Com. v. Drumgold

• Decision Date: 18 July 1996
• Citation: 668 N.E.2d 300,423 Mass. 230
• Parties: COMMONWEALTH v. Shawn DRUMGOLD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 300

668 N.E.2d 300

423 Mass. 230

COMMONWEALTH v. Shawn DRUMGOLD.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Nov. 6, 1995.

Decided July 18, 1996.

Rosemary Curran Scapicchio, Boston, for defendant.

Paul B. Linn, Assistant District Attorney, for Commonwealth.

Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.

O'CONNOR, Justice.

A jury found the defendant guilty of murder in the first degree of Darlene Tiffany Moore (victim) with deliberate premeditation. Following the conviction, the defendant moved for a "mistrial," which the judge properly treated as a motion for a new trial. The defendant also filed a separate motion for a new trial which raised additional issues. Both motions were denied. The defendant appeals from his conviction and from the denial of the aforementioned motions. We affirm the conviction and the orders denying the motions.

This appeal presents the following issues: (1) Was the defendant's pretrial motion to dismiss the murder indictment with prejudice on the ground that the integrity of the grand jury had been impaired by a misleading presentation of evidence correctly denied? (2) Was the defendant's pretrial motion to dismiss the indictment with prejudice due to alleged egregious prosecutorial misconduct properly denied? (3) The defendant sought the testimony of a person who refused to testify pursuant to the Fifth Amendment to the United States Constitution. The judge ruled that the proposed witness need not testify. Another person was willing to testify on direct examination by the defendant but, claiming Fifth Amendment protection, expressed unwillingness to submit to cross-examination by the Commonwealth. The judge ruled that that person could not testify on direct examination without being available for cross-examination. The proposed witness did not testify. The correctness of the judge's rulings are in issue. (4) During cross-examination of the defendant, the prosecutor offered, and the judge admitted, evidence of the defendant's prior convictions of unlawful possession of a firearm, defacing the serial number of a firearm, and unlawful possession of ammunition. Although there was no objection at trial, the defendant now challenges the admission of the convictions. (5) In his closing argument to the jury, did the prosecutor improperly express his personal opinion about the defendant's guilt and about the lack of credibility of the codefendant Terrance Taylor? Did the prosecutor's argument improperly invite jury sympathy for the victim? (6) At the close of the Commonwealth's case-in-chief, the judge allowed the codefendant Taylor's motion for a required finding of not guilty. Later, in his final instructions to the jury, the judge instructed on joint venture, which the defendant argues was error because it was inconsistent with Taylor's acquittal. (7) Did the judge otherwise commit reversible error in his jury instructions with respect to (a) allocation of the burden of proof, (b) limiting the case to a single issue of identification, as the defendant asserts he did, or (c) the doctrine of transferred intent? Also, did the judge erroneously instruct the jury, as the defendant contends he did, "to consider the acquitted codefendant's claim of Fifth Amendment privilege as substantive evidence in this case?" (8) Did the judge err by denying the defendant's postconviction motion for a mistrial (new trial) after an alternate juror disclosed that, on the eve of arguments and instructions to the jury, she and other jurors conversed among themselves and with the chief court officer about the alternate juror's desire for a mistrial? (9) After obtaining new counsel, the defendant moved for a new trial on the ground that he had been denied effective assistance of counsel, as we shall discuss. We shall consider whether the defendant's motion was properly denied. (10) The final issue is whether relief under G.L. c. 278, § 33E (1994 ed.), is appropriate.

We set forth some of the pertinent evidence introduced at trial as follows. On the evening of August 19, 1988, the victim was sitting on a mailbox near the corner of Humboldt Avenue and Homestead Street in the Roxbury neighborhood of Boston. Chris Chaney was sitting on an adjacent mailbox next to the victim. A crowd of teenagers surrounded the victim and Chaney. Directly behind the mailboxes stood the Boston Edison plant which was enclosed by a chain-link fence. At approximately 9:30 P.M., two or three men wearing black clothing and Halloween masks approached the group from behind, from the direction of the Boston Edison plant, and fired several shots into the crowd. Three bullets struck and killed the victim.

