Com. v. Phillips

• Decision Date: 24 November 2008
• Docket Number: SJC-09231
• Citation: 452 Mass. 617,897 N.E.2d 31
• Parties: COMMONWEALTH v. Parrish PHILLIPS (and five companion cases<SMALL><SUP>1</SUP></SMALL>).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

897 N.E.2d 31

452 Mass. 617

COMMONWEALTH v. Parrish PHILLIPS (and five companion cases¹).

SJC-09231

Supreme Judicial Court of Massachusetts, Suffolk.

Argued October 10, 2008.

Decided November 24, 2008.

Richard J. Shea, Boston, for Parrish Phillips.

R. Bradford Bailey, Boston (Charles Dolan with him) for Phillip Rise.

Kristin Lombard O'Donnell, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, COWIN, CORDY, & BOTSFORD, JJ.

GREANEY, J.

On the evening of January 11, 2000, the victim, Silverio Johnson, after being repeatedly stabbed, and severely beaten, was hung upside down from the window of his second-floor apartment and dropped to the ground. The victim survived the fall, but later died. A jury convicted the defendants, Parrish Phillips (Phillips) and Phillip Rise (Rise), of the victim's murder. The jury found the defendants guilty on all three theories of murder, deliberate premeditation, extreme atrocity or cruelty, and felony-murder (predicated on armed robbery).² The defendants were also convicted of armed robbery with a handgun and armed robbery with a knife or sharp instrument. The jury acquitted the defendants of home invasion.³ The defendants' motions for a new trial were denied by the trial judge.⁴ The defendants appeal from the judgments of conviction and from the order denying their motions for a new trial.

Represented by new counsel on appeal, Phillips argues error in the denial of his motion to dismiss the homicide indictment, the denial of his motion to suppress, the prosecutor's closing argument, and the refusal of the judge to give an instruction in connection with the murder charge. He also requests that we exercise our authority under G.L. c. 278, § 33E, to reduce his murder conviction to a lesser degree of guilt or to order a new trial. He makes four other claims under the standards set forth in Commonwealth v. Moffett, 383 Mass. 201, 216-217, 418 N.E.2d 585 (1981). Rise, also represented by new counsel on appeal, argues that the evidence was insufficient to convict him, error occurred in the admission of the blood spatter evidence and in the prosecutor's closing argument, and his trial counsel provided ineffective assistance. We reject the arguments of both defendants and discern no basis on which to exercise our authority under G.L. c. 278, § 33E, to reduce the murder convictions to a lesser degree of guilt or to order a new trial.

Based on the Commonwealth's evidence, the jury could have found the following facts. On January 11, 2000, at approximately 11:45 P.M., police went to 951 Blue Hill Avenue, a three-family house in the Dorchester section of Boston, in response to a radio call. On arrival, the police found the victim, a known drug dealer who ran his business from his second-floor apartment, lying on the front lawn. The victim was alive and gurgling, with his head and face covered in blood. He was transported to a hospital, where he later died.

Earlier that evening, Shawn Echols and Courtney Woods (Woods), who were friends of the victim, arrived at the house where the victim lived. Woods entered the house while Echols stayed outside and spoke with a neighbor, Rhonda Woods (Rhonda). At some point, Rise, whom Echols knew, walked past Echols and greeted him. Rise, who was alone, approached the porch and Woods opened the door to let him in. Rise was wearing a tan jacket with a red and blue checkered shirt. Seconds later, from across the street, Phillips and an unknown man approached the house. Woods let them in. Phillips was wearing a green army fatigue jacket with army fatigue pants; the other man wore a black baseball cap with a black leather jacket.

Shortly after the men entered the house, Echols heard gunshots and yelling. Echols looked up to see the victim hanging out of a second-floor window upside down. Echols saw people behind the victim, but could not see who was holding the victim. The victim remained suspended for about four seconds before being dropped to the ground. The victim landed on his head. Seconds later, Rise, Phillips, and the unknown male ran out of the front door of the house. Rise was carrying something wrapped in a sheet.

The police arrived and questioned Echols. He told them what he had observed, provided them with a description of each of the three men, and indicated the direction in which they ran. Over a police channel, a police officer broadcast a description of the three men: three black males—one wearing a leather jacket; one wearing an army-type, olive colored jacket; and one wearing a tan jacket. Echols entered a police cruiser to assist the police in making an identification of the men. Other officers, however, located the defendants. The defendants were not found together, but were found at least four city blocks apart.

