Com. v. Cohen

• Decision Date: 07 April 1992
• Citation: 412 Mass. 375,589 N.E.2d 289
• Parties: COMMONWEALTH v. Columbus T. COHEN, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 289

589 N.E.2d 289

412 Mass. 375

COMMONWEALTH v. Columbus T. COHEN, Jr.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued March 2, 1992.

Decided April 7, 1992.

Esther J. Horwich, Boston, for defendant.

Mark D. Zanini, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and NOLAN, LYNCH and O'CONNOR, JJ.

NOLAN, Justice.

The defendant, Columbus T. Cohen, Jr., appeals from his convictions of the murder in the first degree of Kevin E. Shivers and the murder in the second degree of Johnnie Edward Shivers. The defendant contends on appeal that: (1) the trial judge erred in denying his motion for required findings of not guilty; (2) specific instances of the prosecutor's conduct were improper; (3) defense counsel rendered ineffective assistance; and (4) testimony of witnesses improperly conveyed a third person's consciousness of the defendant's guilt. ¹

Testimony presented at trial warranted the jury's finding the following facts. On the evening of February 1, 1986, Mary Pitts, Victoria Brown, Linda Woodard, Kevin Shivers, and a friend known as "Eddie Murphy" went to the Carousel Lounge on Columbia Road in the Dorchester section of Boston. Mary Pitts was the girl friend of Kevin Shivers, and Victoria Brown was the girl friend of Kevin's brother, Johnnie Shivers. After the group found a booth to sit in, the defendant approached Victoria Brown and asked her to dance. After they danced, Victoria returned to the booth and sat down, while the defendant returned to his table.

A short time later, the defendant returned and asked Victoria for another dance, but her boy friend's brother, Kevin, strongly objected. The defendant maintained a hostile expression but remained silent while Kevin angrily confronted him. The confrontation ended with the defendant saying, "I'll be back," in a threatening manner. The defendant then walked to his table, finished his beer, and left the premises shortly thereafter.

About forty-five minutes after this confrontation, Johnnie Shivers entered the bar. The defendant returned about the same time with an unidentified companion. Johnnie Shivers, the defendant, and the other man all stood near the exit. Johnnie and Kevin Shivers then left the bar, and the defendant and his companion followed them outside.

Three or four minutes later, Mary Pitts left the bar and, standing on the sidewalk, she observed the Shivers brothers, the defendant, and the defendant's companion in a group in the middle of Columbia Road. The defendant and his companion faced the Carousel Lounge while the Shivers brothers had their backs to the lounge. Mary Pitts heard three shots ring out from the area where this group was standing. Both she and Victoria Brown, who had left the bar shortly after Mary had left also heard three gunshots, and saw Johnnie Shivers, who had been shot in the back, bend over. As Johnnie bent over, both the defendant and his companion pushed him aside, as if to open a line of fire toward Kevin Shivers, who had started to run away. Two more gunshots rang out and Kevin Shivers was struck in the back as well. The defendant and his companion then fled from the scene.

As Johnnie Shivers lay on the sidewalk, he said to Mary Pitts, "I've been shot; call the ambulance, call the ambulance." As Kevin Shivers struggled to get into Mary Pitts's car, he said to her, "They shot me, too, in the back." ² The victims died shortly thereafter as a result of their wounds. Although the two bullets recovered from the brothers were of the same caliber, color, and composition, they were too badly damaged to determine if they had been fired from the same gun. The police never recovered a murder weapon.

Several hours later, at 5 A.M., the police went to 31 Browning Avenue, the defendant's father's apartment, which is about one and one-half miles from the Carousel Lounge. While stating to the police that the defendant was not home, the defendant's father pointed to a room in the apartment and allowed the police to enter. The police then discovered the defendant in a closet in that room.

