Com. v. Johnson
Decision Date | 18 March 1977 |
Citation | 372 Mass. 185,361 N.E.2d 212 |
Court | United 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 Com.
Before HENNESSEY, C.J., and QUIRICO, BRAUCHER and KAPLAN, JJ.
The defendant Lawyer Johnson, found guilty by a jury on June 1, 1972, of the murder in the first degree of James Christian, appealed to this court from the judgment of conviction and from an order denying a new trial. This court on July 1, 1974, reversed the judgment and set aside the verdict on the ground that the trial judge had committed error in refusing to take measures to order, induce, or compel a prosecution witness, Kenneth Myers, to identify two persons who might, if produced, furnish significant information about the crime. Following the reversal, the defendant was again put to trial on the same indictment charging murder in the first degree. On November 16, 1974, a Suffolk County jury, after nine days of trial before them, brought in a verdict of murder in the second degree. The judgment of conviction entered thereon is the subject of the present appeal under G.L. c. 278, §§ 33A--33G.
An outline of the case appears in the opinion on the previous appeal (Commonwealth v. Johnson, 365 Mass. 534, 535--539, 313 N.E.2d 571 (1974)) to which the reader is referred. For present purposes we may say that at the trial here under review the prosecution in effect asked the jury to believe, and they evidently did believe, the nub of Myers's testimony under direct examination corresponding (though with differences) to a statement introduced at the first trial which he gave the police on December 8, 1971, the day after the homicide (see 365 Mass. at 537, 313 N.E.2d 571). Myers, a black youth, said that about 4 P.M., December 7, he saw the victim, a white man, enter 71 Prentiss Street in Roxbury, one of the apartment houses in the Mission Hill project. Myers followed the victim into the hallway; the victim asked Myers whether he knew a 'Robinson'; Myers said he did not. As Myers left and reached the steps outside, he faced two black men--the defendant Johnson (whom he knew well) and Willie Bennett (as later indicated). One of them said, in effect, they were going to take or get that man and did he, Myers, want to help. It is not indicated that Myers replied. The victim, having emerged onto the porch or landing, found himself blocked in front by the defendant and at his back by Bennett, with Myers to the side or rear. The victim drew a gun but apparently hesitated. The defendant drew his gun and shot the victim twice at very close range, one bullet lodging in the victim's skull (and resulting in his death), the second passing through the front of his face, drilling a hole in the window of a ground floor apartment, and lodging in the wall of a room there. The defendant fled on Prentiss Street; Bennett ran to the rear through the building; Myers picked up the victim's gun where it had fallen, put it in a paper bag lying nearby, ran on Prentiss Street and entered the 61 Prentiss Street apartment house, went up the stairs to the roof, secreted the bag with the gun there, and went back to the scene where, by this time, a crowd was gathering.
To continue with the framework of the prosecution's case: On the night of December 15 the defendant was found at the Sugar Shack, a Boston night club, by George Vest, an officer in plain clothes. When asked, the defendant gave a false name and address, and was immediately arrested on the murder charge.
The defendant was confined with Alvin Franklin in the Charles Street jail from about December 16. The triers could believe from Franklin's testimony that the defendant told Franklin that in attempting to rob the victim he had shot and killed him, and that Bennett and Myers were there at the time.
We shall fill in more of the picture as we discuss the several claims of error, but first we should mention the disclosures by Myers at the second trial which he was permitted to withhold in his testimony at the first. Asked at the first trial on cross-examination to name the man who stood with the defendant on the porch of 71 Prentiss Street, Myers had refused an answer. Now, under further pressure, he named Willie Bennett. But Bennett did not appear at either trial (however, as already indicated, he had in fact been named by Franklin at the first trial). Myers had stated at the first trial that just before the criminal event his girl friend accompanied him from Paul's Foodland on Parker Street to the vicinity of 71 Prentiss Street and then proceeded on her own, but he refused on cross-examination to name her, except to say that she was not Marlene (Marylin) Mack (who lived with her mother at 71 Prentiss Street). Now he admitted the identity. When Miss Mack testified as a witness for the defense at the second trial, she said she was a friend (but not the 'girl friend') of Myers, but placed a meeting with Myers between 1 and 2 P.M. on December 7 at a store on Parker Street, whence, she said, they walked to the Mack apartment where Myers had a glass of water. She said she was not with him after that hour. 1
1. The trial judge denied the defendant's motion to set the verdict aside as against the weight of the evidence. The same relief is now requested of us under G.L. c. 278, § 33E.
There is argument, first, that the physical evidence of the course of the bullets, as it might be plotted on diagrams or maps of the place drawn by an architect, rendered unbelievable the details of Myers's story of the encounter on the landing outside 71 Prentiss Street. The jury could have found the physical demonstration quite unconvincing, as it assumed more or less fixed locations for the actors contrary to Myers's testimony which described an episode characterized by movement and fluidity.
