Commonwealth v. Ellis
| Citation | 475 Mass. 459,57 N.E.3d 1000 |
| Decision Date | 09 September 2016 |
| Docket Number | SJC–11993. |
| Parties | COMMONWEALTH v. Sean K. ELLIS. |
| Court | United States State Supreme Judicial Court of Massachusetts |
Paul B. Linn, Assistant District Attorney (Edmond J. Zabin, Assistant District Attorney, with him) for the Commonwealth.
Rosemary Curran Scapicchio (Jillise McDonough with her), Boston, for the defendant.
Present: GANTS, C.J., SPINA, BOTSFORD, DUFFLY, & HINES, JJ.1
GANTS
, C.J.
On September 14, 1995, a Superior Court jury found the defendant guilty of murder in the first degree and armed robbery in the killing of Boston police Detective John Mulligan. In 2000, we affirmed the defendant's convictions and the denial of his motion for a new trial. Commonwealth v. Ellis, 432 Mass. 746, 765, 739 N.E.2d 1107 (2000)
. In 2013, the defendant filed a second motion for a new trial based on newly discovered evidence regarding the victim's participation in crimes of police corruption with several Boston police detectives who investigated his murder, and information provided to the police regarding possible third-party culprits. A Superior Court judge allowed the new trial motion, concluding that the newly discovered evidence cast real doubt on the justice of his convictions. We conclude that the judge did not abuse her discretion in ordering a new trial.
Background. 1. Evidence at trial. The convictions at issue in this case arose from the defendant's third trial. At the first trial, the jury found the defendant guilty of the illegal possession of two firearms without a license, but were unable to render verdicts on the murder and armed robbery indictments, and a mistrial was declared as to those indictments. The jury in the second trial were also unable to render verdicts on the murder and armed robbery indictments, resulting again in a mistrial. We recount the evidence presented at the defendant's third trial.
The victim had been a Boston police detective for seventeen years before his death. In the early morning of September 26, 1993, he was working a paid security detail at a Walgreens pharmacy in the Roslindale section of Boston, a detail that he worked several times a week.
The defendant, after waiving the Miranda rights, told police that, at approximately 2:30 a.m., his cousin asked him to buy some diapers on his way home. His friend, Terry Patterson, drove him and a woman to the Walgreens, where he purchased the diapers.2 He had earlier received a page from a friend, whom he telephoned from a public pay telephone outside the store at about 3:00 a.m. According to the defendant, Patterson then drove the defendant and the woman to the defendant's apartment, where he spent the rest of the early morning.
At approximately 3:05 a.m., Rosa Sanchez arrived at the Walgreens with her husband to buy soap. As she walked past the victim's vehicle, she noticed that the victim was asleep in his vehicle. She also saw a man, whom she later identified as the defendant, crouching by the victim's vehicle. She entered the Walgreens and remained in the store for about twenty minutes.
Patterson owned a maroon or burgundy Volkswagen Rabbit vehicle with tinted windows, custom wheels, and a “bra” on the front. At approximately 3:20 a.m., a newspaper deliverer was nearly struck by a vehicle matching that description as it was driven away from the Walgreens with two men in the front seat and a woman in the rear seat. At about that same time, Victor Brown was awakened by a loud vehicle, and saw two African–American men, one tall, the other short and stocky,3 standing near a brown Volkswagen Rabbit parked on the sidewalk with a woman sleeping in the rear seat. The two men walked into a wooded area, reemerged from the woods, and walked down a footpath in the direction of the Walgreens, which was five minutes away on foot. At approximately 3:35 a.m., Brown heard vehicle doors close and a vehicle engine start, and saw the brown vehicle drive away. As Sanchez left the Walgreens at approximately 3:25 a.m., she saw the man she previously had seen crouching by the victim's vehicle standing with another man by a pay telephone near the vehicle. At about this same time, another customer arrived at the Walgreens. She spent a few minutes in the store, and, as she left, she saw two men fitting the descriptions of the defendant and Patterson walking toward the pay telephones. She noticed as she was entering and leaving the store that the victim appeared to be asleep in his vehicle with his seat reclined.
