Com. v. Anderson

• Decision Date: 22 September 2005
• Parties: COMMONWEALTH v. Tanzerius ANDERSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1159

834 N.E.2d 1159

445 Mass. 195

COMMONWEALTH v. Tanzerius ANDERSON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 11, 2005.

Decided September 22, 2005.

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Robert S. Sinsheimer, Boston, for the defendant.

Amanda Lovell, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, SOSMAN, & CORDY, JJ.

IRELAND, J.

In April, 2002, the defendant was found guilty of murder in the first degree on theories of extreme atrocity or cruelty (acting as a principal) and felony-murder (acting as both a joint venturer and a principal). He also was found guilty of armed robbery as both a principal and joint venturer and of illegal possession of a firearm as a principal.¹ On appeal, the defendant claims that the trial judge erred in submitting the case to the jury on extreme atrocity or cruelty; failing to conduct a voir dire of a witness to determine whether a statement made by the defendant was voluntary; instructing the jury concerning the voluntariness of the defendant's statements; denying the defendant's motion to suppress his statements to police; allowing certain photographs to be admitted in evidence; and denying the defendant's motion to sever his trial from that of his coventurer. He also asks us to exercise our power pursuant to G.L. c. 278, § 33E, to reverse the murder conviction and grant him a new trial. Pursuant to a pro se brief, see Commonwealth v. Moffett, 383 Mass. 201, 207-209, 418 N.E.2d 585 (1981), the defendant claims ineffective assistance of counsel on various grounds, errors by the judge, and prosecutorial misconduct in the opening and closing statements, and asks this court to grant him a new trial. We affirm the defendant's convictions and see no reason to exercise our power pursuant to G.L. c. 278, § 33E.

1. Facts. We present the essential facts the jury were warranted in finding, reserving certain details for the discussion of the issues raised.

On March 25, 2000, the defendant and sixteen year old Joleena Tate² went to North Conway, New Hampshire, and broke into a condominium unit belonging to Tate's father. They stole firearms and ammunition from the home, including a .357 Magnum revolver. The two also checked into the Yankee Clipper Motor Inn under the defendant's name.³

On the evening of March 27, 2000, the defendant brought Tate to the home of Edward Gauthier, an acquaintance he knew through Jason Robinson, his coventurer. Others were present that evening, including Robinson and Heather Coady. The group was in Gauthier's room playing video games and together smoked three or four "blunts," cigars stuffed with marijuana.

At some point in the evening, as the defendant was preparing to leave, Tate asked him if he wanted to "rob someone." The defendant agreed. Tate informed the defendant, who had invited Robinson to join them in the robbery, that she knew the victim, a Lebanese immigrant.⁴ She told the pair that he carried a lot of cash and would be passive in a robbery. The three decided that Tate would contact the victim and ask him to meet her. She would then bring the victim to an apartment building located at 89 Faneuil Street (a public housing development), in the Brighton section of Boston, where the defendant and Robinson would be waiting in the hallway. They agreed that Tate would page them to indicate the time that she and the victim would be arriving. Tate testified that the plan was that once the two men arrived, she would pretend she knew nothing of the robbery and turn and walk away.

The defendant and Robinson took Tate home, where she telephoned the victim and arranged for him to pick her up. The victim took her to dinner and paid for her drinks at a restaurant in Watertown. The defendant and Robinson returned to Gauthier's home. As the defendant was leaving to make a telephone call, Gauthier heard Robinson tell the defendant to hurry back if he wanted to make some money.

In accordance with the plan, Tate used the victim's cellular telephone to reach Robinson's pager and entered "1145." When the pager "went off," Gauthier heard Heather Coady, with whom Robinson shared the pager, ask him if "1130"⁵ meant anything to anyone. Robinson answered that it did.

At her request, the victim drove Tate to the designated building and parked in the driveway. She asked him to walk with her into a hallway so that she could meet a friend. He agreed. At first, Tate did not see the defendant or Robinson so she stalled for time, which included leading the victim back outside. When the defendant and Robinson showed up, Tate said to the victim, "We're being robbed." The defendant and Robinson led the victim toward the building. Tate walked in the direction of a nearby playground, where she had seen Heather Coady, to whom she had whistled and whose name she had called out. Tate testified that she called out to Coady as part of her tactic to stall the victim, hoping to make him think she was trying to get the attention of someone in the building. Just before the robbery, Gauthier, who had met Coady at the playground, noticed Robinson near the building.

