) Daughtry's statements to police were erroneously admitted as evidence against him; (2) the Commonwealth's gang expert impermissibly concluded that the defendant was a member of a gang, and his descriptions of general gang activities were unfairly prejudicial; (3) multiple police witnesses improperly opined that the individual depicted in security footage was the defendant; (4) the prosecutor engaged in impermissible argument in closing; (5) the defendant's motion to suppress should have been allowed; (6) trial counsel was ineffective because he did not challenge certain testimony relating to gunshot residue testing; (7) trial counsel did not properly challenge misleading evidence; (8) trial counsel should have called a particular witness; and (9) the denial of the defendant's postconviction motions for funds and an evidentiary hearing was error. With respect to the first four categories of error, we agree.

         Standard of review.

         Where the defendant objected, we review to determine whether there was error and, if so, whether "there is a reasonable possibility that the error might have contributed to the jury's verdict," or whether we can be assured that the evidence "did not influence the jury, or had but very slight effect" (citations omitted). See Commonwealth v. Sullivan, 478 Mass. 369, 376 (2017); Commonwealth v. Carriere, 470 Mass. 1, 7 (2014). Where the preserved error is constitutional, "we evaluate the admission of constitutionally proscribed evidence to determine whether it was harmless beyond a reasonable doubt." See Commonwealth v. Nardi, 452 Mass. 379, 394 (2008). Where the defendant did not object, we review for a substantial likelihood of a miscarriage of justice. Carriere, supra at 8, citing Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014). "In analyzing a claim under the substantial likelihood standard, we review the evidence and case as a whole and consider whether any error made in the course of the trial was likely to have influenced the jury's conclusion." Commonwealth v. Berry, 457 Mass. 602, 618 (2010), S.C., 466 Mass. 763 (2014).


         1. Coventurer statements.

         At trial, a number of police officers testified to statements made by Daughtry after the shooting.[6] They pointed out inconsistencies between Daughtry's statements about his activities near the time of the shooting and the defendant's statements. From this, the prosecutor argued that the statements proved the two men were lying.

         The first statement was made within approximately one hour of the shooting, when Daughtry told Sergeant Thomas Teahan of the Boston police department that he had been in the area "a short time," and had met with the defendant only fifteen minutes earlier. Daughtry said that he and the defendant briefly had been at the home of someone named "Dee," and he provided an address. The second statement was given several hours later, at Boston police headquarters; at that time, Daughtry told Detective Dennis Harris that he had been "smoking a blunt," alone, at the time of the shooting. He heard four or five gunshots, walked "out front," and encountered the defendant walking down the street with Dee. According to Daughtry, the two men were wearing gray and black hooded sweatshirts, respectively.[7]

         The defendant asserts that Daughtry's statements should have been excluded as hearsay, and also that their admission violated his rights to confrontation under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.[8]

         a. Hearsay.

         i. Joint venturer statements.

         Massachusetts recognizes a joint venture exemption to the hearsay rule. See Commonwealth v. Wood, 469 Mass. 266, 280 (2014); Mass. G. Evid. § 801(d)(2)(E) (2019).[9] Just as a defendant's statements are admissible against the defendant, so too are certain statements made by a defendant's coventurers. The exemption applies only where a defendant's coventurer makes a statement both "during the pendency of the cooperative effort" and "in furtherance of its goal" (citation omitted). See Commonwealth v. Raposa, 440 Mass. 684, 659 (2004).

         The rationale for the exemption is twofold. See Commonwealth v. Rakes, 478 Mass. 22, 36 (2017). First, while acting "in furtherance of" a "common object," coventurers are considered agents for one another. See Commonwealth v. Bright, 463 Mass. 421, 426 (2012), quoting Commonwealth v. Tivnon, 8 Gray 375, 381 (1857). Accordingly, where their interests are sufficiently aligned, a statement by a coventurer is "deemed equivalent to a statement by the defendant" (quotation and citation omitted). Carriere, 470 Mass. at 8. Second, the exemption derives from the policy considerations underpinning the prohibition against hearsay. Whereas courts generally are wary of the reliability of out-of-court statements, "[t]he community of activities and interests which exists among the coventurers during the enterprise tends in some degree to assure that their statements about one another will be minimally reliable." Commonwealth v. White, 370 Mass. 703, 712 (1976). See Rakes, supra at 37, 41.

