Com. v. Otsuki

• Citation: 411 Mass. 218,581 N.E.2d 999
• Parties: COMMONWEALTH v. Ted Jeffery OTSUKI.
• Decision Date: 18 November 1991
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 999

581 N.E.2d 999

411 Mass. 218

COMMONWEALTH v. Ted Jeffery OTSUKI.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Oct. 8, 1991.

Decided Nov. 18, 1991.

Robert A. George, Boston, for defendant.

Thomas Mundy, Asst. Dist. Atty. (Marina Medvedev, Asst. Dist. Atty., with him), for the Com.

Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and GREANEY, JJ.

NOLAN, Justice.

On May 16, 1989, a Suffolk County jury convicted the defendant of the murder in the first degree of Boston police Officer Roy Joseph Sergei, assault with intent to murder Boston police Officer Jorge Torres, assault and battery upon Officer Torres by means of a dangerous weapon, assault by means of a dangerous weapon upon Boston police Officer Christopher Rogers, assault by means of a dangerous weapon upon Boston police Officer William Kennedy and unlawfully possessing a firearm. ¹ The defendant appeals from the convictions, claiming that the trial judge committed reversible error when he (1) denied the defendant's motion to conduct an individual voir dire of the venire as to prejudice or bias against Asians; (2) denied the defendant's motions for a required finding of not guilty of murder in the first degree; (3) denied the defendant's motion to dismiss based upon the unavailability of bullet fragments; (4) allowed certain in-court identifications of the defendant; and (5) allowed the Commonwealth to introduce evidence of the defendant's prior misconduct. The defendant further requests that we exercise our power under G.L. c. 278, § 33E (1990 ed.), and order a new trial or reduce the murder conviction in the interest of justice. We conclude that the interest of justice has been served well in this case and affirm the convictions.

We summarize the tragic facts of this case as follows. On September 28, 1987, the defendant, identifying himself as Mark Taira, ² rented an apartment on the second floor of a building located at 371 Commonwealth Avenue in the Back Bay section of Boston. The apartment windows faced Commonwealth Avenue. The defendant paid the required rent and deposits in cash, stating that he did not believe in credit cards. He listed a John Ling of Austin, Texas, as a reference on the rental application and informed the manager that he was renting temporarily while he looked for a position in the computer industry. The defendant further informed the receptionist at the rental office that he had been to Boston before and already knew about the area services and transportation system. Later that day, the defendant rented a postal box under the name David Taira. He displayed a California driver's license to identify himself and listed John Ling as a reference on the postal box application form.

The manager observed the defendant moving a considerable amount of luggage into the building, including one bag which seemed, from the sound it created when moved, to contain metal objects. Over the next one and one-half days, the receptionist in the rental office saw the defendant using the public telephone in the building with the assistance of a black box which made "musical noises," ³ and the manager saw him speaking with a parking meter attendant while standing on the sidewalk in front of the apartment building.

On October 2, 1987 at approximately 1 A.M., a female occupant of a third-floor apartment in the building began to scream, seeking protection from a male relative who then was beating her. The tenant managed to push the man out of her apartment into the common area. Once safely alone in her apartment, the tenant screamed out her window for help. ⁴ A man in the public alley at that time heard the tenant's pleas, asked for her address, and reported her complaint to the police.

Officers Kennedy and Sergei, then on duty in a rapid response car, received the report and proceeded to the apartment building. Officers Torres and Rogers heard the broadcast while patrolling the area and decided to respond as back-up support for Officers Kennedy and Sergei. The four officers met at the entrance to the apartment building and rang the tenant's doorbell. The tenant spoke to the officers through her intercom and explained that the buzzer in her apartment which operated the front door was broken and she was afraid to leave her apartment to let them in because her relative was outside her door.

At this point, Officers Torres and Rogers went to the rear of the building in search of a back entrance. Officers Kennedy and Sergei remained in the building foyer, ringing other doorbells and announcing their presence over the intercom. Meanwhile, another female tenant heard a loud crashing noise, which she described as sounding like "something heavy hitting metal." ⁵ The complaining tenant meanwhile observed through her window a man jumping from the building to the fenced-in courtyard located in the public alley. She saw him land, brace himself, run toward a fence in the courtyard, hurdle the fence, and press himself up against the building.

