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Commonwealth v. Don

Supreme Judicial Court of Massachusetts, Suffolk

December 20, 2019

COMMONWEALTH
v.
AMOS DON.

          Heard: September 10, 2019.

          Indictments found and returned in the Superior Court Department on March 30, 2010. The cases were tried before Christine M. McEvoy, J.; a motion for postconviction relief, filed on April 25, 2017, was considered by Peter M. Lauriat, J., and a motion for reconsideration was considered by Christine M. Roach, J.

          Chauncey B. Wood for the defendant.

          Kathryn E. Leary, Assistant District Attorney (Ian Polumbaum, Assistant District Attorney, also present) for the Commonwealth.

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

          KAFKER, J.

         On August 25, 2009, Erica Field and Shameek Garcia were shot in the head at close range as they sat in a parked vehicle in a lot in the Dorchester section of Boston. Garcia survived; Field did not. A jury convicted the defendant, Amos Don, of murder in the first degree on the theory of deliberate premeditation, and related charges, in connection with the shootings.[1] Before us is the defendant's consolidated appeal from his convictions, from the denial of his motion for a new trial, and from the denial of a motion to reconsider the denial of his new trial motion. On appeal, the defendant makes three primary claims: (1) that newly discovered medical records warrant a new trial, or at least an evidentiary hearing on the defendant's postconviction motions; (2) that trial counsel was constitutionally ineffective (on several grounds, discussed infra); and (3) that the trial judge committed reversible error in admitting evidence of the defendant's prior, failed attempts to purchase a firearm. For the reasons discussed infra, we reject the defendant's arguments, we affirm his convictions and the denial of his postconviction motions, and we decline to grant extraordinary relief pursuant to G. L. c. 278, § 33E.

         Background.

         1. Facts.

         We summarize the facts the jury could have found, reserving certain topics for later discussion. In the summer of 2009, the murder victim, Field, was living in Lewiston, Maine, with her eleven year old daughter, Monica, and her long-term boyfriend, Garcia, who was also known as "JoJo." In early August of that year, Field and Garcia met the defendant, whom they knew as "Ace," at a house in Lewiston where people would go to buy drugs.

         The defendant had traveled to Lewiston from his home in Boston in order to sell cocaine and heroin. Garcia and the defendant began to work together, as Garcia knew the Lewiston illegal drug market and the defendant did not. This was mainly in connection with the defendant's efforts to sell cocaine, as Garcia was less familiar with the market for heroin. Garcia also arranged for the defendant to stay in a spare bedroom in the home of Donald and Deann Dyer in Lewiston in exchange for cocaine. The defendant kept his supply of cocaine and heroin in his bedroom at the Dyers' home.

         In early August 2009, the defendant attempted to have a woman named Christine Gilleland purchase three firearms from a gun shop in Poland, Maine. However, her application to purchase the firearms was denied.

         About a week before the murder, the defendant discovered that his supply of heroin -- for which he still owed his Boston suppliers about $6, 000 -- was missing. The defendant initially blamed Samantha Leonard, a heroin user and a friend of Field and Garcia. Leonard had recently spent time with the defendant in his bedroom, and when the two were leaving, she had made a point of returning to the room alone to retrieve her cellular telephone. The defendant told Garcia "that if it took him a year or two, he'd put that bitch [Leonard] in a box." The next day the defendant confronted Leonard about the missing heroin, telling her in a "very scary" tone that he "wanted his shit." Leonard told the defendant "he was looking at the wrong person that was sitting there smoking his money," referring to Garcia.[2]

         Around this time, the defendant made a second attempt to purchase a firearm, this time from Stephen Waterman. Waterman sold the defendant a .45 caliber semiautomatic with a missing clip. The defendant asked Waterman if he could put a bullet in the chamber without the clip; Waterman said no. Waterman told the defendant that a clip had been ordered and was waiting at a gun shop, but when the defendant went with Deann Dyer to the gun shop to retrieve it, the clip could not be located. The defendant also asked an employee of the gun shop whether a bullet could be loaded in the chamber manually, without a clip; the employee said it could not.

         Shortly after that, the defendant and Garcia discussed traveling to Boston so that the defendant could refill his supply of cocaine and try to get an extension to pay his supplier back for the missing heroin. Garcia borrowed a red Ford sedan from an acquaintance in exchange for some cash and cocaine. Because Garcia did not have a valid driver's license, Garcia and the defendant decided that Field should accompany them.

         On August 25, 2009, the three drove from Lewiston to Boston in the red Ford sedan. Upon arriving in Boston, they went to the defendant's home. The defendant spent some time on the telephone trying to contact his suppliers. A few hours later, the defendant said he had "found somebody," and they got in the red Ford and began driving to a different location. Garcia drove, with Field in the front passenger seat and the defendant in the rear driver's side seat. The defendant told Garcia where to go, and at some point, they began following a silver sedan. During this time, Garcia gave the defendant the cash that he had brought to spend on the cocaine.

         The two vehicles came to a stop in a lot on Norwell Street. The defendant got out of the red vehicle and got into the back seat of the silver vehicle. He stayed in the silver vehicle for a few minutes before returning to the red Ford and getting in the back seat on the driver's side. The last thing Garcia remembers is turning to his right toward the back seat and asking the defendant if they were "all set."

