Com. v. Johnson

Decision Date01 July 1974
Citation313 N.E.2d 571,365 Mass. 534
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

John G. S. Flym, Boston, for defendant.

Thomas J. Mundy, Jr., Asst. Dist. Atty., for the Commonwealth.


KAPLAN, Justice.

The defendant, Lawyer Johnson, appeals under G.L. c. 278, §§ 33A--33G, from his conviction of first degree murder, with sentence of death, as well as from the denial of his motion for a new trial. The assignments of error are numerous, but it will not be necessary to examine them or the facts of the case comprehensively, since there was a material error requiring reversal, and the other questions are not likely to arise on retrial. 1 The error consisted of the trial judge's refusal to take any steps to order, induce, or compel a crucial prosecution witness--one Kenneth Myers--to give testimony on potentially significant matters within his own claimed knowledge.

We shall describe as much of the case as is necessary to understanding, analyze the error, and comment on the Commonwealth's slackness in furnishing material to the defence under pre-trial orders.

1. About 4:45 P.M., December 7, 1971, Boston police officer Anthony DiFonzo was on paid detail at the Parker Street Lounge near the corner of Parker and Prentiss streets in Roxbury. Someone came in and said, 'A man has been shot.' Officer DiFonzo ran out of the Lounge and followed a crowd to 71 Prentiss Street. There he found a white man sprawled on his back on the steps and landing leading to the entrance door of the apartment house. The man was bleeding from the face, unconscious but still breathing. He had been shot. It appeared later that one bullet had lodged in fragmented form in his skull, another had passed through the front part of his face. DiFonzo summoned a police ambulance which arrived within a few minutes. The victim was taken to Boston City Hospital where he died later that day.

DiFonzo had spoken with people at the scene, and at the Parker Street Lounge on his return there, and had taken down some names, evidently of possible witnesses. He turned the list over to Officer Francis McDonough who had arrived when the victim was being placed in the ambulance. McDonough recognized the name of Kenney Myers on the list. Seeing Myers in the crowd, McDonough approached him and placed him in a police cruiser in which he was taken to the District 2 police station in Roxbury.

While in the police car and later than evening at the station, Myers (then seventeen years old) gave the police officers an account in which he claimed to have seen two black men, unknown to him, shoot down the victim. He said he might be able to identify one or both of these men. Accordingly he was taken to headquarters where he examined a number of pictures and identified one. He was returned to District 2 before nine o'clock that night. By that time he had reason to apprehend that someone had observed the shooting at close range. 2 He signed a statement in part as follows. He had been walking in the vicinity of 71 Prentiss Street when he saw the victim drive up alone in a Mustang, get out, and walk up the steps of the building, taking a gun out of his pocket. As the victim opened the door, two black men came out and began to argue with him about bad drugs. Before the victim had a chance to fire, the black men fired. Myers was not sure both fired, but he heard two shots. Myers was in the line of fire, so he squatted down by the side of the chain link fence next to the entrance of 71 Prentiss Street. He saw the black men move the victim and grab something, and believed they took the victim's gun and brown lunch bag, 'because when Gary Pritcher and me got to the white man they were not there.' The two assailants ran past Myers along the fence not more than five feet from him. He did not know the black men or the victim, but thought he could identify the man whose picture he had selected if he saw him in a lineup. 'My girl was there when the argument started but she told me not to be nosey and she left me there. No one else was there.'

When a check was made of the person whose picture was identified by Myers (one Vaughn Simkins), it turned out he was then in prison.

At this point Myers was taken to the District 4 station where a warrant was outstanding for him on an unrelated ofence. Shortly before midnight Myers asked to see the investigating officers of District 2. When they arrived he led them to the roof of 61 Prentiss Street where he showed them a gun in a paper bag hidden on top of the stairway roofing.

