Com. v. Brown

Decision Date04 June 1979
Citation390 N.E.2d 1107,378 Mass. 165
PartiesCOMMONWEALTH v. Enfrid BROWN, Jr. (and two companion cases 1 ).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Martin K. Leppo, Boston, for William J. Johnson, Jr.

Reuben S. Dawkins, Boston, for John C. Clinkscales.

Monroe L. Inker, Boston, for Enfrid Brown, Jr.

Michael J. Traft, Sp. Asst. Dist. Atty., for the Commonwealth.


QUIRICO, Justice.

Hakim Jamal was shot to death in his Roxbury apartment by armed intruders on May 1, 1973. The defendants Enfrid Brown, Jr., John Clinkscales, and William J. Johnson, Jr., were apprehended and charged with murder. On August 2, 1973, they were convicted by a jury of the crimes of murder in the first degree and of armed burglary. See G.L. c. 265, § 1; G.L. c. 266, § 14. On February 14, 1975, we reversed and remanded the cases for a new trial in light of the judge's use of an impermissibly coercive version of the so called Tuey charge. Commonwealth v. Brown, 367 Mass. 24, 32, 323 N.E.2d 902 (1975). On July 31, 1975, following a second jury trial limited to the murder indictments, the defendants were again convicted of murder in the first degree.

Thereafter, in January of 1976 Phillips Key and Isaac Mitchell were put to trial for the same offense. Key was allowed to plead guilty of manslaughter. After a jury trial at which Key testified, Mitchell was convicted of manslaughter. Brown, Clinkscales, and Johnson thereafter filed a joint motion for a new trial on the grounds of the manslaughter convictions of Key and Mitchell and of newly discovered evidence. The judge denied the motion after an evidentiary hearing. 2 Pursuant to G.L. c. 278, §§ 33A-33G, the defendants appealed to this court from the denial of their motion for a new trial. We affirm. We also hold that no relief under G.L. c. 278, § 33E, is warranted.

On the basis of the evidence at the defendants' second trial, the jury could have found the following facts. On May 1, 1973, Hakim Jamal occupied a third-floor apartment with Hane Jamal, who described herself as Hakim's wife in a "spiritual" but not a legal sense, and with Crab Jamal, Kidogo Jamal, Linda Jacobs, and Linda's son Anthony Jacobs. 3 On the morning of May 1, Kidogo, who was employed at an industrial plant, escorted Hane to the personnel office of his employer and on that day she secured temporary employment there. During the day, Kidogo had an argument with one Louella Burns (also known as Sister Cissy). 4

Burns informed members of an organization called "De Mau Mau" of her argument with Kidogo. Included among the members of the organization were the three defendants, as well as Key and Mitchell. These five individuals procured various firearms including handguns, carbines, and a rifle and drove to the Jamal apartment about 11 P.M. Leaving their car locked but with the engine running, all five ascended the stairs carrying the firearms. Key knocked on the door of the Jamal apartment and Kidogo answered. A German shepherd dog left the apartment while the door was open. 5 Kidogo attempted to close the front door, ran into the living room, and blocked the living room door closed with his body. Hakim, Hane, and Crab were also present in the living room. At the same moment, Anthony was in a bedroom at the other end of an interior hallway. Linda was in the kitchen, which was located between the bedroom and the living room.

Key, Mitchell, and the three defendants entered the apartment. Johnson turned down the hall toward the bedroom. He kicked open the bedroom door and pointed a rifle at Anthony. Linda and Anthony, both of whom knew Johnson well, asked him not to hurt Anthony, and Johnson backed away. Key forced open the living room door, pinning Kidogo between the open door and a wall. Hakim attempted to raise a shotgun lying next to the chair in which he was sitting. Key quickly lay down on the floor. Mitchell fired several shots at Hakim, killing him. At some point during these events, Brown and Clinkscales were in the foyer area of the apartment where they were observed, respectively, by Linda and Anthony.

All five intruders left the apartment. Clinkscales shattered a window in the car in order to unlock the doors. Four of the five then drove away. After a brief investigation not here relevant, the police apprehended Mitchell and the defendants. Mitchell was released for a time and was later rearrested. Key remained a fugitive for over two years.

The present defendants were tried in July of 1973 and, after reversal by this court as noted earlier in this opinion, they were tried again in July of 1975. Mitchell was in custody during the second trial. Key was at large during the period of both trials. He surrendered to the police in November of 1975 and, together with Mitchell, was brought to trial in January of 1976.