Once in the alley, Officers Torres and Rogers observed the defendant in the courtyard, against the wall of the building. Officer Torres shone his high intensity flashlight on the defendant and asked him what he was doing. The defendant responded, "I'm just hanging around." Officer Torres ordered the defendant to climb over the fence, out of the courtyard and into the alley. Officer Torres then reported to Officers Kennedy and Sergei by means of a walkie-talkie that they had apprehended a suspect in the alley. The defendant climbed over the fence as directed and, when he landed on the ground, attempted to walk away from the police officers. Officer Torres grabbed the defendant and told him to face the fence and put his hands up. Standing approximately one foot from him, Officer Torres started to "pat down" the defendant. Within seconds, the defendant shoved Officer Torres, took a semiautomatic pistol from underneath his jacket and began to fire. Officer Torres yelled to Officer Rogers, "[H]e has a gun." In reaction, Officer Rogers pushed the defendant and sought cover behind an air conditioning unit in the alley. From this vantage point, Officer Rogers witnessed the defendant chase and shoot at Officer Torres, who then was attempting to flee the alley. Officer Rogers drew his revolver at this time, but he could not fire at the defendant because of the dangerous proximity of Officer Torres. Officer Torres emerged from the alley screaming, "I've been shot."

Then, Officers Kennedy and Sergei approached the alley entrance. Officer Kennedy placed himself against the wall of the apartment building and drew his revolver. Officer Sergei continued walking toward the mouth of the alley, and he there encountered the defendant. Officers Torres and Kennedy observed the defendant at this point look to his right, hesitate for a few seconds, turn toward Officer Sergei, and fire several times at Officer Sergei, hitting him in the chest, right flank, and right buttock. Officer Sergei fell to the ground and the defendant fled the scene, running down Massachusetts Avenue. Officer Torres pulled out his revolver and fired three or four shots at the defendant. He then went to assist Officer Sergei on the sidewalk and there collapsed as a result of the bullet wounds he had sustained to his left arm, left buttock, rectum, and chest. Officer Kennedy fired a single shot and chased the defendant for a distance. The defendant escaped.

Officers Torres and Sergei each required extensive surgery and medical care. Officer Torres remained hospitalized for over two weeks and eventually he recovered from his injuries. Officer Sergei's condition was complicated by the spinal injury he sustained. There was competent medical testimony that Officer Sergei's spinal cord damage resulted in lower extremity weakness which, in turn, caused him to develop blood clots in his legs and ultimately suffer a fatal pulmonary embolus.

The subsequent investigation of the crimes revealed the following significant facts about the defendant. From September, 1987, to the date of the crime, the defendant was wanted for a Federal parole violation in the Southern District of Texas. The defendant faced up to ten years in prison as a result of this violation. In August, 1987, the defendant purchased a Sig Sauer nine-millimeter pistol, a box of Winchester nine-millimeter "Silver Tip" bullets, a Taurus .38 caliber special, a pair of "Packmeyer grips," a pack of glazier .38 caliber special ammunition, and a box of Fiuchi nine-millimeter ammunition under the name David Michael Taira at the Alamo Gun Shop in the Bellaire section of Houston, Texas.

In the aftermath of the shootings, investigators found several cartridges from a semiautomatic pistol in and around the alley. The investigators also discovered a fragment of a bullet and its jacket just outside the alley entrance. A ballistics expert tested these materials and concluded that they were fired from the defendant's Sig Sauer semiautomatic nine-millimeter pistol. Furthermore, this material was the same type of ammunition later found, pursuant to a search warrant, in the defendant's Commonwealth Avenue apartment. Tests conducted by the ballistics expert would warrant the conclusion that the two bullets that were removed from the body of Officer Sergei were fired from the defendant's Sig Sauer pistol. The Commonwealth presented evidence that the defendant's latent fingerprint appeared on a bullet contained in one of the cartridges located at the scene of the crime.

Each of the witnesses who observed the defendant at the time of the shooting described his attire at that time: blue jeans, sneakers, a striped shirt, and a dark jacket with white cuffs. Blood-stained clothing fitting this description was found later in the defendant's car. The striped shirt also had a hole on its right side, consistent with the passage of a bullet. Lead residue, as would appear as a result of the impact of one of the...