Com. v. Caillot

• Decision Date: 10 July 2009
• Docket Number: SJC-08383a.
• Citation: 909 N.E.2d 1,454 Mass. 245
• Parties: COMMONWEALTH v. Herby CAILLOT (and a companion case<SMALL><SUP>1</SUP></SMALL>).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

909 N.E.2d 1

454 Mass. 245

COMMONWEALTH v. Herby CAILLOT (and a companion case¹).

SJC-08383a.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued March 6, 2009.

Decided July 10, 2009.

Donald A. Harwood, New York, NY, for Manuel E. Santos.

John J. Barter, Boston, for Herby Caillot.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

Michael R. Schneider, Boston, & John M. Thompson, for Committee for Public Counsel Services & another, amici curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, COWIN, CORDY, & GANTS, JJ.

GANTS, J.

On October 5, 1998, a jury convicted the defendants, Herby Caillot and Manuel R. Santos, of murder in the first degree, as joint venturers, by reason of deliberate premeditation. After initially denying postconviction relief, the trial judge granted the defendants a new trial, finding that the improper closing argument by the prosecutor concerning motive and newly discovered ballistics evidence regarding the handguns used in the murder, considered together, meant that "justice may not have been done" within the meaning of Mass. R.Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001). The Commonwealth appealed, and we vacated the order granting the defendants a new trial, concluding that the prosecutor's closing argument was not improper and that the newly discovered evidence did not "cast[ ] real doubt on the justice of the conviction[s]." Commonwealth v. Caillot, 449 Mass. 712, 720-722, 726, 871 N.E.2d 1056 (2007) (Caillot I), quoting Commonwealth v. Grace, 397 Mass. 303, 305, 491 N.E.2d 246 (1986). In Caillot I, we considered only the Commonwealth's claims of error, reserving the defendants' claims of error for their direct appeal from their convictions. Caillot I, supra at 713 n. 2, 871 N.E.2d 1056. The defendants now appeal from their convictions and from the denial of certain claims of error presented in their various motions for postconviction relief. We affirm the judgments of conviction, decline to grant the defendants a new trial or other relief in connection with their postconviction motions, and discern no basis to grant relief under G.L. c. 278, § 33E.

For ease of reference in evaluating the defendants' claims on appeal, we restate the factual and procedural background of this case, noting that it essentially mirrors that appearing in Caillot I, supra at 713-719, 871 N.E.2d 1056. The jury could have found that, at approximately 5:45 P.M. on November 19, 1996, Desmond Campbell was standing with his girl friend on the front steps of the three-family house in which he lived at 46 Winthrop Street in Brockton, on the corner of Winthrop Street and Warren Avenue, when he observed a green automobile similar to a Dodge Stratus drive by and stop outside his house behind a bus.² He observed a black male in the passenger seat staring at him. The same automobile passed by a few minutes later. A minute or two later, Desmond³ saw a black male who was approximately six feet tall and who was wearing a black coat, a dark "hoodie" (hooded sweatshirt), blue jeans, and black boots climb down a wall at the nearby house at 451 Warren Avenue. The man went to a white van that was parked in front of the house. Two other men ran behind the van. Fearing that they were enemies (although he did not recognize anyone in the automobile), because he had gotten into many fights in Brockton, he grabbed his girl friend and went into his younger brother Daryl's bedroom on the second floor. He told Daryl that there were three males across the street. Daryl opened the bedroom window to see who was outside, and immediately heard the sound of multiple gunshots.

After the shooting stopped, Daryl looked out the window and saw two of the men, both dark skinned and wearing black clothing (one wearing a hoodie), get into a green automobile parked up the street. One man got into the front passenger seat, and the other got into the back seat behind the driver. The automobile drove off down Winthrop Street. The police later recovered twenty discharged nine millimeter cartridge casings from the lawn of 451 Warren Avenue. No one was injured during the shooting.

Desmond's aunt, Phyllis Murphy, and her boy friend lived in the first-floor apartment at 46 Winthrop Street. Teriell Murphy and Delicia Turner are Phyllis's children. The father of Turner's child was Carlo Clermy, the victim.

Turner quickly telephoned Teriell. As a result of the telephone call, Teriell and the victim drove to 46 Winthrop Street in Turner's automobile, a light blue Honda. When they arrived, the police already were there. They spoke with some of their relatives about what had occurred, and departed in the Honda. They drove around Brockton, angry, upset, and eager to retaliate.

