Com. v. Dinkins

• Decision Date: 08 July 1993
• Citation: 415 Mass. 715,615 N.E.2d 570
• Parties: COMMONWEALTH v. William E. DINKINS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 570

615 N.E.2d 570

415 Mass. 715

COMMONWEALTH v. William E. DINKINS.

Supreme Judicial Court of Massachusetts Suffolk.

Argued March 2, 1993.

Decided July 8, 1993.

John R. Campbell, Boston, for defendant.

Paul B. Linn, Asst. Dist. Atty. (Daniel C. Mullane, Asst. Dist. Atty., with him) for Com.

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

O'CONNOR, Justice.

After a jury trial, the defendant was convicted of the murder in the first degree of Junior R. Fernandez, assault with the intent to kill Francisco Rodriguez, and unlawfully carrying a firearm. The defendant appeals from these convictions, claiming error in: (1) the denial of his motion for a required finding of not guilty of each crime charged; (2) the denial of his motion to suppress the out-of-court and in-court identification of him by two witnesses; (3) the admission of a detective's testimony concerning an out-of-court photographic identification of the defendant by Francisco Rodriguez; (4) the judge's instructions to the jury concerning the burden of proof; and (5) the restriction of the defendant's cross-examination of a Commonwealth witness. The defendant also argues (6) that the defendant was denied a fair trial by the prosecutor's argument to the jury based on facts not in evidence. Lastly, the defendant requests that, in the event we reject his claims of error regarding the murder conviction, we exercise our power under G.L. c. 278, § 33E (1990 ed.), to order a new trial or reduce the verdict to a lesser degree of guilt.

We summarize the evidence in the light most favorable to the Commonwealth. Commonwealth v. Cordle, 404 Mass. 733, 734, 537 N.E.2d 130 (1989). Francisco Fernandez, Junior Fernandez's father, arrived at the Fernandez market at about 10 P.M., February 17, 1990, to help close the market for the night. He noticed two young men sitting on the steps of the house next door to the market. He recognized one of them, the defendant, as a frequent customer of the market. At about 10:30 P.M., Junior Fernandez's uncle, Francisco Rodriguez (Rodriguez) left the market and crossed the street to his Thunderbird automobile. He noticed two young men on the porch of the house next to the market. One of them was the defendant, whom he had seen in the market several times. A few minutes later, while Rodriguez was still in his vehicle, Junior Fernandez left the market and crossed the street to another automobile, a Datsun which his brother, William Fernandez, owned. The Datsun was parked directly behind the Thunderbird. When Junior Fernandez started the Datsun, the defendant and his companion walked across the street, the defendant going in front of the Thunderbird and his companion going behind the Datsun. The defendant propped himself up on the front bumper of the Thunderbird and pointed a gun at Rodriguez, who quickly laid down on the front seat. Rodriguez heard three shots and his windshield was shattered. Rodriguez crawled from his vehicle toward the market, still hearing gunshots behind him. When the gunshots had stopped, Rodriguez went to the Datsun and found Junior Fernandez bleeding from a bullet wound in his head. Junior Fernandez died soon afterwards.

Shortly before the killing, William Fernandez, Junior Fernandez's brother and the owner of the vehicle in which Junior Fernandez was killed, had been summoned to testify at the trial of a person who had been accused of shooting another man in front of the Fernandez market in March, 1989. That trial was scheduled for late February, 1990, just a few days after the shooting of Junior Fernandez. William Fernandez intended to identify the assailant in that case.

There is no contention that the defendant lawfully carried a firearm. The defendant's principal position as to that charge and the charge of assault with intent to kill Rodriguez is simply that he was misidentified. It is clear that a finding was warranted that the defendant unlawfully carried a firearm and used it to assault Rodriguez with intent to kill him. On the murder indictment, the Commonwealth proceeded on the theory that the defendant had participated in a joint venture with his companion to murder Junior Fernandez. The Commonwealth's proof was sufficient to warrant the jury's verdict in that regard. The evidence set forth above disclosed that the defendant and his companion were together for at least thirty minutes facing the victims' automobiles, that, when Junior Fernandez emerged from the market and went to his vehicle, the defendant and his companion simultaneously walked across the street to the vehicles, and that the defendant had a gun. The jury reasonably could have inferred that the companion also had a gun that he used to shoot Junior Fernandez and that the two simultaneous shootings were not mere coincidence but, instead, were concerted actions designed by the two men to result in the deaths of the two victims.