After being given the Miranda warnings, the defendant told the police officers that he had been in the Carousel Lounge earlier that evening where he had danced with a woman and where there had been an argument. The defendant told the police, however, that he left the bar and went to his mother's apartment, which was across the street from the bar, where he watched a movie, but that he had left the apartment at 10:30 P.M., and then walked home to his father's apartment. At this time, the defendant told the police that he had not returned to the Carousel Lounge that evening. ³

1. Motion for required findings of not guilty. The defendant argues on appeal that the judge should have granted his motion for required findings of not guilty because there were insufficient facts to support his convictions on a theory that he directly committed the murders or on a theory that he was a joint venturer. The major thrust of the defendant's argument is that there is no direct evidence that he or his unidentified companion fired one or both of the fatal shots, and that it is possible that the gunshots could have been fired from one of the buildings across the street from the Carousel Lounge. There was no physical evidence directly linking the defendant to the shootings, and the murder weapon was never located. In reviewing the denial of a motion for required findings of not guilty, we determine whether the evidence offered by the Commonwealth, together with reasonable inferences therefrom, when viewed in the light most favorable to the Commonwealth, was sufficient to persuade a rational trier of fact of every element of the crime charged. Commonwealth v. Campbell, 378 Mass. 680, 686, 393 N.E.2d 820 (1979), and cases cited.

The defendant first attacks the prosecution's theory that he directly fired the fatal shots by arguing that there was insufficient evidence that he had malice aforethought and that he himself fired the fatal shots. The defendant also argues that there was insufficient evidence of deliberate premeditation in the murder of Kevin Shivers. From the evidence at trial, however, the jury would have been warranted in concluding that the defendant had the requisite degree of malice aforethought. Malice aforethought includes "any intent to inflict injury on another without legal excuse or palliation." Commonwealth v. Casale, 381 Mass. 167, 171-172, 408 N.E.2d 841 (1980). After a confrontation in the bar with Kevin Shivers, the defendant warned the victim, "I'll be back," in a threatening manner. Because the defendant left the bar and later returned with an unidentified companion, with whom the defendant followed the victims from the bar, the jury were warranted in concluding that the defendant returned to the bar to settle the score with and inflict injury on Kevin Shivers. The jury were also warranted in concluding that the defendant and his companion confronted the victims in the street, where either the defendant or his companion, or both of them, shot the victims in the back. The use of a deadly weapon, such as a gun, generally supports a finding of malice. Commonwealth v. Robertson, 408 Mass. 747, 756, 563 N.E.2d 223 (1990).

Similarly, from the evidence at trial, the jury reasonably could have concluded that the defendant acted with deliberate premeditation in the murder of Kevin Shivers. After the defendant or his companion had shot Johnnie Shivers, together they pushed him out of the way so that one of them could get a clear shot at the fleeing Kevin Shivers. Although there were only seconds between the shooting of Johnnie Shivers and that of Kevin Shivers, that was sufficient time for both the defendant and his unidentified companion to form an intent to kill Kevin Shivers after deliberation and reflection. See Commonwealth v. Garabedian, 399 Mass. 304, 312, 503 N.E.2d 1290 (1987), and cases cited.

There is no merit to the defendant's contention that the lack of direct evidence that he fired the fatal shots required directed verdicts. The defendant relies primarily on our reasoning in Commonwealth v. Salemme, 395 Mass. 594, 481 N.E.2d 471 (1985), in which we held that, where there are two possible assailants, the Commonwealth has the burden of proving beyond a reasonable doubt that the defendant fired the fatal shot. Id. at 601, 481 N.E.2d 471. The defendant's reliance on Salemme is misplaced, however, because in that case the Commonwealth abandoned a joint venture theory. Id.

In this case, the Commonwealth presented a theory that the defendant was guilty either directly or as a joint venturer. The evidence warranted a conclusion that the defendant was guilty either as a principal or a joint venturer, and such a determination is proper. See Commonwealth v. Podlaski, 377 Mass. 339, 345, 385 N.E.2d 1379 (1979); Commonwealth v. Britt, 358 Mass. 767, 769-770, 267 N.E.2d 223 (1971). In these circumstances, the absence of direct proof by way of an eyewitness who saw the defendant shoot the victims is not damaging to the Commonwealth's case so long as there is competent circumstantial evidence that establishes the defendant's guilt, either directly or as a joint venturer, beyond a reasonable doubt. See Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (1989). An inference drawn from the circumstantial evidence in this case that the defendant or his unidentified companion, or both, fired the fatal shots need not be necessary or inescapable so long as it is reasonable and possible. See Commonwealth v. Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977).

The inference that the defendant or his companion, or both, fired the fatal shots was both a reasonable and possible one for the jury to draw in this case. Mary Pitts testified that the gunshots which she heard came from the area where only the defendant, his companion, and the victims had gathered. Furthermore, there was evidence that the defendant fled...