474 Mass. 787 (2016), SJC-10932, Commonwealth v. Weaver

Docket Nº:SJC-10932
Citation:474 Mass. 787, 54 N.E.3d 495
Opinion Judge:Cordy, J.
Party Name:Commonwealth v. Kentel Myrone Weaver
Attorney:Ruth Greenberg for the defendant. John P. Zanini, Assistant District Attorney, for the Commonwealth.
Judge Panel:Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.
Case Date:July 20, 2016
Court:Supreme Judicial Court of Massachusetts

Page 787

474 Mass. 787 (2016)

54 N.E.3d 495

Commonwealth

v.

Kentel Myrone Weaver

SJC-10932

Supreme Judicial Court of Massachusetts, Suffolk

July 20, 2016

[As Modified July 29, 2016.]

Argued January 12, 2016.

Petition for certiorari filed at, 08/18/2016

Page 788

Indictments found and returned in the Superior Court Department on December 5, 2003.

A pretrial motion to suppress evidence was heard by Geraldine S. Hines, J.; the cases were tried before Stephen E. Neel, J.; and a motion for a new trial, filed on June 1, 2011, was heard by Geraldine S. Hines, J., and Jeffrey A. Locke, J.

Ruth Greenberg for the defendant.

John P. Zanini, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.

OPINION

Cordy, J.

[54 N.E.3d 501] On the evening of August 10, 2003, fifteen year old Germaine Rucker was shot and killed. The defendant, who was sixteen at the time of the shooting, subsequently admitted to committing the murder after prolonged questioning by the police and by his mother.

Prior to trial, the defendant filed a motion to suppress his statements to the police. That motion was denied following an evidentiary hearing. In 2006, a jury convicted the defendant of murder in the first degree on the theory of deliberate premeditation. He was also convicted of the unlicensed possession of a firearm. In 2011, the defendant filed a motion for a new trial under Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), claiming that he was denied the effective assistance of counsel in two respects: first, that counsel failed to adequately investigate the defendant's claim that his statements to police were coerced because counsel did not consult with a mental health expert or present expert testimony about the voluntariness of those statements; second, that counsel failed to object to the closure of the court room during jury empanelment in violation of the defendant's right to a public trial under the Sixth Amendment to the United States Constitution. The motion was bifurcated, and different judges considered, and ultimately rejected, the claims. The [54 N.E.3d 502] denial of the motion was consolidated with the defendant's direct appeal.

Page 789

In his appeal, the defendant asks us to expand our rule requiring the corroboration of extrajudicial statements as it applies to juvenile confessions pursuant to our extraordinary power under G. L. c. 278, § 33E. He also claims error in (1) the denial of his motion to suppress; (2) the denial of his motion for a new trial; and (3) the denial of his motion for a directed verdict on the firearms charge. We affirm the defendant's convictions and decline to grant relief under G. L. c. 278, § 33E.

1. Facts.

We recite the facts in the light most favorable to the Commonwealth, reserving certain details for our analysis of the legal issues raised on appeal.

On August 10, 2003, the victim went to Wendover Street to sell some small jewelry charms to a woman and her children. After the transaction, the woman reentered her home, and the daughter remained outside. The woman heard two gunshots. She stepped back out of the doorway and saw the victim lying in the street on top of his bicycle. The bag in which he had carried the jewelry was gone. The woman went back inside and telephoned 911.

The daughter testified that, just before the shooting, she noticed a group of males of varying ages gathered at the top of Dudley and Wendover Streets. The group rushed toward the victim, who threw his bag on the ground. They began to fight. An older member of the group, who appeared to be about thirty years of age and was wearing a straw hat, threw the first punch. A younger member of the group, who appeared to be about fifteen years of age and was wearing jean shorts and a white " doo-rag," picked up the victim's bag and ran toward Dudley Street. The daughter ran up the steps toward her front door and heard two gunshots fired in quick succession.

A third witness, who lived on nearby Humphreys Street, was sitting outside on his second-floor porch when he heard gunshots from the direction of Wendover Street. He then saw a young black man run down Humphreys Street away from Dudley Street. The young man wore dark jeans and was trying to pull off a dark shirt, under which he wore a white t-shirt. The young man stumbled, hopped, and pulled a pistol from his pants leg. The pistol had a flat handle and a round silver barrel. As he did so, the baseball cap he was wearing fell off of his head. The cap was collected by the police later that evening.