         People in a nearby house heard three gunshots ("pop, pop," then a pause, then "pop") and called the police. Sergeant Detective Sean Doherty responded to a call for shots fired at the lot on Norwell Street. Upon arriving, he observed Garcia standing in the doorway of the front driver's side door of the red Ford. Garcia walked around the front of the vehicle to the front passenger side and dove head first onto Field's lap. Field appeared nonresponsive. Garcia then fell out of the vehicle onto his knees and fell backward onto the ground.

         Doherty asked Garcia, "Who shot you?" Garcia said, "Ace." Doherty then asked what Ace's real name was and where he lived. Garcia kept repeating the word, "Ace." His mouth then began to fill with blood. Doherty stopped asking questions at that point because "[he] realized [he] wasn't going to get any different response from [Garcia] and based on his condition, there was no need to go any further."

         A review of cellular telephone records, including cell site location information, confirmed that the defendant traveled from Maine to Boston on August 25, and that, once in Boston, he traveled from the neighborhood where he lived to the area of the crime at the time of the murder. Fingerprint analysis of the red Ford showed two of the defendant's fingerprints on the rear driver's side window. Ballistics evidence showed that a bullet recovered from Field's body and one recovered from the front passenger's side door of the red Ford were fired from the same firearm.

         The medical examiner, Mindy Hull, testified about Field's gunshot wounds. Wounds to Field's left hand and left nostril could have been caused by a single bullet as Field held her left hand up to her face. A second bullet entered Field's head behind her left ear, passed through the temporal bone of her skull and through the left side of the cerebellum, bisecting her brain stem (the bullet fragmented during this time), until the major portions of the bullet came to a stop in the right side of the cerebellum. Hull testified that the wounds to Field's nose and hand showed "stippling," and that the wound behind Field's left ear had "soot deposition," indicating that the firearm was shot within two or three feet of the victim.[3]

         Based on a review of medical records, Hull also discussed Garcia's injuries, explaining that Garcia suffered "multiple maxilla facial fractures" to the right side of his face and "traumatic contusion of the right temporal lobe" of his brain. A portion of Garcia's medical records themselves were admitted in evidence. Those records describe his injuries as "Principle Diagnosis: GSW to face," and "GSW to right face." The records also describe Garcia as having been "shot in the head" with "bullet fragments within the sinus and nasal cavities."

         In the days following the murder, the defendant displayed consciousness of guilt through his words and actions. The defendant's cellular telephone was on his sister-in-law's account. On August 26, the defendant asked his sister-in-law to change his telephone number, telling her that he was being harassed by his son's mother, Fabiola Ramponeau. The day after the murder, the defendant visited Ramponeau at work and brought her sneakers for their son that he had bought during the trip down from Lewiston. He also stayed with Ramponeau twice during the week after the murder.

         When Misty Deschaine, a close friend of Field's, called the defendant on the day of the murder to find out what had happened to Field and Garcia, the defendant denied knowing who Field and Garcia were. Over the subsequent days, Deschaine continued to call the defendant; at one point, she confronted him about the murder, and he stated, "you cannot play with someone else's money ... or something bad will happen."

         Separately, when confronted by Gilleland about whether he had shot Garcia and Field, the defendant responded, "they would have to prove it"; and after Gilleland told him she might be pregnant with his child, he told her that "[she] didn't want to have a kid with somebody like him cause [she] knew what type of person that he was, and that he could end up doing life in jail" and that "he might have to kill innocent people."

         A grand jury indicted the defendant for murder in violation of G. L. c. 265, § 1; aggravated assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A (b); armed assault with intent to murder, in violation of G. L. c. 265, § 18 (b); and unlicensed possession of a firearm, in violation of G. L. c. 269, § 10 (a.) . Following a jury trial, the defendant was convicted on all four indictments. As to Field's killing, the jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation. The judge sentenced the defendant to life in prison for the murder and to concurrent sentences of from thirteen to fifteen years for the aggravated assault and battery, from fifteen to twenty years for the armed assault with intent to murder, and from four years to four years and one day for the unlicensed possession of a firearm.

         2. Postconviction proceedings.

         The defendant timely appealed, and postconviction counsel was appointed. On April 27, 2017, the defendant filed a motion for a new trial in this court, which was remanded to the Superior Court. In the motion, the defendant argued that his trial counsel provided constitutionally ineffective assistance for three main reasons: (1) the failure to utilize evidence that Garcia was an informant to rebut the prosecutor's argument that no one other than the defendant had a motive to shoot Garcia; (2) the failure to challenge the reliability of Garcia's statements to the police immediately after being shot in the head; and (3) the failure to challenge expert testimony presented by the Commonwealth regarding the trajectory of a bullet that became lodged inside the front passenger's side door of the vehicle in which the victims were seated.

         After filing the motion, postconviction counsel noticed that one of the Commonwealth's pretrial discovery notices suggested that more medical records existed than those that had been produced to the defendant. Postconviction counsel alerted the Commonwealth, which determined that its file contained the same, underinclusive set of records that had already been produced to the defendant. Postconviction counsel moved for discovery of the additional records. On October 13, 2017, the regional administrative justice ordered production of Garcia's ...


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