About five minutes later, Tate, who was now walking with Coady, heard a very loud noise. Gauthier also heard the noise and observed the defendant and Robinson running from the building through a parking lot. Tate met up with the pair and they left in the defendant's car. When Tate asked what had happened, the defendant replied, "He's murked [dead]," and, "I got my body for the summer."

Tate testified that the defendant later stated that, while in the hallway, the men told the victim to keep his hands up and not look behind him, but that the victim kept moving his hands up and down, and had reached for the door knob. The victim kept saying that he was a good person, did not want any trouble, and knew a lot of people in the area. The defendant later told Gauthier that he believed the victim said, "Police, police." The defendant told Tate that the victim said he was not a police officer, but the defendant got nervous and shot him.⁶

When the three were driving away from the scene, the defendant removed a gun from his pocket, which Tate believed was taken from her father's home. He passed the gun to Robinson and stopped in order to hide it temporarily. The two men had the victim's wallet and found it contained forty-six dollars. They returned to the playground and Robinson asked Gauthier and Coady to help look for his watch, which he claimed to have lost. The defendant told Tate to stick to her story — that she did not see the victim after he dropped her off — because the police had no witness and no weapon.

A resident discovered the victim's body, lying in a pool of blood, outside the building at approximately 3:30 A.M. on March 28. The injuries to the victim were extensive and so severe that the man who found the body described the victim's face as "distorted" and stated that the face was not attached "as a normal face would be." The first police officer on the scene "had reason to believe," but was not sure, the victim had died of a gunshot wound.

The medical examiner determined that death was caused by the victim's heart stopping as a reflexive reaction to the gunshot, and that death was instantaneous. There appeared to be no defensive wounds. The largest of the blood spatters in the hallway was located between thirty-two to forty-seven inches from the floor. The victim was sixty-four inches tall.

Later that day, the defendant was late arriving at work, left early, and simply never returned. In the days following the murder, the defendant met with Robinson, Tate, Gauthier, and Coady. Gauthier testified that the defendant told him to stick to his story and that he should tell police that Gauthier and Coady had "had sex" that night, which was not true. As the defendant was dropping Tate off at her home, he reminded her to stick to her story and to remember that she and the defendant "didn't know each other."

There was no forensic evidence linking the defendant to the crime. The defense was that the police investigation was inadequate and that someone else committed the crimes, including, in some combination, Tate, Gauthier (both of whom, defense counsel contended, were lying), or Coady. The defendant did not testify and called only one witness, a gunsmith.

2. Discussion. a. Murder with extreme atrocity or cruelty. The defendant moved for a required finding of not guilty of murder in the first degree on the ground of extreme atrocity or cruelty at the close of the Commonwealth's case and at the close of all evidence. Both were denied. We review the denial of a motion for a required finding of not guilty to determine "whether the evidence viewed in the light most favorable to the Commonwealth could have `satisfied a rational trier of fact' of each element of the crimes charged beyond a reasonable doubt." Commonwealth v. Conkey, 443 Mass. 60, 72, 819 N.E.2d 176 (2004), quoting Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979).

The defendant argues that because the victim died "instantaneously" of a single gunshot wound, with no evidence of defensive wounds, there was insufficient evidence to submit the case to the jury on the theory of extreme atrocity or cruelty. In the circumstances of this case, there was no error.

A jury may consider the Cunneen factors⁷ to determine whether a murder was committed with extreme atrocity or cruelty. Commonwealth v. Cunneen, 389 Mass. 216, 227, 449 N.E.2d 658 (1983). "Our cases have generally upheld submission of the question of extreme atrocity or cruelty to the jury on the basis of even a single fatal blow." Commonwealth v. Glass, 401 Mass. 799, 802-803, 519 N.E.2d 1311 (1988) (single stab wound where defendant turned the knife to inflict "more injury"). Commonwealth v. Golston, 373 Mass. 249, 259-260, 366 N.E.2d 744 (1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 777, 54...