Com. v. Good

• Decision Date: 28 March 1991
• Parties: COMMONWEALTH v. John GOOD, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1127

568 N.E.2d 1127

409 Mass. 612

COMMONWEALTH v. John GOOD, Jr.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Dec. 4, 1990.

Decided March 28, 1991.

John J. Courtney, Malden, for defendant.

Patricia M. Darrigo, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

A jury in the Superior Court convicted the defendant of murder in the first degree by reason of deliberate premeditation and of unlawfully carrying a firearm. On appeal, the defendant claims error in: (1) the denial of his motions for required findings of not guilty; (2) the denial of his motion for dismissal of the indictments; (3) the denial of his motion in limine; (4) the restriction of his cross-examination of a Commonwealth witness; and (5) the prosecutor's closing argument. The defendant also requests relief under G.L. c. 278, § 33E (1988 ed.). We conclude that there is no basis for a new trial or for relief pursuant to G.L. c. 278, § 33E. Accordingly, we affirm the judgments of conviction.

A detailed recitation of the evidence at trial is necessary to a full analysis of the appeals before us. We start with an overview of the circumstances of the crimes, then we describe in more detail the Commonwealth's identification evidence.

A. Overview. The jury could have found the general circumstances of the crimes to be as follows. About noon on July 27, 1986, the victim, Robert Perry, was walking along Cambridge Street in Cambridge, near its intersection with Maple Avenue, when he was shot three times. A thin white man carrying a handgun ran from the location of the victim's body to a Pontiac automobile bearing Massachusetts registration plate number 104MND. The Pontiac sped away down Maple Avenue. At a nearby intersection, the driver of the Pontiac disregarded a stop sign and collided with another car. The front seat passenger in the Pontiac (a thin white man) then left the car and walked briskly away. None of the witnesses testifying to these facts actually observed the shooting of the victim. Nor was there any physical evidence linking the defendant to the Pontiac. The murder weapon was never found. The main issue at the trial, therefore, was identification.

B. Identification evidence. The Commonwealth offered the testimony of a number of witnesses as circumstantial evidence in support of the conclusion that the defendant was the gunman. Officer Edward Quinton of the Cambridge police testified that he saw the defendant in a Cambridge Street tavern in the early morning hours of the day of the shooting. The defendant was with two other people, one of whom, Gary Stewart, was the operator of the Pontiac that later that day left the vicinity of the shooting and was involved in the collision. ¹ Officer Quinton did not see the defendant leave the tavern and did not see him get into a car.

Frank Russell, Jr., who worked not far from where the shooting occurred, testified that he was walking down Cambridge Street at about 8 A.M., roughly four hours before the shooting. Russell had just walked past a parked car on which a cat was sitting when he heard two shots. He turned, saw that the cat had been shot, and that the front seat passenger in a passing Pontiac (registration number 104MND) was in the process of drawing in his arm through the open car window. The passenger held a handgun. Russell testified that the passenger was "skinny," but that the only description that he gave the police officer who responded to the scene was that "the driver was heavyset. That's all he asked me." The Commonwealth stipulated, however, that the officer would testify that Russell told him at the scene that "a heavy-built passenger" shot the cat.

Witnesses William Thomas and Thomas Scott were in the area of the shooting when it occurred. (Thomas was in his apartment; Scott was in a nearby park.) They testified about the events that they observed after hearing the sound of gunshots. Both saw a man running to the Pontiac (Thomas recorded the registration number); both saw the car speed down Maple Avenue. Thomas saw a gun in the man's hand; Scott said the man appeared to be carrying something. The two gave different descriptions of the man. Thomas described him as "skinny," with "dirty blond" hair, six feet tall, between 160 and 170 pounds, and wearing a striped, button-down shirt. Scott described him as five feet, nine inches tall, 175 pounds, with dark brown hair, and dark clothes. Although both witnesses identified the defendant at trial, there was evidence that both had difficulty identifying the man they had seen from photographic arrays. When Thomas first examined a police array of ten photographs, including one of the defendant, he was unable to make an identification. Scott also examined an array of photographs. He chose two photographs, one of the defendant and one of another man, and indicated that the man that he had seen had a combination of the features in both photographs.