         To introduce out-of-court statements as a statement of a joint venturer, the Commonwealth must show, by a preponderance of the evidence, that a joint venture existed between the declarant and the defendant, and that the statement was made in furtherance of the joint venture, while the joint venture was ongoing.[10] See Rakes, 478 Mass. at 37.

         It is well established that statements made after a joint venture has ended are not admissible under the hearsay exemption. See Commonwealth v. Winquist, 474 Mass. 517, 522 (2016); Commonwealth v. Andrews, 403 Mass. 441, 452 (1988). To determine whether a joint venture has ended, our inquiry "focuses not on whether the crime has been completed," Carriere, 470 Mass. at 10, but on whether the coventurers' interests are still "closely bound together, tending to ensure the reliability of their statements" (citation omitted). See Commonwealth v. Mavredakis, 430 Mass. 848, 863 (2000). When a joint venture ends, "there is a dispersion of interests, and motives of self-preservation, not to speak of malice or spite, may take over." Commonwealth v. Santos, 463 Mass. 273, 291 (2012), quoting White, 370 Mass. at 712.

         In some cases, statements made after the commission of a crime nonetheless may continue to advance the goals of the joint venture. See Carriere, 470 Mass. at 11. For example, where coventurers meet to align their alibis or plan to evade capture, the statements they make to one another may be part of an ongoing joint venture. See, e.g., Commonwealth v. Burton, 450 Mass. 55, 63 (2007) (meeting to discuss what had happened and where murder weapon was hidden). See also White, 370 Mass. at 709 n.8. Such was not the case here.

         Daughtry's first statements were made to police officers approximately one hour after the shooting. While Daughtry placed himself elsewhere at the time of the shooting, he produced no such alibi for the defendant.[11] In his second statement, Daughtry claimed that, after he heard gunshots, he walked around a building and encountered the defendant and a man named "Dee" on the street. At the time of the interview, Daughtry already had been informed that police sought two suspects for the shooting, one wearing a "gray hoodie," the other wearing a "black hoodie." Daughtry described the defendant and Dee as having been dressed in gray and black hooded sweatshirts. In both statements, he insisted that he had not been with the men earlier in the evening.

         Daughtry's statements reveal that his interests at that point were no longer "closely bound together" with those of the defendant (citation omitted) .[12] Mavredakis, 430 Mass. at 863. Daughtry's description inculpated the defendant and Dee in the shooting, while attempting to exculpate himself. As the prosecutor urged in closing, "Clearly, . . . Daughtry wanted to distance himself from the defendant." "[N]either the 'pendency' nor the 'furtherance' requirement is met" where a coventurer shifts the blame to another defendant. See White, 370 Mass. at 711 (coventurer explicitly accused defendant of crime). See also Santos, 463 Mass. at 291 (error in admitting statements that were intended to exculpate declarant by inculpating defendant). Even if the statements could be said to evince an ongoing effort to cover up the crime, the effort "was not a 'common' one." See White, supra. Contrast Raposa, 440 Mass. at 690-691 (defendant and coventurer "continued to cooperate" where they contacted police together and shared mutual goal of silencing witnesses, and coventurer made statements "in an attempt to divert [police] attention from himself and the defendant"); Mavredakis, supra at 863 n.17 (coventurers told police defendant was not at scene of crime).[13]

         As Daughtry's statements were not made during and in furtherance of a joint venture, the judge erred in allowing them to be introduced under the joint venture exemption to the hearsay rule.[14]

         ii. Truth of the matter asserted.

         In the alternative, the Commonwealth argues that Daughtry's statements were not offered for their truth, but, rather, to demonstrate that Daughtry and the defendant were lying. Where no exception applies, the rule against hearsay prohibits the admission of out-of-court statements offered to prove the truth of the matter asserted. See Mass. G. Evid. § 801(c)(2) (2019). Statements offered for a nontruth purpose are not hearsay. See Commonwealth v. Keown, 478 Mass. 232, 245 (2017), cert, denied, 138 S.Ct. 1038 (2018).

