Com. v. Gendraw

• Decision Date: 03 September 2002
• Docket Number: No. 00-P-1275.,00-P-1275.
• Court: Appeals Court of Massachusetts
• Parties: COMMONWEALTH v. Antonio GENDRAW.

774 N.E.2d 167

55 Mass. App. Ct. 677

COMMONWEALTH v. Antonio GENDRAW.

No. 00-P-1275.

Appeals Court of Massachusetts, Suffolk.

Argued February 6, 2002.

Decided September 3, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Richard J. Shea, Boston, for the defendant.

Susanne Levsen Reardon, Assistant District Attorney, for the Commonwealth.

Present: BECK, SMITH, & KANTROWITZ, JJ.

SMITH, J.

On December 16, 1997, a Suffolk County grand jury returned an indictment against the defendant, Antonio Gendraw, for murder in the first degree. On May 17, 1999, the defendant was convicted by a jury of murder in the second degree. On appeal, the defendant claims the following errors: (1) the denial of his motion to suppress his statements; (2) the refusal of two judges to accept his Alford plea (North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 [1970]); (3) the denial of his motion for a required finding of not guilty; and (4) improper instructions to the jury on joint venture and malice. He also claims that the cumulative errors in the course of the trial created a substantial risk of a miscarriage of justice. Finally, the defendant contends that his trial counsel provided ineffective assistance of counsel.

Facts. The facts that the jury could have found are not significantly different from the findings of fact made by the motion judge in regard to the defendant's suppression motion and are as follows.

In November of 1997, the victim, Barry Handy, was living with his girlfriend, Christina Davis, and their two sons at 18 Warner Street in the Dorchester section of Boston. At that time, Handy was selling cocaine at night and sleeping during the day. On November 10, 1997, at approximately 2:00 A.M., the telephone rang and Davis answered. The caller asked for Handy. Davis did not recognize the man's voice and gave the phone to Handy. After a conversation, Handy got dressed and left the apartment. Later that night, Handy was fatally shot several times outside his Dodge Stratus automobile on Bird Street in Dorchester. He had six gunshot wounds in his chest, back, leg, and hand.

Several Boston police officers were dispatched to the scene to perform various parts of the investigation. The first officers arriving at the scene noticed that the driver's side window of the Dodge Stratus was broken, with glass on the inside of the car. A pair of jeans hung out of the open trunk, and a baby stroller was located about three feet behind the car near a bag of marijuana. Drugs were found in the pocket of the jeans.¹

One of the officers walked up Bird Street to survey the area. A neighbor alerted him to a hubcap leaning against the sidewalk, about twenty yards from the crime scene. The officer then drove around the area in an attempt to find the vehicle to which the hubcap belonged. He found a brown Toyota Camry on Baker Street which was missing a similar hubcap. Its front tire was flat. The police officers later determined that the vehicle was registered to an Alecia Facey of 19 Winter Street in Dorchester.

The officers at the scene continued their investigation by interviewing residents of the Bird Street area. Some residents told the officers that at approximately 3:30 A.M. they had been awakened by the sound of gunfire. Three witnesses said that they saw two people get out of the back seat of a white car and run down Bird Street. Another man, who had been on the driver's side of the vehicle, went around to the passenger side, opened the door, and pulled a man out onto the ground. He then went to the back of the vehicle, opened the trunk, and began throwing things out of the trunk. The man then went back to the person lying on the ground and shot him once. The shooter then returned to the trunk, looked into it, and began throwing more items out of it. One of the witnesses saw the shooter then shoot the victim again, while standing over him. A few seconds later, a brown Toyota, its headlights out, with a flat tire on the right side, came down the street the wrong way. Someone in the car said to the shooter, "Come on!" The shooter got into the front passenger side of the Toyota and the car drove away from the scene. None of the witnesses could identify any of the people involved in the shooting or in the escape from the scene.

Boston police detectives Robert Merner and Thomas O'Leary arrived at the scene at approximately 4:50 A.M. O'Leary learned that a brown Toyota Camry found about one mile from the murder scene may have been involved in the murder. Sometime after 7:00 A.M., the detectives, while observing that vehicle, noticed a male and a female looking at the vehicle before walking away toward Quincy Street. Those individuals were the defendant and Alecia Facey, the owner of the vehicle. Merner followed the two individuals in his vehicle and saw them walk into 19 Winter Street. Merner then rejoined O'Leary, and the two detectives went to Facey's apartment to interview her about her vehicle.