At 3:30 a.m., a Walgreens employee left the store during a break to get coffee, noticing as he left that the victim was in the victim's vehicle and appeared to be fine. The employee drove to get coffee at a shop that was about five minutes away. When he returned to the Walgreens several minutes later, he saw that the victim, who was still in the driver's seat of the vehicle with his seat reclined, had blood on his face. After unsuccessfully trying to rouse the victim, the employee ran into the store and told the manager to call the police. The 911 call was made at 3:49 a.m.
The victim had been shot five times in the face; each of the shots would have proved fatal. The front driver's side door of the victim's car was unlocked; the front passenger's side door was locked. The police officers who responded to the scene saw that the victim was wearing a holster for his service weapon, but the weapon was missing. Several of the individuals who were at the Walgreens that morning gave statements to police. Several witnesses recounted seeing two males whose descriptions were consistent with the defendant and Patterson in the area of the Walgreens between 3:00 and 3:30 a.m., , but Sanchez was the only witness who later identified either the defendant or Patterson.
Early in the morning of September 30, police located Patterson's vehicle. The vehicle no longer had a license plate, and the windows were no longer tinted; instead, they bore scratch marks and a glue-like residue, consistent with the tinting having been removed.
Under a grant of immunity, Letia Walker, the defendant's girl friend, testified that on the morning of September 30, she went with the defendant to his apartment.4 The defendant entered the apartment, and returned with a bag. When they went to Walker's home, the defendant removed two guns from the bag, a nine-millimeter Glock pistol and a .25 caliber pistol with a “white” handle. The defendant then hid the guns under Walker's dresser. On October 1, Kurt Headen, a friend of the defendant, came to Walker's home. Walker and Headen removed the guns from under the dresser, and Walker touched the clip of the .25 caliber pistol. Headen took the guns and discarded them in a field by Walker's house.
On October 7, Boston police recruits found the two guns in that field. The Glock recovered from the field was the service weapon registered to the victim. Forensic testing revealed that the .25 caliber pistol was the murder weapon.
On the evening of October 5, Sanchez was brought to the Boston police homicide unit with her husband by Detectives Walter Robinson and Kenneth Acerra to view photographic arrays. Detective Acerra knew Sanchez personally—he lived with, and had a child by, Sanchez's aunt, and he was a good friend of Sanchez's mother. Sanchez was shown two photographic arrays, one that contained a photograph of the defendant and another that contained a photograph of Patterson. When she was first shown the array containing the defendant's photograph, Sanchez became upset and told the police that one of the people in the array had stalked her.5 The detectives who administered the array covered that photograph, and Sanchez looked at the remaining seven photographs. She pointed to the photograph of someone other than the defendant, stating that she “[thought] that may be the person” she saw crouching by the victim's vehicle.6 She left the police station with her husband and Detectives Robinson and Acerra. Sanchez returned to the homicide unit minutes later, however, after she told her husband that she had intentionally selected the wrong person and her husband related that information to Detective Robinson. Sanchez testified that she picked the wrong person because she was afraid and did not want to get involved. When she returned to the homicide unit, she was shown the same photographic array and identified the photograph of the defendant as the person she had seen crouching by the victim's vehicle.7 Sanchez later identified the defendant in an in-person lineup and made an in-court identification of the defendant.
A forensic fingerprint examiner testified to his opinion that a fingerprint, found on the clip of the murder weapon, was made by Walker. The same fingerprint examiner processed the victim's vehicle and found four latent prints on the driver's side door. The examiner testified that the four fingerprints were left simultaneously by different fingers of the same hand. The examiner identified the four fingerprints as belonging to Patterson and opined that the fingerprints were left by the act of closing the vehicle's door.8
The Commonwealth's theory of the case, as presented in closing argument, was that the defendant spotted the victim sleeping in his vehicle and saw the opportunity to steal a police officer's service weapon. The defendant and Patterson, it was argued, then drove to the side street near the Walgreens and left Patterson's vehicle there to avoid detection and facilitate their escape. They then walked back to the Walgreens and waited in the parking lot until no witnesses were present. When the parking lot was otherwise empty, “ they” shot the victim, took his service weapon, ran back to Patterson's car, and drove away. Under the Commonwealth's theory, the motive for the murder was to take the victim's service weapon as a trophy.
The jury convicted the defendant of armed robbery and of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder. The judge...
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