Commonwealth v. Walker

• Citation: 953 N.E.2d 195,460 Mass. 590
• Decision Date: 21 September 2011
• Docket Number: SJC–10470.
• Parties: COMMONWEALTHv.Andre WALKER.
• Court: United States State Supreme Judicial Court of Massachusetts

460 Mass. 590

953 N.E.2d 195

COMMONWEALTH

v.Andre WALKER.

SJC–10470.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 7, 2011.Decided Sept. 21, 2011.

James L. Sultan, Boston, for the defendant.Kathleen Celio, Assistant District Attorney, for the Commonwealth.Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.GANTS, J.

A jury in the Superior Court convicted the defendant of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty for the shooting death of Francis Stephens. The defendant was also convicted of the armed assault with intent to murder of Jose Astacio, who was shot but not killed, and possession of an unlicensed firearm. A codefendant, Willie Johnson, was acquitted on all charges.¹ Represented by new counsel, the defendant filed a motion for a new trial on the ground of ineffective assistance of counsel. The motion was denied after an evidentiary hearing by the same judge who had presided at trial.

In this consolidated appeal, the defendant argues that he should be granted a new trial because his attorney was ineffective in failing to move to suppress an improperly suggestive and unreliable out-of-court identification, in failing to object to the admission of hearsay with the out-of-court identification, in failing to object to the prosecutor's characterization of the out-of-court identification in closing argument, and in failing to introduce evidence of a third-party confession. In addition, the defendant claims that the judge erred in limiting the jury's use of exculpatory evidence of third-party culprits, in admitting evidence of the defendant's participation in drug dealing, and in failing to give an alibi instruction. The defendant also claims that he is entitled to reversal of the guilty verdict on the indictment charging armed assault with intent to murder because the evidence was insufficient as a matter of law to support a finding of guilt as a principal. We affirm the convictions and the denial of the motion for a new trial. After a complete review of the record, we also conclude that there is no basis to exercise our power under G.L. c. 278, § 33E, to reduce his murder conviction to a lesser degree of guilt or to order a new trial.

Background. We summarize the evidence in detail, considering it in the light most favorable to the Commonwealth, and reserving certain details for our analysis of the issues raised on appeal.

In September, 2000, the defendant and codefendant belonged to a gang from the Franklin Hill area in the Dorchester section of Boston known as the Franklin Hill Giants (Franklin Hill) that was engaged in escalating retaliatory violence with another neighborhood gang from the Esmond Street area (Esmond Street). After someone from Franklin Hill was stabbed while walking on Esmond Street on September 9, Kenie Smith, a senior member of Esmond Street, and Richard Green, a senior member of Franklin Hill, met to discuss the situation, in the presence of other gang members, including the defendant. After Green threatened Smith, and Smith made a move to his jacket, the defendant reached into his waistband and did something that sounded as though he were cocking a revolver. On September 12, an Esmond Street gang member was shot, and later that evening, a Franklin Hill gang member was shot. On September 16, at approximately 1 p.m., Smith was driving with three other Esmond Street gang members in a minivan when they spotted Green. Smith pulled in front of Green's vehicle, and someone from his minivan fired four to five shots into the windshield of Green's car, wounding Green.

Green was the “head man” of the Franklin Hill gang, supplied crack cocaine for sale by gang members, and determined which gang member was allowed to sell drugs on which neighborhood street. After the shooting of Green, several members of Franklin Hill, including the defendant, gathered at Akia Cheshire's apartment, where the defendant, among others, lived. Later that afternoon, the defendant suggested to Sharod Clark, another Franklin Hill gang member, that they should go to the Esmond Street area to “kill anybody over there.” Clark responded that he was “not in on this one.”

That afternoon, the defendant asked Terrance Dotson, who was friendly with Franklin Hill members, whether he would put gasoline in a Toyota Cressida automobile that Dotson had recently stolen and leave it for the defendant. Dotson followed his direction. At about 7 p.m., Dotson saw the defendant get into the Toyota automobile with Kyrone Childers.