The critical question with respect to whether the evidence set forth above was sufficient to warrant a finding of the defendant's guilt, as a joint venturer, of murder of Junior Fernandez in the first degree, "is whether the evidence ... was sufficient to warrant findings that the defendant was present at the scene of the attack on [Junior Fernandez], that he knew of [the assailant's] criminal intentions, and that by agreement he was willing and available to help [the assailant] if necessary.... For joint venturer criminal liability, the defendant's knowledge requirement is satisfied by his or her knowledge that there is a substantial likelihood that the crime will be committed by the other person." (Citations omitted.) Commonwealth v. Walsh, 407 Mass. 740, 743, 555 N.E.2d 593 (1990). The evidence was sufficient to show that the defendant was present at the scene of the attack on Junior Fernandez, and that that attack and the defendant's attack on Rodriguez were mutually contrived by the defendant and his companion as a joint endeavor to kill the two victims. The judge did not err in denying the defendant's motion for a required finding of not guilty of any of the charges set forth in the three indictments.

Before the trial, the defendant moved to suppress all out-of-court and in-court identifications of the defendant, claiming that the out-of-court identifications were made under circumstances that were unnecessarily suggestive and conducive to irreparable mistake, and that the in-court identifications had no independent source. After an evidentiary hearing, a judge denied the motion--erroneously, the defendant says. The evidence specifically sought to be suppressed consisted of out-of-court and in-court identifications by Rodriguez and Francisco Fernandez. We recite the material findings of the motion judge which, although challenged in part by the defendant, we are satisfied are supported by the evidence presented at the hearing. The motion judge found in material part as follows: Detective William C. Dwyer of the Boston police department's homicide unit went to the scene of the shooting on the night it occurred, February 17, 1990. "He brought Rodriguez to the area police installation and showed him a book consisting of approximately 200 photographs of black males under 20 years of age. The photographs [were] arranged four to each side of a page, so that eight photographs may be observed when the book [was] open and two pages [were] displayed. Detective Dwyer never told Rodriguez which photographs to select and did not call his attention to any particular photograph(s). He merely asked Rodriguez to go through the book carefully to see if he could find a photograph of the shooter or of the man who crossed the street with the shooter.... Rodriguez had just experienced the murder of his nephew, and had himself been the victim of an assault with a dangerous weapon. Consequently, he was extremely upset, nervous and fearful at the time.... When Rodriguez came to the defendant's photograph, he became even more visibly shaken. He told Detective Dwyer that the shooter 'looks like this guy here,' referring to the defendant's photograph, but said he could not be sure.... Detective Dwyer had information that members of the so-called Kings Gang were known to hang around Fernandez Market, and there was a high degree of gang activity in Dorchester at the time. Accordingly, because he did not have a positive identification of the first suspect and there was a second suspect who was unidentified, he then showed Rodriguez 10 photographs of persons believed to be members of the Kings Gang. All 10 were young black males. At that time, the defendant was not known as a possible member of that gang, and therefore his picture was not included in the group of 10. Rodriguez did not select any photographs from that array.... Thereafter, Detective Dwyer received information that there was some relationship or interaction between the Kings Gang and another known gang. Accordingly, Detective Dwyer put together an array of 29 photographs of persons believed to be members of that second gang. All 29 were young black males. Once again, the defendant's picture was not in that array. Those 29 photographs were shown to Rodriguez on February 19, 1990, and he did not select any of them.... Approximately one month later Rodriguez called Detective Dwyer and asked him if he could look at the photographs again. Detective Dwyer assembled an array of nine photographs of young black males. The defendant's photograph (which was another print of the same photograph which Rodriguez had tentatively identified previously) was included. Also included was one photograph from the 29-picture array which Rodriguez viewed on February 19.... Rodriguez came into the police station on March 21, 1990, and viewed the array of 9 photographs. Detective Dwyer did absolutely nothing to suggest that Rodriguez should select any particular photograph. After perusing the group of pictures, Rodriguez selected the photograph of the...