Com. v. Gordon

• Citation: 422 Mass. 816,666 N.E.2d 122
• Parties: COMMONWEALTH v. Ventry GORDON (and six companion cases 1 ).
• Decision Date: 10 June 1996
• Court: United States State Supreme Judicial Court of Massachusetts

Page 122

666 N.E.2d 122

422 Mass. 816

COMMONWEALTH v. Ventry GORDON (and six companion cases ¹).

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Sept. 12, 1995.

Decided June 10, 1996.

Willie J. Davis, Boston, for Ventry Gordon.

John H. Cunha, Jr., Boston, for Sean Lee.

Robert L. Sheketoff, Boston, for Ronald Settles.

Sabita Singh, Assistant District Attorney (Richard W. Jensen, Special Assistant District Attorney, with him), for Commonwealth.

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

O'CONNOR, Justice.

A jury found the defendants Ventry Gordon and Sean Lee guilty of murder in the first degree of Jesse McKie and Rigoberto Carrion and guilty of armed robbery of McKie. They found the murders committed by Gordon to have been premeditated and those committed by Lee to have been felony-murders. Ricardo Parks, who was also charged with murdering McKie and Carrion and with armed robbery of McKie, was acquitted of those charges. The jury found the defendant Ronald Settles guilty of being an accessory after the fact of assault and battery by means of a dangerous weapon on McKie. Settles was acquitted on a second indictment charging being an accessory after the fact of assault and battery by means of a dangerous weapon and on an indictment charging being an accessory after the fact of armed assault with intent to rob. Gordon, Lee, and Settles appeal from their convictions.

The following issues are raised on appeal: (1) Did the trial judge's excuse of a potential juror, who was black, deprive the defendants, who are also black, of their rights to a jury drawn from a fair cross section of the community and to a fair trial? (2) Prior to empanelling the jury, the judge examined the venire pursuant to G.L. c. 234, § 28 (1994 ed.). She asked the venire, as a group, questions concerning their understanding of the Commonwealth's burden of proof. On the fourth day of jury selection, however, after fifteen jurors had been seated, a member of the venire told the judge during individual voir dire that he and others had experienced difficulty hearing what she had said to the venire as a group. Gordon then moved for a mistrial on the ground that some or all of the fifteen seated jurors might not have heard the judge's questions to the jury as a group. We shall discuss whether the judge's denial of that motion was erroneous. 3) On the first morning of jury selection, after one hundred venire members had entered the courtroom, the judge over objection excluded the public, including members of the defendants' families, from the courtroom due to lack of available seating. The judge then considered requests of jurors to be excused from service because of hardship. The issue is whether the judge interfered with the defendants' rights to a public trial when she excluded members of their families from the courtroom during the hardship colloquies. (4) Originally, Lazell Cook was a codefendant with Ricardo Parks Gordon, Lee, and Settles. See Commonwealth v. Cook, 419 Mass. 192, 195, 644 N.E.2d 203 (1994). Before trial Gordon moved unsuccessfully for severance. Cook's attorney told the jury in his opening statement that there would be evidence that Gordon stabbed McKie and Carrion and later admitted that he had done so. Then, relying substantially on Commonwealth v. Moran, 387 Mass. 644, 442 N.E.2d 399 (1982), Gordon renewed his motion for severance. The judge denied that motion. We must decide whether that ruling was correct. (5) The fifth issue is whether the judge erred by denying Gordon's motion for a mistrial following her mid-trial allowance of Cook's motion for severance. (6) Did the prosecutor engage in such prosecutorial misconduct by improperly appealing to the jury's sympathy in his opening statement, presentation of evidence, and closing argument, that the defendants were denied a fair trial? (7) Did the judge reversibly err by allowing the Commonwealth to introduce in evidence a videotape recording of the defendants' booking at the police station? (8) Did the testimony of the Commonwealth's witness, Kevin Rollins, who was a party to a nonprosecution agreement, deprive the defendants of their rights to a fair trial? (9) Did the judge err in allowing the Commonwealth to introduce expert testimony regarding blood splatter analysis? (10) Did the judge err in allowing the Commonwealth's expert witness to testify to her opinion that ortho-tolidine tests conclusively indicated the presence of blood on the defendants? (11) Was the defendant Settles denied a fair trial when a witness identified him for the first time in the jury's presence? (12) Did the judge commit reversible error when she refused to allow the defendants to attend the jury view? (13) Did the evidence warrant a finding that the defendant Lee was guilty of the felony-murder of Rigoberto Carrion? (14) Did the judge err when she refused to instruct the jury concerning the possibility of Lee's having been the receiver of stolen property? (15) Did the judge commit reversible error as to the defendant Settles when she instructed the jury on consciousness of guilt without limiting the instruction to the other defendants? (16) Should this court reverse or reduce the murder convictions of the defendants Gordon and Lee or either conviction pursuant to G.L. c. 278, § 33E (1994 ed.)?

