Com. v. Andrews

• Decision Date: 14 May 1998
• Citation: 427 Mass. 434,694 N.E.2d 329
• Parties: COMMONWEALTH v. Kim ANDREWS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 329

694 N.E.2d 329

427 Mass. 434

COMMONWEALTH v. Kim ANDREWS.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Feb. 3, 1998.

Decided May 14, 1998.

Mary F. Costello, Boston, for defendant.

Katherine E. McMahon, Assistant District Attorney (James W. Coffey, Assistant District Attorney, with her), for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and IRELAND, JJ.

IRELAND, Justice.

A jury convicted the defendant of murder in the first degree on grounds of deliberate premeditation and extreme atrocity or cruelty. The jury also convicted the defendant of unlawful possession of a firearm, in violation of G.L. c. 269, § 10(a )(6). The defendant has appealed from the convictions claiming that (1) identification evidence should have been suppressed; (2) his motions for a required finding of not guilty of murder in the first degree should have been allowed; (3) he did not receive effective assistance from his trial counsel; (4) certain comments by the prosecutor during closing remarks were inflammatory, were not based on evidence, and, so, created the substantial likelihood of a miscarriage of justice; and (5) the jury instructions describing reasonable doubt were faulty. Although the defendant makes no specific request, we are also obligated under G.L. c. 278, § 33E, to review the record to determine if the defendant is entitled to a new trial or a reduction in the degree of his guilt. For the reasons set forth below, we affirm the convictions and decline to exercise our power under G.L. c. 278, § 33E.

The jury heard the following evidence. Two privately employed security guards, Rui Carvalho and Earl Lacaillade (the guards), were on foot patrol in the Canfield Gardens housing complex in the Roxbury section of Boston on the afternoon of December 1, 1994. At about 4:30 P.M., the guards heard three gunshots coming from Kendall Street, approximately fifty to sixty yards away. Both guards drew their guns and ran in the direction of the gunshots. They saw three black males standing on the sidewalk along Kendall Street.

On seeing the guards, two of the males fled down Kendall Street toward Shawmut Avenue. One of the two males was holding a handgun. The third male (later identified as the defendant) fled in another direction toward Ditmus Court. The guards pursued the defendant as he ran around the corner of a building. After coming around the corner, the guards stopped and saw the defendant, with his right arm raised and extended, standing about eight feet from the victim, Jimmy Hinson. Hinson was backing away from the defendant, with his arms raised in a defensive manner. Hinson fell backward onto the steps of a building on Ditmus Court, and the defendant fired his gun four times at the victim. Carvalho was standing some fifteen to twenty feet from the defendant at the time of the shooting; Lacaillade was slightly farther away. Carvalho immediately recognized the shooter as the same young, light-skinned black male whom he had seen "over one hundred times" in recent weeks in the general area around the Canfield Gardens housing complex.

The defendant made eye contact for one second or more with Carvalho, then fled, with Carvalho in pursuit. Carvalho gave up the pursuit after a block and returned to the crime scene. Lacaillade, who had stayed behind to assist the victim, immediately radioed for police assistance. Hinson was transported by ambulance to Boston City Hospital, where he died three days later from massive internal injuries caused by the gunshot wounds.

On the evening of the incident, Boston police Detective Charles Horsley separately interviewed Carvalho and Lacaillade. The next day each man was separately shown an identical photographic array of nine pictures, including one of the defendant. Carvalho immediately selected the defendant's picture, but Lacaillade was unable to make a positive identification from the array. The police obtained a warrant for the defendant's arrest. After learning of the warrant, the defendant voluntarily surrendered on January 24, 1995. On February 10, 1995, Carvalho and Lacaillade separately identified the defendant from a lineup of young black males.

The jury also heard testimony from certain experts, including John Seay, a ballistician from the Boston police department. Seay testified that he had recovered from the crime scene (1) four discharged nine millimeter cartridges; (2) a spent nine millimeter bullet; (3) three bullet fragments (each too small to determine the type or caliber); and (4) a spent .44 caliber hollow point bullet. In addition, the medical examiner's office had given Seay three other hollow point .44 caliber bullets that had been removed from the victim's body. Seay concluded that all of the nine millimeter cartridges and the spent nine millimeter bullet had come from the same gun. Seay also concluded that the spent .44 caliber bullet recovered from the crime scene had been fired from the same gun as the three spent .44 caliber bullets recovered from the victim's body. The police were unable to recover either gun.