The victim was driving. While heading west on Nilsson Street, he stopped at a stop sign at the intersection of Nilsson Street and Warren Avenue, about one-half mile from 46 Winthrop Street. As Teriell was trying to light a "blunt" (marijuana cigar), a white tow truck hauling a station wagon came around the corner. A light green, four-door Chrysler Cirrus then followed the tow truck around the corner, to the left of the Honda, shining its headlights on the Honda. The Chrysler stopped, and the rear door on the driver's side opened. Teriell ducked down and slouched in his seat, and heard multiple gunshots. The driver's side window of the Honda blew out, followed by the passenger's side window, and glass shattered all around. The victim was shot. The Honda drifted forward and to the left, and crashed into a utility pole.

Teriell grabbed a nine millimeter semiautomatic pistol from the victim's waist area and got out of the automobile. Teriell saw a shadowy figure wearing dark clothing getting into the back seat of the Chrysler behind the driver. The Chrysler drove away, traveling east on Nilsson Street. Teriell chased on foot after the automobile, attempting to shoot at it, but the gun would not fire because the safety was on. Teriell "cocked the hammer" and a bullet fell to the ground. Teriell repeatedly fired at the Chrysler, shooting until he had no ammunition left. The Chrysler passed the tow truck in front of it, at which time Teriell stopped shooting. He left the gun near a shed behind a variety store and returned to the Honda.⁴ Police arrived at the scene at approximately 6:16 P.M. The victim died as a result of gunshot wounds to his neck and back.

Officer Thomas M. Spillane of the Brockton police department promptly arrived at the scene, and asked Teriell, who was shaking and appeared disoriented, what had happened. Teriell said he did not know; "[s]omebody just started shooting at us."

While Officer Spillane was securing the scene, he was directed to go to Good Samaritan Hospital in Brockton, approximately three miles away, arriving there at approximately 6:40 P.M. Outside the entrance to the emergency room, Officer Spillane observed a green, four-door Chrysler Cirrus parked in a spot designated for handicapped drivers. The rear driver's side window and the rear passenger's side window were gone, there was glass inside the automobile, and there was blood on the rear seat and carpet.

Hospital personnel directed Officer Spillane to one of the defendants, Manuel Santos, who was wearing a dark hoodie and standing near the main door of the emergency room. Santos admitted that he had been driving the green Chrysler Cirrus parked outside of the emergency room. He stated that he had been heading south on Main Street when someone tried to carjack him. Santos explained that someone had started shooting at him during the attempted carjacking, and he had brought his friend Caillot to the emergency room. Officer Spillane brought Santos outside to two other police officers, and told them to handcuff him and place him in the police cruiser. One of the officers gave Santos Miranda warnings, which Santos said he understood, and then handcuffed Santos and placed him in custody in the back seat of a police cruiser. While walking to the cruiser, Santos told the officers that he "didn't do anything," but knew who did, that he had been carjacked, and asked to speak with a particular Brockton police detective, who was on his day off. The officer turned the radio inside the cruiser off after placing Santos in the back seat. A few moments later, Santos knocked on a cruiser door, and when the officer opened the front driver's door, Santos asked, "What do you think, I murdered someone?" At the time, that officer was not aware that anyone had been killed. She told Santos that the detectives would talk to him.

A few minutes later, Detective Arthur McLaren of the Brockton police department arrived. He turned off his portable radio and joined Santos in the back seat of the cruiser. Santos asked if Caillot "was going to be okay," and the detective said that he had only been shot in the hand. Santos told Detective McLaren that he had been driving down Warren Avenue when someone tried to hijack his vehicle. Detective McLaren asked if Santos knew who had shot at his vehicle, and Santos replied that it was "the same nigger that had shot, who had killed Steven." Santos stated that Steven was Steven Auguste, Caillot's first cousin, who had been killed three months earlier. Santos also repeatedly blurted out, "Six feet under or life," and asked Detective McLaren if he knew whether "the other party had died." Detective McLaren had said nothing about anyone being shot.

Meanwhile, inside the hospital, Officer Spillane spoke with Caillot, a black male, who lay on a gurney in the emergency room with his right hand heavily bandaged, and blood seeping through the bandage. Caillot was wearing a navy blue jacket, black sweatpants, and black sneakers. Officer Spillane asked him what had happened. At first, Caillot stated that he could not recall, but later stated that he had been lying in the back seat of an automobile, put his hand in the air, and got shot. He said he...