The cap was a Detroit Tigers baseball cap, with a stitched white " D" on the front and what appeared to be hand-drawn or painted white " D" letters on the sides. The police had seen the defendant

Page 790

wearing a cap matching the same description when they spoke to him approximately two weeks before the victim was murdered. Deoxyribonucleic acid (DNA) matching the defendant's DNA profile was found on the hatband. An analyst testified that the possible contributors to the DNA profile found on the hatband were one in 40 billion Caucasians, one in 1.6 billion African-Americans, and one in 65 billion Southeastern Hispanics.

A ballistics expert testified that shell fragments recovered from the victim were consistent with having been fired from a revolver and not a semiautomatic weapon. A revolver has a round barrel, consistent with the description of the handgun in the possession of the fleeing suspect, and does not eject shell casings. No shell casings were recovered from Wendover Street.

When emergency medical services arrived at the scene, the victim showed no signs of life. He had a bleeding head [54 N.E.3d 503] wound with brain matter visible and a second wound to his lower right back. The medical examiner who performed the autopsy on the victim determined that the cause of death was the two gunshot wounds.

At trial, there was a great deal of testimony regarding the investigation leading up to the incriminating statements that the defendant made to police, especially his admission, made after discussing the particulars with his mother, that he " shot the [victim]." The defense strategy was to claim that the defendant's statements were involuntary, and the result of coercion by a combination of lengthy questioning first by police and then by his mother, Iris Weaver (Weaver). We leave the details concerning the questioning of the defendant and the resultant incriminating statements to the discussion of the defendant's motion for a new trial, infra, as the trial testimony of the involved police officers and the defendant's mother, viewed in the light most favorable to the Commonwealth, are substantively identical to the testimony given at the evidentiary hearing on the motion.

At the conclusion of the trial, a humane practice instruction was given to the jury. The judge instructed the jury that the Commonwealth bore the burden of proving beyond a reasonable doubt that the defendant made his statement to the police " voluntarily, freely, and rationally." The judge further stated: " In order for a statement of a defendant to be voluntary, it must not, in any way, be coerced by physical intimidation or psychological pressure. Under the law of the Commonwealth

Page 791 of Massachusetts, a statement may be coerced not only by law enforcement officials but also by a private citizen. That is, coercion -- You may find that the defendant was coerced. Let me put it this way, coercion may occur not only by law enforcement officials, but in order to be coercion, it may also be caused by a private citizen. A statement made by a defendant is not voluntary if it is psychologically coerced. Therefore, if you find that the statement made by the defendant was coerced by his mother or any other person, you may not consider that statement in reaching a verdict."

During deliberations, the jury asked for a legal definition of " psychological coercion." After receiving the question, the court adjourned for the day. Neither the judge nor counsel located any case law defining the term before court reconvened the next morning. The judge then repeated his original instructions to the jury, adding that the jurors should " give the term psychological coercion its plain and ordinary meaning as you understand it. But I will tell you that psychological coercion refers to inappropriate or inordinate psychological pressure." The jury subsequently convicted the defendant.

2. Discussion.

a. Corroboration rule.

In Commonwealth v. Forde, 392 Mass. 453, 458, 466 N.E.2d 510 (1984), we announced the corroboration rule, which " requires corroboration that the underlying crime was in fact committed, thus preventing convictions against persons who have confessed to fictitious crimes." Commonwealth v. DiGiambattista, 442 Mass. 423, 430, 813 N.E.2d 516 (2004), citing Forde, supra at 458. In DiGiambattista, we declined to expand the rule to require corroboration that a defendant was the actual perpetrator of the crime, or to require a showing that a confession is reliable under the circumstances in which it was given. DiGiambattista, supra at 431-432. Acknowledging the phenomenon of false confessions, we concluded that the problem is best addressed through the " strict analysis of the circumstances of [an] interrogation [54 N.E.3d 504] as they affect the voluntariness of a defendant's statement." Id. at 432.

On appeal, the defendant asks us to reconsider expanding the corroboration rule as it applies to juvenile confessions in light of research that juveniles are more likely than adults to confess to crimes they did not commit -- research to which no citation is provided. He argues that his case...

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