Com. v. Jones

• Decision Date: 16 April 2008
• Docket Number: No. 07-P-406.,07-P-406.
• Citation: 71 Mass. App. Ct. 568,884 N.E.2d 532
• Parties: COMMONWEALTH v. Jerone JONES.
• Court: Appeals Court of Massachusetts

884 N.E.2d 532

71 Mass. App. Ct. 568

COMMONWEALTH v. Jerone JONES.

No. 07-P-406.

Appeals Court of Massachusetts, Middlesex.

Argued February 11, 2008.

Decided April 16, 2008.

Ruth Greenberg, Swampscott, for the defendant.

Fawn Balliro, Assistant District Attorney, for the Commonwealth.

Present: GELINAS, COWIN, & FECTEAU, JJ.

FECTEAU, J.

The defendant appeals from jury convictions of involuntary manslaughter, found as a lesser included offense of the original charge of murder in the first degree, and of illegal possession of a firearm. He claims that the motion judge violated his right to a public trial by excluding his girlfriend, Gwynne Doyle, from the hearing on his motion to suppress "all statements made by him to the police." The defendant also argues that he must be resentenced because the trial judge improperly commented at the sentencing hearing about the defendant's failure to show remorse for actions precipitating the victim's death. Finally, he claims that the sentence imposed on the firearm offense is illegal and must be vacated. We affirm as to the conviction and sentence for involuntary manslaughter, but remand for resentencing on the firearm offense.

On March 9, 2004, the defendant was indicted for the murder of Lynn Bader and for illegal possession of a firearm. On January 27, 2004, the defendant and Doyle were riding together in a Lincoln automobile on Route 93 southbound from New Hampshire to Boston, Doyle the driver and the defendant a front seat passenger. The defendant was carrying a handgun, as he claims was his practice when traveling to Boston, for personal protection due to his activities as a drug dealer and his fear that a former boyfriend of Doyle was stalking them. According to the evidence at trial, there had been some form of interaction or confrontation with another car driven by the victim during the trip. The defendant claimed that he became worried when the victim's car drove closely behind, and then alongside theirs, and that he had drawn his gun with his finger on the trigger.

At trial, the Commonwealth argued that the defendant deliberately reached across Doyle, with the gun in his hand, and intentionally fired a shot at the victim, fatally hitting her in the head. The defendant argued that the vehicles careened together at high speed, creating an impact that caused the gun accidentally to discharge, killing the victim. After the shot, both cars lost control and careened into the left guard rail. The defendant's car stopped first, and the victim's vehicle stopped about one-quarter mile down the road.

As the defendant stepped out of the passenger side door of the Lincoln, a passer-by who had stopped to assist heard the sound of an object hitting the ground. The passer-by looked and saw a gun. As the defendant picked it up, the passer-by walked away to call police and report the firearm. Upon police arrival, the defendant initially denied that he had a gun, but later suggested that they look for it in the console of the Lincoln. The gun was later recovered from Doyle's waistband as she was being attended to by emergency medical technicians and prepared for the ambulance.

While seated in a cruiser, the defendant first said that the gun fired accidently upon loading and cocking it, adding that he was afraid that he had shot his girlfriend. Later, at the State police barracks, he was told that his girlfriend had not been hit, but that the driver of the other car had been killed. The defendant then said that, while it might be "a homicide," it was not "a murder." When asked what he did with the gun, he said he "probably" passed it to Doyle. Doyle was also criminally charged, both as an accessory after the fact of the victim's murder and for unlawfully carrying a firearm.

Both the defendant and Doyle moved to suppress certain of their statements. Although these motions were originally intended to be heard together on September 10, 2004, only the defendant's motion went forward to an evidentiary hearing. Doyle's motion was continued to a date in November, and postponed until January 3, 2005. Arguments were heard on the defendant's motion on this latter date; there was also an evidentiary hearing on Doyle's motion. Both were taken under advisement. The defendant's motion to suppress was denied on April 21, 2005. On September 12, 2005, the defendant's motion to join his case with Doyle's was denied. Following the defendant's convictions, he was sentenced to a term of imprisonment of from fifteen to eighteen years on the involuntary manslaughter offense and a concurrent term of from five years to five years and one day on the firearm offense.

1. Sequestration of Doyle. At the start of the hearing on the defendant's motion to suppress, the motion judge allowed the prosecutor's requested sequestration to exclude Doyle from the court room. The court room remained otherwise open to the public. The defendant contends that his right to a public trial as guaranteed by the Sixth Amendment to the United States Constitution was violated.¹ We disagree.