         That Daughtry and the defendant gave conflicting statements suggests that one or both men were lying, although it does not suggest which.[15] If the Commonwealth could have established that Daughtry's statements were false, and that they were made in coordination with the defendant, the statements might have been admissible for the nontruth purpose of showing that the two men conspired together, or shared consciousness of guilt.[16] Cf. Commonwealth v. Pytou Heang, 458 Mass. 827, 854 (2011) (statement of codefendant admitted for "falsity and for its similarity to the defendant's statements"); Commonwealth v. Brum, 438 Mass. 103, 116-117 (2002) (coventurer's statement admissible to show he had coordinated with defendant to give "identically false accounts of the same precise details").

         The statements, however, were not admitted for a nontruth purpose, and the judge did not instruct the jury that Daughtry's statements could not be considered for their truth.[17] See Commonwealth v. Purdy, 459 Mass. 442, 453 (2011) (defendant entitled to limiting instruction where Commonwealth offered out-of-court statement for nontruth purpose). See also Commonwealth v. Caillot, 454 Mass. 245, 255-256 (2009), cert, denied, 559 U.S. 948 (2010) (admission of statements without limiting instruction was error where statements reasonably might be considered for their truth). To the contrary, the judge instructed that the statements could be used against the defendant if the Commonwealth established evidence of a joint venture. Accordingly, the jury improperly could have considered the statements for their truth.

         b. Confrontation clause.

         The defendant maintains that the admission of Daughtry's statements also violated the defendant's right to confront the witnesses against him. Where an individual does not appear at trial, that individual's "testimonial" out-of-court statements are not admissible against a criminal defendant absent unavailability and a prior opportunity for cross-examination. See Crawford v. Washington, 541 U.S. 36, 68 (2004).

         Testimonial statements are those made with the primary purpose of "creating an out-of-court substitute for trial testimony." See Commonwealth v. Imbert, 479 Mass. 575, 580 (2018), quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011). A statement made in response to police questioning is testimonial where "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." See Commonwealth v. Middlemiss, 465 Mass. 627, 633 (2013), quoting Davis v. Washington, 547 U.S. 813, 822 (2006). Compare Commonwealth v. Smith, 460 Mass. 385, 395 (2011) (statements were not testimonial where primary purpose was to aid officers in terminating ongoing emergency). The test is an objective one; we examine "the primary purpose that a reasonable person would have ascribed to the statement, taking into account all of the surrounding circumstances."[18] Imbert, supra, quoting Williams v. Illinois, 567 U.S. 50, 84 (2012).

         Here, Daughtry made statements to police in response to questions regarding his whereabouts, and those of the defendant, in relation to a shooting that the officers were investigating. The statements were not made to resolve an ongoing emergency or to procure medical aid. Contrast Middlemiss, 465 Mass. at 635-636 (purpose of 911 call was to intercept armed fugitive and procure medical treatment for shooting victim). The shooting had taken place more than one hour earlier, and police were investigating the alibis of potential suspects. In the circumstances presented here, the statements were testimonial.[19] As Daughtry did not testify at the defendant's trial, admission of his statements was barred by the Sixth Amendment.[20]

         c. Prejudicial effect.

         The defendant objected to the admission of Daughtry's statements as both hearsay and as a violation of his right to confrontation. With respect to hearsay, we review for prejudicial error. See Sullivan, 478 Mass. at 375-376. With respect to preserved constitutional error, we must vacate the conviction unless we are satisfied that the error was harmless beyond a reasonable doubt. See Nardi, 452 Mass. at 394.

         Throughout her closing argument, the prosecutor repeatedly emphasized the importance of Daughtry's statements. She claimed that the jury could made an "identification" of the perpetrators through "Daughtry's own statements." She also urged the jury to think about the two men's "completely contradictory" statements, ...

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