About two weeks before the shooting, Christopher Cousins visited his friend, Romero Holliday, in his hospital room. Holliday was hospitalized due to injuries he had sustained from a gunshot. The defendant and Terrance Taylor (the codefendant who was acquitted) were also in Holliday's room. Holliday told the defendant and Taylor that Chris Chaney and Mervin Reese had shot him, and the defendant and Taylor responded that they would "get" Chaney and Reese.

At about 6 P.M. on the evening that the victim was killed, Vantrell McPherson saw the defendant and Taylor about two blocks from the place where the shooting occurred. McPherson testified that the defendant was wearing a black and white Adidas sweatsuit. McPherson heard Taylor say to the defendant, "Come on, Shawn, you know we got to do this."

Later that evening, another witness met the defendant at a different location situated two blocks from the scene of the shooting. The witness testified that Taylor approached them and told the defendant that he knew where they could find Chaney and Reese. The witness further testified that he had seen Taylor and the defendant walk away together and that both men were carrying guns. About forty-five minutes later, according to this witness, Taylor and the defendant returned and, when the witness asked what had happened to the guns, Taylor replied that the guns were "hot" and that he had "stashed" them someplace.

Mary Alexander lived less than one block from the scene of the shooting. When she heard the gunfire she ran outside to bring her son and her neighbor's child into her house. While standing in her doorway, she saw the defendant and another man climb over the Edison plant fence and walk from the scene of the shooting toward Homestead Street. She testified that both men were wearing black or dark blue sweatshirts and jeans and that the defendant tucked a gun into his waistband.

Tracy Peaks lived upstairs from Alexander. She, too, on hearing gunfire, ran downstairs to bring her sister inside. She saw the defendant, whom she knew, and another man walk past the house. Peaks testified that the defendant was wearing a black turtleneck, black jeans and black shoes.

Six Commonwealth witnesses testified that they had seen the gunmen. Four of those witnesses testified that they had seen only two gunmen. The other two witnesses testified to having seen three gunmen. The six witnesses testified that the gunmen were dressed in black and were wearing Halloween masks. Three of the witnesses testified that one of the gunmen was wearing a black Adidas sweatsuit with a white logo, and one testified that both men that he saw were wearing Adidas sweatsuits.

1. Impairment of grand jury proceedings. "[A]t the very least the grand jury must hear sufficient evidence to establish the identity of the accused ... and probable cause to arrest him" (citations omitted). Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982). In addition, dismissal of an indictment is required when "the defendant has shown that the integrity of the grand jury proceedings was impaired (Commonwealth v. O'Dell, 392 Mass. 445, 449-450, 466 N.E.2d 828, [1984] )." Commonwealth v. Mayfield, 398 Mass. 615, 620, 500 N.E.2d 774 (1986). However, "it is not enough for dismissal of an indictment that false or deceptive evidence was presented to the grand jury. Two further elements normally must be shown. First, our cases have required a showing that false or deceptive evidence was given to the grand jury knowingly and for the purpose of obtaining an indictment.... Second, the defendant must show that the presentation of the false or deceptive evidence probably influenced the grand jury's determination to hand up an indictment. This requires a showing not only that the evidence was material to the question of probable cause but that, on the entire grand jury record, the false or deceptive testimony probably made a difference." Id. at 621-622, 500 N.E.2d 774.

Detective Richard Walsh was one of the two grand jury witnesses. He testified that the defendant and the codefendant, Terrance Taylor, had given statements to the police and he summarized, or at least purported to summarize, these statements. The defendant asserts that the summaries did not fairly reflect the statements.

The record shows that the defendant and Taylor told the police that they had spent the evening of the shooting riding around in a black car driven by Paul Duran. Antonio Anthony was with them. They stopped for about one-half hour at Taylor's girl friend's house at 23 Sonoma Street, Roxbury. They drove from there to the scene of the shooting.

The record shows that Taylor stated that Tyron Brewer had stopped Duran's vehicle on Humboldt Avenue and told them about the shooting. Duran drove to the scene where a crowd was standing around the victim. Taylor saw a girl named "Raina" or "Renee," whom he knew. He asked the girl if she knew the victim. When she said "yes," he told her to go get the victim's mother. Duran then drove back to 23 Sonoma Street, where he dropped off Taylor, Anthony, and the defendant. These three stayed at 23 Sonoma Street briefly and then walked to a restaurant in the Grove Hall area. From there Taylor took a cab home for the night.

According...