Shortly after the broadcast, Officer Alvin Holder and his partner, Officer George Exilien, observed Phillips, who wore a green camouflage military jacket, behind a tree on Nightingale Street. Officer Holder attempted to stop Phillips, who did not immediately comply. Phillips gave contradictory answers about where he was going. As Officer Holder frisked Phillips he felt a wet spot on his clothes and, in a pocket, found a large wallet containing the victim's identification. In the yard next door to where he apprehended Phillips, about twenty feet away, Officer Holder (assisted by Officer Charles J. Cellucci, Jr.) found two loaded firearms, a Davis .380 caliber semiautomatic handgun and a Lorcin nine millimeter semiautomatic handgun, underneath an automobile raised on jack stands. Echols was brought to Phillips and identified him as one of the men he had seen entering and leaving the victim's apartment.

In the meantime, Officers Michael P. Murphy and George Beaulieu observed Rise slowly running up Millet Street toward Harvard Street. Rise stopped running, began walking, and told the officers that the "boys" who had just shot that "dude" had run "down there," pointing behind him back down Millet Street. Rise then took off, running down Harvard Street. The officers left their cruiser to chase him. Rise jumped over a fence, turned onto Radcliffe Street, shed his jacket, and evaded the officers. The officers used their radio to enlist assistance from other officers.

Officers James Nolan and Cellucci soon thereafter observed Rise entering the back yard of 60 Radcliffe Street. After a struggle, the officers apprehended Rise by taking him to the ground. Rise told them, "You got me," "I give up," and "I am a victim." The officers retrieved a pair of black leather gloves and a blue knit hat from the ground underneath Rise. They also retrieved Rise's tan jacket on which there was a substantial amount of blood. Police brought Rise in their cruiser to Bernard Street, where Echols identified him. The third suspect was never apprehended.

The defendants were transported to a police station. Their clothes were taken and forwarded to the crime laboratory for analysis. As Officer Murphy waited for Rise in a reception area, Sergeant Daniel Keeler, approximately four feet away, spoke on the telephone. When Sergeant Keeler mentioned, in his telephone conversation, that some jewelry was found at the scene, Rise stated that he had lost some jewelry, namely, a rope chain and bracelet. Rise claimed the jewelry had been "ripped off him" and possibly could be found in the hallway of 951 Blue Hill Avenue.

The police searched the victim's apartment. On entering the three-family house, there was a foyer and a door that led to the first-floor apartment. To the right of the foyer area, there was another door that led to a set of stairs. These stairs went to the victim's second-floor apartment. On the stairs, police recovered a black bag containing "crack" cocaine.

Inside the victim's apartment, the police recovered almost $20,000 in cash, jewelry, marijuana, and cocaine. A glass panel on French doors leading to the living room was broken. A window in the living room also was broken. There were bloodstains and pools of blood throughout the victim's apartment, including in the hallway, kitchen, bathroom, bedroom, living room, and on various items within. Blood was found outside the victim's apartment, including in the stairway leading to his apartment, in the first-floor hallway, on the outside porch door, on the stairs outside the house, and on the exterior siding of the house below the second-floor window from which the victim was dropped.

The victim died as a result of multiple stab wounds and blunt head trauma. He had thirteen stab wounds and twenty incised wounds⁵ over his body. The victim had suffered trauma to his face, head neck, arms, legs, abdomen, and lower portion of his chest. There was hemorrhaging in the area under his scalp, to the right and left temple, to the back of the scalp, and to the top of his scalp. The victim had multiple lacerations⁶ on his lips, nose, forehead, scalp, and back of his head. These particular injuries were consistent with force inflicted by a blunt instrument, possibly a "gun." Additionally, the right side of the victim's skull was fractured, and the bones of his neck were traumatized, consistent with an injury to the top of a person's head, such as a fall. The victim had traces of cocaine in his system at the time of his death.

While fingerprints were present on the firearms recovered, there was insufficient ridge detail to make an identification. Testing conducted on the clothing of Phillips and Rise showed the presence of human blood. Human blood was also detected on Rise's personal property, including his wallet, a one dollar bill, his watch, and his plastic electronic organizer. Deoxyribonucleic acid (DNA) testing further showed that the victim's DNA was a possible source of the blood extracted from the Lorcin magazine, Phillips's jacket, Rise's jacket, and Rise's jeans.

A Boston police department criminalist, Michael Gorn, testified about the blood evidence...