Supreme Judicial Court of Massachusetts, Plymouth
Heard: April 5, 2019
found and returned in the Superior Court Department on May 6,
cases were tried before Thomas F. McGuire, Jr., J.,
and a motion for a new trial, filed on December 21, 2015, was
heard by him.
F. Shaw, Jr., for the defendant.
Nathaniel Kennedy, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Lowy, Budd, & Cypher, JJ.
were fired into a crowd attending an outdoor baby shower in
Brockton around 11 P.M. on April 25, 2009. Multiple people
were injured, and one person was killed. A jury convicted the
defendant of murder in the first degree on a theory of
deliberate premeditation. We have consolidated the
defendant's appeal from his convictions with his appeal
from the denial of his motion for a new trial.
police Trooper Robert F. Clements, Jr., who was assigned to
the district attorney's office, testified at trial that
the defendant told police during two separate interviews that
he was picked up on the night of the shooting in the area of
a Dunkin' Donuts restaurant that was near the crime
scene, and next to which three people were observed jumping
into a back yard after the shooting. This testimony was
false. As demonstrated by the trooper's police reports
and transcripts of the defendant's interviews with
police, the defendant never told police that he was picked up
at or near Dunkin' Donuts. Because the Commonwealth's
erroneous elicitation of and failure to correct this false
testimony created a substantial likelihood of a miscarriage
of justice, we reverse.
recite pertinent facts the jury could have found, with an
emphasis on testimony about where the defendant was
"picked up" on the night of the shooting. The
Commonwealth's theory at trial was that the defendant
tried to kill the victim's boyfriend at a baby shower,
and that the defendant inadvertently killed the victim
instead. The defendant and the victim's boyfriend were
members of rival gangs, and the defendant made known that he
did not like the victim's boyfriend and "was going
to get him." The defendant was part of a group that
decided to target the victim's boyfriend. A member of
that group learned that the boyfriend was going to be at a
party on April 25, 2009, but after learning that the party
was a baby shower he said at a meeting in the week before the
shooting that they "shouldn't hit it." The
defendant responded that he still "wanted to do it"
and that he did not care "if it was a baby shower or
friend of the defendant electronically sent "instant
messages" to the defendant around 2 or 3 P.M. from the
April 25 baby shower, telling the defendant that the
victim's boyfriend was there. Shots were later fired from
the street into a crowd attending the baby shower around 11
P.M., killing the victim. Some witnesses to the shooting
thought there was one shooter, and others thought there were
more. Nobody at trial identified the defendant as a shooter.
resident of the area testified that she saw three people jump
into her back yard after she heard gunshots just before 11
P.M. on April 25, and that her back yard abuts a Dunkin'
Donuts. The Dunkin' Donuts is roughly a five-minute walk
from the crime scene.
defendant's marijuana dealer, David Barros, testified
that the defendant telephoned and asked for a ride on the
night of the shooting. Barros picked up the defendant around
11:30 P.M. When Barros asked the defendant whether the
defendant knew how many people had been shot at the baby
shower, the defendant said, "I don't know yet."
did not remember at trial where he picked up the defendant.
The trooper testified that Barros had told police that he
picked up the defendant near Dunkin' Donuts. Although
Barros testified that he did not remember telling police that
he picked up the defendant near Dunkin' Donuts, he
admitted that while he and the defendant were driving, they
stopped at a traffic light next to the Dunkin' Donuts and
saw "an unmarked police car pass by with the lights
trooper also testified that the defendant told police on two
occasions that Barros picked him up in the area of
Dunkin' Donuts. According to the trooper, the defendant
also told police that "when [the defendant] was in
[Barros]'s car in the area of Dunkin' Donuts, he had
seen police cars going by with their lights on."
four hours after the shooting, at around 3 A.M., the
defendant went to the house of the friend who had sent him
instant messages from the baby shower. The friend testified
that it was uncommon for the defendant to go to her house
around that time of the morning, and that although the
defendant was usually "hyper and jumpy," he was
more nervous than usual and "was a weird type of jumpy
and nervous." It seemed to the friend that the defendant
already knew about the shooting.
Commonwealth did not present a murder weapon, and bullets
found at the crime scene were not compared against any
particular firearm. However, the defendant was seen with a
.25 caliber firearm in the month before the shooting, and a
ballistics expert testified that the fatal bullet found in
the victim's body was consistent with .25 caliber
ammunition and that multiple .25 caliber cartridge casings
were recovered from the crime scene. Additionally, the
defendant was seen looking for the victim's boyfriend
with a .22 caliber handgun in the months after the shooting,
and there was testimony that the shots at the baby shower
sounded like they came from a .22 caliber handgun. Two days
after the shooting, the defendant was seen with bullets and a
revolver that was not fully loaded.
was evidence that the defendant confessed multiple times to
killing the victim. At a gathering after the shooting, the
defendant "jumped up and said he killed that
bitch." On cross-examination, however, a witness to the
defendant's outburst testified that after the defendant
said he "killed the bitch," "[e]veryone
start[ed] laughing" and one of the people present said,
"[H]e's joking." Additionally, the witness
admitted that the defendant had earlier told him that the
defendant had nothing to do with the shooting.
childhood friend of the defendant testified that the
defendant confessed multiple times to killing "[the
boyfriend]'s bitch." The friend testified on
cross-examination that he was "laughing at" the
defendant and "thought [the defendant] was joking"
at the time of the confessions. He also acknowledged that he
had told the grand jury it was in the defendant's nature
to "lie about things." However, on redirect
examination, the friend testified that he no longer ...