At 12:30 P.M. the next day, December 8, Myers, under interrogation by Detectives Friel and Finnel, made a second statement different from the first and implicating the defendant Johnson. It was in part as follows. Around 4 P.M. he had left Paul's Foodland on Parker Street near Prentiss Street and gone to the front hallway of 71 Prentiss Street to visit Mrs. Mack, mother of a friend, Marlene Mack. On the way in he had seen a white man get out of a Mustang car and walk toward 71 Prentiss Street. In the hallway this man asked Myers whether he knew a 'Robinson'; Myers said he did not, he didn't think a Robinson lived in that building. The man 'started back out the door,' by which time Myers was on the steps outside. The defendant Johnson (whom Myers knew well) was on the porch with another black man whom Myers did not know. 'They said they were going to rob that man and did I want to help them. . . . I didn't say nothing.' (Q. 'You figured if they made a hit you would get something and if they didn't you would not be involved.' A. 'Right.') As the white man came out, his way was blocked by the defendant and his companion. The white man drew a gun but hesitated; the defendant, drawing a gun out of his left coat pocket, fired twice at very close range into the white man's face. Myers was two feet away on the landing. The defendant's gun was a nickel plated automatic; the white man's looked the same. As the white man fell, the black men fled. Myers took the gun out of the victim's hand; as he went around the corner he picked up a paper bag from the ground, put the gun in the bag, ran up to the roof of 61 Prentiss Street, and secreted the bag and gun there. He ran back to the scene. By then 'the social worker, Pritchard, was out there and he said, 'Kenny, what happened?', and I said 'I am not saying nothing. " Concluding his statement, Myers repeated that he had never seen the defendant's companion before; he would not be able to identify him.

At this point we need to interpolate that the victim was identified as James Christian. The woman with whom Christian was living in Chelsea testified that he was addicted to drugs, and had left the place in Chelsea around 3:30 P.M. of December 7 with the evident intention of exchanging a gun for heroin. The gun Christian apparently took with him, as described by the woman, resembled the one uncovered by Myers on the roof of 61 Prentiss Street. It was a black, clip-fed, .22 caliber semi-automatic pistol with the clip missing.

In his live testimony, Myers strove to hold to the substance of his December 8 statement (and his version the jury evidently believed), while admitting that he had lied in his December 7 statement and that he changed his story and named Lawyer Johnson when it appeared that he might himself be accused. He added some circumstantial details to the December 8 recital, but not without a few variations from it, 3 such as that Johnson had said, 'You wanna get him (the white man)?' (without mention of robbery), and later, after the shooting, 'He was going to kill me' or 'going to shoot me' (which may possibly be interpreted as referring, not to the immediate encounter, but to a quarrel of longer standing). 4

A girl friend of Myers appeared in the December 7 statement but went unmentioned in the December 8 statement. From the witness stand Myers said that his girl friend accompanied him from Paul's Foodland to 71 Prentiss Street and then went on. Myers said she was not Marlene Mack, but he refused on cross-examination to give her name. Myers's second refusal to answer came when he was asked in cross-examination the name of the second assailant. He had denied knowing either black man in the December 7 statement, denied knowing the second man in his December 8 statement and, evidently, stuck to that denial in his grand jury and probable cause testimony. At trial, he first made the same as to the second man, then admitted he did know him, but finally refused to name him.

Before discussing these refusals to answer, we refer to the other witnesses who testified damagingly about the defendant Johnson. An informer, Alvin Franklin, said the defendant, confined with Franklin in the Charles Street jail, had complained to him that someone 'dropped a dime on him' (i.e., informed the police); had admitted that in a robbery attempt he had shot and killed the victim when the victim pulled a gun; and had named Myers and one Willie Bennett as having been with him at the time. Franklin said the defendant made these statements to him on or near the day the defendant arrived in jail, but it is not indicated that there was any friendship or intimacy between the defendant and Franklin before they met in jail. Franklin did know Myers. Myers in fact was also in the Charles Street jail in a cell next to Franklin's, had told Franklin about the same event, and said he wasn't going to 'take the weight.'

Patrolman George Vest, working from a photograph, arrested the defendant at the Sugar Shack on December 15. The defendant gave a false name and address at the time.

The defendant testified in his own behalf. He said he was at the Sugar Shack with his sister and another young woman. He admitted his falsehoods to Patrolman Vest, but laid them to his having been beaten up the last time...

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