When the detectives knocked, Facey answered the door and allowed them into the apartment. They first looked around the apartment. Approaching the bedroom, the detectives saw the defendant, known to Merner as Antonio Gendraw, getting out of bed, causing a beeper to fall to the floor. O'Leary asked the defendant if he had seen them on Quincy Street minutes earlier; the defendant admitted that he had been there, volunteering that he and Facey were coming from "the store."

The three went into the parlor, where O'Leary asked if he could take their statements at homicide headquarters. Facey agreed. The defendant, after telephoning his mother, declined, telling the detectives that first he would need to speak to his lawyer. The defendant offered, however, to be interviewed in the apartment without contacting counsel. O'Leary demurred, telling the defendant that he would speak with him at another time.

O'Leary, Merner, and Facey then proceeded to homicide headquarters, where Facey was questioned by the detectives. She initially told them that on November 9 (the day before the murder) she had parked her car on Fifield Street. It was not missing a hubcap. On November 10, she realized that her keys were gone. After further questioning by the police, she admitted that she had lied to the police about her missing car keys. She then told them that when the defendant came home in the morning of November 10, he told her that the Toyota had a flat tire and that if the police came to question her she was to tell them that she could not find her keys and to report that her car had been stolen. The defendant also told her not to say anything otherwise to the police.

On November 13, 1997, at about 8:00 P.M., Detectives O'Leary and Merner returned to 19 Winter Street to interview Facey. The defendant answered the door and, responding to O'Leary's request that he be interviewed, invited the detectives in, took them to the kitchen, and closed the door. The three sat at the kitchen table. O'Leary asked the defendant what had happened on the night of November 10, 1997, and whether he wanted "to get anything off his chest."² The defendant responded that he had not seen the assailants because they had had masks covering their faces. O'Leary was surprised at the defendant's response and asked the defendant to explain. The defendant said that he had gone to meet the victim on Bird Street after the victim had "beeped" him. He was going to sell the victim sixty-two grams of cocaine. The defendant had parked the Toyota on Bird Street and was walking towards the victim's vehicle when two masked men jumped out and started firing guns. The defendant stated that he then had run for his life. Prodded by O'Leary as to why the victim was murdered, the defendant said that the victim had fought with several men a few days before the murder, men who had thrown bottles at the victim and given him a black eye.

The defendant told the detectives that he then returned to his car and, with the lights out, made a U-turn and struck the curb, resulting in a flat tire. He then drove down Bird Street and saw the victim lying in the street. He drove around the corner, parked the vehicle, and ran to his mother's house. He stayed there for a period of time and then walked to 19 Winter Street, arriving around 7:00 A.M.

The interview with the defendant lasted approximately forty-five minutes, during which the defendant sweated profusely. Twice the defendant declined to be taperecorded. At one point, the defendant got up to get a glass of water, stating that he was in "the hot seat." The interview concluded when the defendant escorted the detectives to the door. Merner and O'Leary had not given the defendant Miranda warnings prior to or during the interview.

Between November 14, 1997, and November 18, 1997, the police executed a search of the Toyota pursuant to a warrant and recovered a ski mask as well as a black stocking that was in a black jacket found in the back seat. The right front tire was flat and was missing a hubcap. The ignition was intact, and there were no signs of forced entry. On November 19, 1997, the defendant was arrested and charged with Handy's murder.

1. Denial of the defendant's motion to suppress. The defendant claims that the motion judge erred when he ruled that Miranda warnings were not required prior to or during the defendant's statement to Detectives Merner and O'Leary on November 13, 1997, because the defendant was not in custody at that time. We do not disturb the motion judge's findings of fact unless they are clearly erroneous, but his rulings of law are subject to independent appellate review. Commonwealth v. Welch, 420 Mass. 646, 651, 651 N.E.2d 392 (1995). Commonwealth v. James, 427 Mass. 312, 314, 693 N.E.2d 148 (1998). We agree with the motion judge that the defendant was not in custody at the time of his interrogation and that, therefore, Miranda warnings were not required.

Custodial interrogation requiring Miranda...