Shortly thereafter, the defendant, wearing a black hooded sweatshirt, black gloves, and a black “skullie” cap, was driving the Toyota with the codefendant, Willie Johnson, now in the passenger seat, and stopped when he saw Clark, who was standing on the street with two companions. The defendant once more asked Clark to go “up the street with them.” This time, Clark and his two companions followed in Clark's vehicle.²

Clark testified at trial that the two cars drove to Glenway Street, with the defendant's car in the lead. They saw three men talking together near the corner of Glenway and Harlem Streets, in Esmond Street territory.³ The codefendant started firing shots at the men, and Clark's car pulled in front of the Toyota to block traffic. One of the men ran into a nearby store. Another man (Astacio), after being shot in the leg, rolled under a parked van. ⁴ The third man (Stephens) fell onto the sidewalk. Clark testified that the defendant stopped the car, got out, and walked toward the man lying on the sidewalk, firing downward multiple times with a nine millimeter firearm. Immediately after the shooting, the defendant drove the Toyota to the top of Fowler Street, a block away from where the shootings occurred. The defendant and codefendant abandoned the vehicle with the engine running. Clark told them to put the two firearms used in the shooting in his car, and he later hid them in a hamper at his aunt's house. Clark sold one of the guns but retrieved it when the defendant demanded it back.⁵

At around 8:15 p.m., police officers and paramedics arrived on the scene and found Stephens lying face down on the sidewalk with multiple gunshot wounds to his head and torso that proved fatal.⁶ Astacio had been shot in the right thigh, but he recovered from his wounds. Police officers at the scene recovered twenty-six nine millimeter shell casings fired from two different nine millimeter firearms.⁷

Michael Boyd testified that approximately one week after the shooting of Green, while Boyd was in the custody of the Department of Youth Services, he spoke by telephone with the defendant, who was a friend. The defendant asked whether he could vote if he was “on the run” for a “body” or for “one of those things,” phrases that Boyd understood to mean that the defendant had killed someone. After Boyd's release from the custody of the Department of Youth Services in February, 2001, while Boyd was living with the defendant and the defendant's girl friend, the defendant told Boyd of his involvement in the shootings and gave a number of details: that the assaults were in revenge for the shooting of Green; that there was a meeting at Cheshire's apartment after Green was shot; that he “sent a guy named Terrence” to get a car and provided money to put gasoline in it; that the defendant drove the car during the shooting and got out of the car; that nine millimeter guns were used in the shooting; that after the shooting the defendant gave the guns to Clark, but Clark sold one of the guns to pay off a debt, which caused a problem between the defendant and Clark because the defendant wanted the gun returned to him. The defendant also told Boyd that the person he shot lived in the Esmond Street area but was not an Esmond Street gang member. He added that this “didn't matter because we had [a] beef with them anyway,” and “it was revenge.”

At the crime scene, a man who refused to identify himself told police officers that he witnessed the shooting while he was driving his children home. The individual was later identified by a police officer as Sylvester Harrison. Approximately five months after the shooting, on February 13, 2001, Detectives John Martel and Michael Primm of the Boston police department interviewed Harrison at his home and showed him an array of twelve photographs. Detective Martel testified that Harrison did not make a positive identification but picked out two individuals that “look like the two people that were in the vehicle.” Harrison told the detectives that he saw the person depicted in photograph number two (the defendant) operate a black Toyota, and “[h]e observed [this person] as being the shooter coming out of the vehicle and shooting at two individuals that were on the sidewalk.” Harrison said the person depicted in photograph number four (who was not the codefendant) was “the passenger of the vehicle.”

Harrison testified at trial that on September 16, 2000, he was driving on Page Street toward the intersection of Glenway and Harlem Streets, when he heard shots coming from Glenway Street.⁸ After hearing the shots, he drove in reverse on Page Street, away from Glenway Street, but, after taking a few turns, drove on Glenway Street past the intersection of Glenway, Page, and Harlem Streets, the very intersection from where the shots came. Driving past this intersection, Harrison saw someone “[o]n the ground ... [b]y the store on Glenway.” After taking his first right on Fowler Street and dropping his children off at their home on that street, he spoke to police officers at the scene to tell them that a car, which he thought had crashed against another car, was blocking the middle of Fowler Street.⁹

Harrison testified that “[t]he bottom line to me is I didn't see who shot the person. I never seen the people's face.” Pointing at the two defendants, he said, “I never seen that man or that man...