Heard: February 8, 2019.
found and returned in the Superior Court Department on April
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.
F. Shaw, Jr., for the defendant.
M. Campbell, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Lowy, & Kafker, JJ.
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.
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.
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.
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. Duncan was shot in the head and died the
next day; Grant was shot in the ankle and survived. The
perpetrators fled on foot.
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.
fifty minutes after the shooting, police stopped the
defendant and Daughtry 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.
pat frisked the two men,  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."
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
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.
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.
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
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
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.
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
trial, a number of police officers testified to statements
made by Daughtry after the shooting. 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.
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,
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.
Joint venturer statements.
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). 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
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.
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. See Rakes, 478 Mass. at 37.
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.
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
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. 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.
statements reveal that his interests at that point were no
longer "closely bound together" with those of the
defendant (citation omitted) . 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
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.
Truth of the matter asserted.
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).
Daughtry and the defendant gave conflicting statements
suggests that one or both men were lying, although it does
not suggest which. 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. 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").
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. 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.
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).
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." Imbert, supra, quoting
Williams v. Illinois, 567 U.S. 50, 84 (2012).
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. As Daughtry did not testify at the
defendant's trial, admission of his statements was barred
by the Sixth Amendment.
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.
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"