Two other witnesses, Cheryl Berggren and Richard Rosen, were in the car that was struck by the fleeing Pontiac shortly after the shooting. Berggren testified that, after the collision, the front seat passenger in the Pontiac said to the operator words to the effect of, "I'm getting out of here," and began to walk away. The departing passenger was thin, "shorter than average," and had "very dark" hair. There was evidence that, like Thomas and Scott, Berggren also had some difficulty in choosing the defendant's photograph from a police array. After reviewing an array, she chose two photographs (including one of the defendant) as close; then, when pressed, she selected the photograph of another man, not the defendant. At trial, she could say only that the defendant "look[ed] like" the man that she saw walk from the car. Richard Rosen, the front seat passenger in Berggren's car whose eyeglasses were knocked off in the collision, described the passenger in the Pontiac as having dirty blond hair, and standing between five feet, six inches and six feet tall. Rosen looked at several police photographic arrays before the trial. When viewing the first of these arrays, Rosen did not select the defendant's photograph. In fact, he chose the photograph of another person in the array as looking most like the man he had seen. Like Berggren, Rosen made a somewhat qualified identification of the defendant at trial, saying that the defendant looked "very much like" the man he had seen at the collision site.

Three other witnesses who were walking near the intersection at the time of the collision also testified. Only one of the three identified the defendant at trial. ² Their descriptions of the man they had seen were different, and also differed somewhat from the descriptions given by the other witnesses.

Two police officers arriving on the scene of the shooting were allowed to testify to statements made to them by three additional eyewitnesses. ³ Susan Sung told Officer George P. Blair that she looked out her window after hearing shots and saw a tall, thin, blond-haired man run down Maple Avenue. The man was wearing baggy blue pants and had a gun in his hand. Gerard Michael told Officer Blair that he was about one block away on Cambridge Street when, after hearing several loud cracks, he saw an approximately six-foot tall blond man wearing blue trousers run down Maple Avenue. Linda Lundgren told Detective Francis X. Gutowski that she was outside near the location of the shooting and heard three sharp sounds. She turned and saw a white man, five feet, ten inches to six feet tall, with "dirty blond" hair running down Maple Avenue. ⁴ Apparently, none of these three witnesses at the scene specifically identified the defendant (through photographic arrays or otherwise) as the man they had seen.

This in essence was the Commonwealth's identification evidence. The Commonwealth also offered evidence that the defendant did not return to his job in Cambridge after the day of the shooting, and did not return to his parents' apartment (where he had been living). The defendant was arrested in South Boston approximately two months later.

1. Motions for required findings. At the trial, the defendant moved for required findings of not guilty on the ground that the Commonwealth's evidence of the identity of the gunman was insufficient. On appeal, however, the defendant has not briefed this point. We therefore consider it waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Instead, the defendant now argues that the judge erred in denying his motions because there was no legally sufficient evidence of premeditation. Because this contention was not made below, however, we consider only whether the denial of the motion gave rise to a substantial likelihood of a miscarriage of justice. See Commonwealth v. Gallagher, 408 Mass. 510, 520 & n. 19, 562 N.E.2d 80 (1990).

"In reviewing the denial of a motion for a required finding of not guilty, we consider whether 'the evidence is insufficient as a matter of law to sustain a conviction on the charge.' Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979). '[The] question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' ... 'Thus, to sustain the denial of a [motion for a required finding], it is not enough for the appellate court to find some record evidence, however slight, to support each essential element of the offense; it must find that there was enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt.' " (Citations omitted.) Commonwealth v. Mazza, 399 Mass. 395, 398-399, 504 N.E.2d 630 (1987). As the defendant challenges the sufficiency of the evidence of premeditation, we inquire whether there was sufficient evidence that the defendant reflected at least briefly on his...