The defendant attacks the veracity of the principal witnesses for the prosecution. Their trustworthiness was certainly questionable. Myers, with a criminal record, and himself not clear of suspicion of the homicide, was a difficult and reluctant witness. He gave a statement on December 7 intended to set the police on a false trail (see 365 Mass. at 535--536, 313 N.E.2d 571). His statement of December 8 and similar testimony, however, drew confirmation from the fact that he actually led the police to the gun, proved later to be the victim's, on the roof of 61 Prentiss Street. At trial some of Myers's direct testimony was not congruent with his prior testimony, but the deviations could be taken as inessential and as occasioned both by the fleeting character of the happenings described and by some loss of memory over time. On cross-examination Myers was nominally acquiescent in some of defense counsel's suggestions at variance with his direct testimony, but the jury could surmise that he was not loath to leave the semblance, at least, of an escape hatch for the defendant. A like comment could be made about Franklin's behavior on cross-examination in which he was not resistant to the suggestion that his memory might have been at fault so that he was perhaps imputing to the defendant an account he initially had received from Myers. We should add that Myers and Franklin were under pressure of their forthcoming trials on criminal charges at which they could hope that any past cooperation might earn them favor from the prosecutor. In each instance, then, there was a me lange of motives. But assessment of the reliability of such witnesses is peculiarly and traditionally within the range of exclusive competence of the jury.
Similarly it was for the jury to assess the credit to be given the testimony of Gary Pritchett, the most material of the witnesses offered by the defense. 2 He had not appeared at the first trial but gave an affidavit and testified in support of the motion for a new trial previously denied (see 365 Mass. at 549--550, 313 N.E.2d 571). Pritchett said he heard gunshots and then saw three black men running from 71 to 61 Prentiss Street. Knowing well both Myers and the defendant, he said he recognized Myers as one of the three but not the defendant. He said Myers stopped before reaching No. 61, but the other two entered. It might be accepted that Pritchett was near the scene when the shots were fired, and he might have been the source of information to the police about Myers. If it were accepted that he was trying to tell the truth, there would still be considerable doubt whether from his position he could have made the observations he testified to, including the negative observation about the defendant, with any substantial claim to accuracy. His testimony as a whole was clouded by suspicion that he was shaping his testimony to help save a friend, for it was not easy to accept his assertion that through the first trial, a half year after the homicide, he had not known that anyone had been charged with the crime. 3
Under our decisions there is no adequate basis for setting aside the jury's verdict. See Commonwealth v. Gricus, 317 Mass. 403, 407, 58 N.E.2d 241 (1944). See also Commonwealth v. Britt, 358 Mass. 767, 770, 267 N.E.2d 223 (1971); Commonwealth v. French, 357 Mass. 356, 397--398, 259 N.E.2d 195 (1970), judgments vacated as to the death penalty sub nom. Limone v. Massachusetts, 408 U.S. 936, 92 S.Ct. 2848, 33 L.Ed.2d 754 (1972).
2. Error is claimed in the trial judge's denial of the defendant's motions for a directed verdict in so far as the indictment charged murder. We think the murder charges could stand. Killing with extreme cruelty or atrocity being excluded from the jury's consideration, the evidence in its variant aspects or possible interpretations properly invoked the two other species of murder in the first degree, and murder in the second degree as well. The evidence was open to the construction of felony murder (murder in the commission...
To continue reading
Request your trial-
Com. v. Soares
...Peremptory Challenge, Supra.12 See our comment in note 9 Supra. In addition to the cases cited in note 9 Supra, see Commonwealth v. Johnson, --- Mass. ---, ---, ---, 361 N.E.2d 212 (1977) (Mass.Adv.Sh. (1977) 516, 531); Commonwealth v. Cook, 364 Mass. 767, 770, 308 N.E.2d 508 (1974). In lig......
-
Com. v. Stokes
...supra, or of our rulings in Commonwealth v. Rodriguez, supra (Commonwealth has burden of disproving self-defense), Commonwealth v. Johnson, --- Mass. ---, --- - --- g, 361 N.E.2d 212 (1977), or Commonwealth v. Greene, --- Mass. ---, --- - --- h, 362 N.E.2d 910 (1977) (Commonwealth has burde......
-
Com. v. Colon
...instructed jury." Hoffa v. United States, 385 U.S. 293, 311, 87 S.Ct. 408, 418, 17 L.Ed.2d 374 (1966). Accord Commonwealth v. Johnson, 372 Mass. 185, 190, 361 N.E.2d 212 (1977). These "established safeguards" operated properly in this case. The defendant vigorously cross-examined Mangual in......
-
DeJoinville v. Com.
...(D. Mass. 1979), aff'd 621 F.2d 20 (1st Cir. 1980); Commonwealth v. Greene, 372 Mass. 517, 362 N.E.2d 910 (1977); Commonwealth v. Johnson, 372 Mass. 185, 361 N.E.2d 212 (1977).d. Mass. Adv. Sh. (1980) at 1185 n.1.e. Mass. Adv. Sh. (1979) 692, 695.10 See note 1 supra.11 In McInerney v. Berma......