Dr. Stanton Kessler, a medical examiner for the Commonwealth, testified that Hinson had sustained four separate gunshot wounds: one to his right arm, through which the bullet had passed completely; one to his abdominal wall, causing massive damage to various internal organs; one to his neck; and one to his knee and groin, causing a wound Dr. Kessler described as "in and of itself ... a lethal wound." According to Dr. Kessler, many of the victim's internal organs had been severely damaged by the "blast effect" of the hollow point bullets used in the shooting. Doctors at Boston City Hospital were unable to close or suture the victim's wounds owing to the gravity of the internal injuries. The victim died three days later.

Finally, jurors heard additional testimony from Carvalho and from two Boston police officers who each had seen the defendant in the neighborhood of the crime scene in the weeks before the shooting but had not seen him at all after that. That evidence would warrant an inference that the defendant was aware that he may have been positively identified as the shooter by at least one of the security guards and, hence, wished to avoid being seen again in the vicinity of the crime scene.

1. Identification evidence. The defendant unsuccessfully sought to suppress evidence from the photographic array and the police lineups which positively identified him as the shooter. The trial judge conducted a suppression hearing on the defendant's motion. The judge found that Carvalho described the shooter (shortly after the incident) as "a light skinned black male ... about 5 foot 6 to 5 foot 7 inches tall" ¹ and that Lacaillade had initially described the shooter as "5 foot 4 inches to 5 foot 5 inches [and] hispanic." The judge also found that Lacaillade later gave a similar description to another detective, but when asked by the detective whether the shooter might have been "a light skinned black male," Lacaillade conceded that it was possible.

The judge found further that, on the day after the shooting, the guards "independently viewed a 9 to 10 photo array of young black males" and that Carvalho selected the defendant as the shooter, but that Lacaillade was unable to identify any of the individuals depicted in the array as the shooter. Finally, the judge found that the guards later viewed a lineup independently and that they each identified the defendant as the shooter. The judge concluded that neither the photographic array nor the lineup was impermissibly suggestive.

It was the defendant's initial burden at the suppression hearing to demonstrate "by a preponderance of the evidence, that the 'witness[es] [were] subjected by the State to a confrontation that was unnecessarily suggestive and thus offensive to due process.' " Commonwealth v. Johnson, 420 Mass. 458, 463, 650 N.E.2d 1257 (1995), quoting Commonwealth v. Botelho, 369 Mass. 860, 866, 343 N.E.2d 876 (1976). The pertinent question was not whether there may have been a mistaken identification, but whether any possible mistake in identifying the defendant was, or might have been, caused by improper suggestions made by the police. See Commonwealth v. Warren, 403 Mass. 137, 139, 526 N.E.2d 250 (1988). The determination whether the photographic arrays were unnecessarily suggestive and, hence, offensive to the defendant's due process rights is made according to "the totality of the circumstances surrounding it." Botelho, supra at 867, 343 N.E.2d 876, quoting Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972-1973, 18 L.Ed.2d 1199 (1967).

The defendant argues that the suppression motion should have been allowed because (1) the photographic array was impermissibly suggestive as a result of the police detective's "coaching" the guards that the shooter might have been a light-skinned black man instead of Hispanic; and (2) the Commonwealth failed to demonstrate by clear and convincing evidence that the lineup identifications or the in-court identifications were the product of an independent source. ²

The judge was warranted in concluding that the defendant had not met his initial burden at the suppression hearing of showing impermissible suggestiveness. There is no indication in the record of any police coaching of Carvalho's description of the shooter. Although Carvalho's estimate of the shooter's height changed slightly from his initial description, he consistently described the shooter as a light-skinned black male. The defendant's argument that the police impermissibly coached Carvahlo thus fails at the outset.

Lacaillade, however, had initially described the shooter as Hispanic and had indicated that the shooter might have been a light-skinned black man only after the police detective had asked whether this was a possibility. The judge concluded that the detective was not attempting to coach Lacaillade, but simply trying to get a...