We recite facts that the jury would have been warranted in finding. Later, in conjunction with specific issues, we shall discuss other facts that the jury properly could have found. On January 24, 1990, Settles drove his friend, Kevin Rollins, to a liquor store. While Settles waited in the van, Rollins went into the store to make a purchase. When he emerged, Rollins found that his friends, Gordon, Cook, and Parks, had also arrived at the store. The three men introduced Rollins to a fourth man, Lee. Rollins invited Settles and the others to his apartment to drink. While at the apartment, Cook and Gordon displayed knives. They "flicked" them in front of the others.

The group left Rollins' apartment approximately one hour after arriving there. Settles drove the others to several locations. Lee suggested that they go "to the projects" so they could "rob some drug dealers." Gordon, Cook, and Parks agreed. Rollins and Settles did not agree. When they arrived at the Newtowne Court housing project (Newtowne Court) by way of Lee's direction, the group disembarked from the van and entered the courtyard. The entire group entered the courtyard except Settles, who walked along the street outside the courtyard's entranceway.

Later, Tracy Williams, Jesse McKie, and Rigoberto Carrion walked along the street in front of the Newtowne Court entranceway. Gordon, Cook, Parks, and Lee confronted them and pulled McKie into the entranceway. The group surrounded McKie and demanded the leather jacket that he was wearing. At first, McKie resisted and tried to keep his coat on while the group tried to pull it off him. Suddenly, Gordon ordered, "Get him." Gordon, Cook, Parks, and Lee beat McKie and attempted to wrestle off his coat. McKie soon succumbed and pleaded with the group to take his jacket and leave him alone. They did not relent. As they continued to beat McKie, Gordon pulled out a knife and stabbed him with a double thrust to his chest, puncturing McKie's heart. McKie cried for help. Williams left to get the police. Lee put on McKie's bloodied jacket. The group then threw McKie onto a snow bank and kicked and punched him repeatedly as he lay there. McKie died within a few minutes.

Carrion had seen the entire incident from the street outside Newtowne Court's entranceway. When Carrion turned to walk away, Gordon, Parks, Lee, and Cook pursued him. When they caught up with Carrion, they pushed him into a chain link fence and beat him. As they did so, Gordon stabbed Carrion. As Carrion struggled to get free, several members of the group kicked him. Carrion collapsed a few blocks away and died less than a week later.

Soon after the stabbings, the police pursued the suspects. They apprehended Parks and Lee and brought them to the police station. Later, Cook went to the station to bail Parks out. Cook told the police that he had come to the station with his two "buddies" who were waiting outside in a brown van. In the meanwhile, Williams, who had left the crime scene to obtain police help, identified Cook as one of the assailants. The police pursued the van, and apprehended Settles and Gordon a few blocks from the station after the van went the wrong way on a one-way street.

We shall discuss the issues in the order set forth above.

(1) Excuse of a potential juror. There were approximately 200 persons in the venire, only two of whom were black. The judge asked the venire present in the courtroom whether there was any reason why they could not sit on a six-week trial. One of the two black venire persons came forward and told the judge that she was divorced, was responsible for driving her son from Framingham to school in Weston every morning, was nervous about driving to court and therefore would need public transportation to court, "would be very stressed out" if she were on the jury, had high blood pressure and took "a lot of medicines for it to try to keep not too stressed out." General Laws c. 234A, § 40 (1994 ed.), provides: "In the event a trial is expected by the court to last more than three trial days, the trial judge shall announce this fact to jurors before the jury is impanelled. The trial judge may excuse a juror from performing his juror service on such an extended trial upon a finding of hardship, inconvenience, or public necessity taking into consideration the expected length of the extended trial, but any juror so excused shall otherwise complete his term of juror service." See also G.L. c. 234, § 1A (1994 ed.) ("If at any time it appears that the public interest will be served by excusing any person from jury service, or if the performance thereof will impose...