One purpose of a public trial is to allow a defendant the presence of a friend "who might give him legitimate assistance or comfort without interfering" with the proceedings. Commonwealth v. Marshall, 356 Mass. 432, 434, 253 N.E.2d 333 (1969). "This right to a public trial is not, however, absolute and inflexible." Commonwealth v. Stetson, 384 Mass. 545, 550, 427 N.E.2d 926 (1981), quoting from Commonwealth v. Bohmer, 374 Mass. 368, 380, 372 N.E.2d 1381 (1978). A trial judge may exclude spectators in certain situations in order to "ensure that the administration of the criminal law is fair and just." Commonwealth v. Stetson, supra, citing Commonwealth v. Bohmer, supra (judge may exclude spectators who intimidate witnesses or disrupt proceedings). In Commonwealth v. McCann, 22 Mass.App.Ct. 953, 954-955, 494 N.E.2d 417 (1986), for example, a judge permissibly excluded a discharged codefendant from the court room even after all evidence was taken in order to avoid the prospect of jury speculation. "Th[is] limited exclusion was within the trial judge's discretion to assure a fair trial, similar to that relating to the sequestration of witnesses." Id. at 955, 494 N.E.2d 417.

We do not view Doyle's exclusion as a closure of the court room, but rather as the proper exercise of a judge's discretion to order the sequestration of witnesses under Mass.R.Crim.P. 21, 378 Mass. 892 (1979). See Commonwealth v. Sevieri, 21 Mass.App.Ct. 745, 757, 490 N.E.2d 481 (1986) ("we see a distinction between the general public and witnesses when encouraging attendance throughout trials"). Doyle, whose own hearing and trial had yet to occur, continued to be a potential witness even though the parties "anticipated" that they were not likely to call her to testify and even though she possessed a privilege against testifying pursuant to the Fifth Amendment to the United States Constitution. At the time that the order was entered, neither side had made a commitment as to who might testify, nor had either side presented any evidence on the motion to suppress. Doyle still might have been called to testify because she was not only a percipient witness to the events giving rise to the charges, but also a witness to the defendant's physical condition during and following the events in question. "The process of sequestration consists merely in preventing one prospective witness from being taught by hearing another's testimony . . ." (emphasis supplied). Commonwealth v. Bianco, 388 Mass. 358, 369, 446 N.E.2d 1041 (1983), quoting from Reporters' Notes to Mass. R.Crim.P. 21, Mass. Ann. Laws, Rules of Criminal Procedure, at 410 (1979).

Like the defendant in Commonwealth v. McCann, the defendant in this case does not contend that any person other than Doyle was excluded from the court room. The judge did not generally exclude all of the defendant's relatives and friends, but only the one individual who was charged as an accessory to his crime. See Commonwealth v. McCann, supra at 955, 494 N.E.2d 417, citing Commonwealth v. Marshall, 356 Mass. at 435, 253 N.E.2d 333. Sequestration orders rest in the sound discretion of the trial judge. Commonwealth v. Navarro, 2 Mass.App.Ct. 214, 223, 310 N.E.2d 372 (1974). We cannot say that the judge abused her discretion in ordering this limited exclusion.

2. The trial judge's remarks as to remorse at sentencing. The defendant argues that the judge's remarks as to the defendant's expression of remorse at the sentencing hearing demonstrate her reliance on improper factors in rendering the sentence.² On the record before us, we disagree.

Provided that the decision is based on appropriate considerations, "[a] trial judge is permitted `great latitude' in sentencing." Commonwealth v. Derouin, 31 Mass.App.Ct. 968, 970, 583 N.E.2d 1293 (1992), quoting from Commonwealth v. Celeste, 358 Mass. 307, 310, 264 N.E.2d 683 (1970). In general, when imposing a sentence, the judge should consider "several goals: punishment, deterrence, protection of the public, and rehabilitation." Commonwealth v. Goodwin, 414 Mass. 88, 92, 605 N.E.2d 827 (1993). She may also "consider a variety of factors . . . many of which are inadmissible at trial." Commonwealth v. Derouin, supra, quoting from Commonwealth v. Coleman, 390 Mass. 797, 805, 461 N.E.2d 157 (1984). These include the defendant's behavior, character, background, and, perhaps most important, "the nature of the offense and the circumstances surrounding the commission of the crime." Commonwealth v. Derouin supra, quoting from Commonwealth v. Coleman, supra. A sentencing judge may not, however, enhance a defendant's punishment for exercising a constitutional right, such as pleading not guilty or refusing to confess. Commonwealth v. Ravenell, 415 Mass. 191, 193, 612 N.E.2d 1142 (1993). Commonwealth v. Mills, 436 Mass. 387, 400 & n. 9, 764 N.E.2d 854 (2002).

Multiple jurisdictions have acknowledged the...