1. Motion for new trial. The defendants filed their joint motion for a new trial on February 10, 1976, shortly after the end of Mitchell's trial. Their basic argument is this: Key's testimony at Mitchell's trial influenced the jury to convict Mitchell (who was, by all accounts, the person who actually shot and killed Hakim Jamal) only of manslaughter. This testimony was, however, not available to the defendants during either of their trials because Key remained a fugitive. In addition, Mitchell's testimony was not available to them during their second trial because he was then under indictment for the murder of Hakim Jamal, but he could now give testimony tending to prove that the killing was in self-defense. The testimony of Key and Mitchell was, therefore, newly discovered evidence justifying a new trial. 6

Following an evidentiary hearing, the judge denied the motion for a new trial and filed a memorandum stating his findings of fact and conclusions of law. These findings, which are warranted by the evidence, are as follows. Key remained in Boston for about two weeks after the shooting. Between May 1, 1973, and November 26, 1975, when he surrendered to police, Key eluded police by traveling to and from Boston, Alabama and New York City. Key was present in Boston during the second trial and knew of the trial. He did not, however, communicate with counsel for the defendants or offer to testify on behalf of the defendants. During the second trial of the present defendants, Mitchell was under indictment (the date of indictment not appearing in the record) and incarcerated within the Commonwealth. He did not volunteer to testify, and he was not summoned to testify.

Key's testimony at the Mitchell trial was to the effect that he, Mitchell, Brown, Clinkscales, and Johnson went to the Jamal apartment in order to protect Hakim from a threat on his life. Although Mitchell did not testify at his own trial, he did make an unsworn statement, after his conviction and before he was sentenced, in which he asserted that the present defendants had not received a fair trial and that Hakim was shot in self-defense. Mitchell reiterated essentially these same points at the hearing on the motion for a new trial in these cases. He also stated that he went to the Jamal apartment in order to protect Hakim. 7 He would not, however, unequivocally state that he had not offered to testify during the second trial.

With respect to Key's testimony, the judge found insufficient proof that Key had never communicated with the defendants 8 or that defense counsel had diligently sought Key. He therefore ruled that Key's testimony was not newly discovered. The judge also found that, because Key was a close friend of the defendants, because he had previously failed to testify at either of their trials, and because his testimony contradicted that of "several trial witnesses who were apparently credited by the jury," the proposed testimony by Key was unworthy of credit.

With respect to Mitchell's testimony, the judge ruled that it was not newly discovered because Mitchell was, in fact, present in Boston and subject to summons. He stated, "It was a tactical decision by the defendants and their counsel not to request or subpoena Mitchell to appear at trial on their behalf to clear them of any involvement with the homicide. Having gambled and lost, defendants should not be allowed another new trial at which Mitchell might be called (to) testify." In addition, the judge found Mitchell's testimony "quite suspect as to its credibility."

A judge of the Superior Court may grant a new trial "(i)f it appears . . . that justice may not have been done." G.L. c. 278, § 29, as appearing in St.1966, c. 301. In the absence of constitutional error, the granting of a motion for a new trial on the ground of newly discovered evidence rests in the sound discretion of the judge. Commonwealth v. Horton, --- Mass. ----, ---- A, 380 N.E.2d 678 (1978). Commonwealth v. Grace, 370 Mass. 746, 751, 352 N.E.2d 183 (1976). Commonwealth v. DeChristoforo, 360 Mass. 531, 542, 270 N.E.2d 100 (1971). Commonwealth v. Dascalakis, 246 Mass. 12, 32-33, 140 N.E. 470 (1923). His decision "is not to be reversed unless a survey of the whole case shows that his decision, unless reversed, will result in manifest injustice." Sharpe, petitioner, 322 Mass. 441, 445, 77 N.E.2d 769, 771 (1948). Accord, Commonwealth v. Horton, supra, and cases cited.

Manifest injustice is not shown merely by producing evidence that might, if presented, have influenced the trier of fact to reach a different result. Commonwealth v. DeChristoforo, supra, 360 Mass. at 542-543, 270 N.E.2d 100. Commonwealth v. Robertson, 357 Mass. 559, 562, 259 N.E.2d 553 (1970). Rather, the evidence "must be weighty and of such nature as to its credibility, potency, and pertinency to fundamental issues in the case as to be worthy of careful consideration." Davis v. Boston Elevated Ry., 235 Mass. 482, 495, 126 N.E. 841, 843 (1920). It must be "credible in character" and relate "to vital...

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