Com. v. Vick

• Decision Date: 30 July 2009
• Docket Number: SJC-10385
• Citation: 454 Mass. 418,910 N.E.2d 339
• Parties: COMMONWEALTH v. Jonathan VICK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

910 N.E.2d 339

454 Mass. 418

COMMONWEALTH v. Jonathan VICK.

SJC-10385

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 6, 2009.

Decided July 30, 2009.

Peter M. Onek, Boston, Committee for Public Counsel Services, for the defendant.

Denise J. Casper, Assistant District Attorney (Elizabeth Keeley, Assistant District Attorney, with her) for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

SPINA, J.

A Superior Court jury convicted the defendant, Jonathan Vick, of armed assault with intent to murder, assault and battery by means of a dangerous weapon causing serious bodily injury, unlawful possession of a firearm, and unlawful possession of ammunition for the shooting of Hakeem Shepherd in Everett on July 27, 2006.¹ The defendant appealed from his convictions, and we granted his application for direct appellate review. The defendant now contends that (1) the judge erred in instructing the jury, over his objection, that they could consider his alleged flight and his statements to the police as evidence of consciousness of guilt; (2) the judge erred in refusing to instruct the jury that they should return a verdict of armed assault with intent to kill, rather than armed assault with intent to murder, if they determined that the Commonwealth had failed to prove the absence of mitigation beyond a reasonable doubt; and (3) his conviction of assault and battery by means of a dangerous weapon causing serious bodily injury was duplicative of his conviction of armed assault with intent to murder. For the reasons that follow, we affirm the defendant's convictions.

1. Background. We recite the facts the jury could have found, leaving certain facts for development in the discussion of the issues.

On the morning of the shooting, Stephen Reid was sitting in his parked truck on Ferry Street, near Glendale Park, waiting for his coworker, Bernard Lloyd, Jr., to run an errand when two young black males emerged from a side street, joined up with a third, and walked past his vehicle. Reid heard one of them say "[L]et's go get this f'n kid," as if looking for a fight. The three young men proceeded to walk down the middle of the street, impeding the flow of traffic. After Lloyd returned from his errand and climbed into the truck, he and Reid began to drive down Ferry Street, but they soon had to stop when another group of young black males (five or six in number) emerged from Glendale Park and an altercation between the two groups erupted in the middle of the street.

Reid and Lloyd had a close, clear, and unobstructed view of the altercation. They observed that the two groups were very agitated, pushing and shoving each other, arguing, hopping up and down, and sticking their fingers in each other's chests. Reid testified at trial that a member of the group from Glendale Park, who was wearing a distinctive black T-shirt with white writing on it² over what appeared to be a white undershirt and a black "do-rag" on his head, and who was later identified by that T-shirt as the defendant, began fighting with the victim, Hakeem Shepherd. The victim testified that he had been "the first one to run up," expecting to engage the group from Glendale Park in a fist fight. During the course of this fight, the defendant pulled a gun from his waistband and shot the victim once in the chest at close range. The victim was not armed. Right after he was shot, the victim ran to a nearby video store, while the defendant and his group ran back into Glendale Park. Reid and Lloyd immediately approached Officer Matthew Cunningham to report the shooting, telling him what they had seen and informing him that the defendant and his group had fled into Glendale Park. Lloyd testified at trial that the entire incident unfolded very quickly.

Everett police Officer Michael Marchese responded to the scene and found the victim lying on the floor inside Superstar Video, his white T-shirt covered in blood and a gunshot wound through the right side of his chest. When Officer Marchese asked the victim who had shot him, he replied, "somebody from Boston." Shortly thereafter, the victim was transported to Massachusetts General Hospital, where he spent five or six days recovering. At trial, the victim would not identify his shooter, explaining, "You can't snitch."

In the meantime, Officer Cunningham ran into Glendale Park, which was filled with people, many of whom were using the swimming pool and recreation center. He approached a trio of black males, one of whom, later identified as Dion Smith, was carrying a backpack. When Officer Cunningham ordered the men to stop, Smith tried to give the backpack to the other two, but they would not take it. Smith ran toward a park exit with the backpack in hand. While in pursuit, Officer Cunningham saw Smith remove his white T-shirt, put it into the backpack, and throw the backpack into a barrel in a row of trash barrels. Officer Cunningham immediately retrieved the backpack and discovered that it contained a white T-shirt and a firearm. Officer Cunningham secured the backpack and its contents, and then assisted with the capture of Smith. Also apprehended were Tyrique Scott, John Pelzer, and William Deans, none of whom was carrying a weapon. While these individuals were being taken into custody, Officer Joseph Imbornone observed the defendant, still wearing the black Trix T-shirt, walking away from the area. Detective Alan Peluso, who was assisting Officer Imbornone, detained and arrested the defendant.

The defendant was handcuffed and escorted to an area in Glendale Park directly across from the Everett police station where the other individuals who had been arrested were being held. At this point, Reid and Lloyd were standing across the two-lane street from the group of detained individuals, whom the police had positioned along a chainlink fence. The police asked Lloyd if he could see the person who had done the shooting, and he identified the defendant "[b]y his Tricks t-shirt." The police asked Reid to point out to them the individual who was the shooter, and Reid identified the defendant by the same shirt, adding that he specifically remembered "the white collar around the neck." The defendant then was escorted to the police station. He was placed in a holding cell along with the other young men who had been arrested in connection with the incident. At the time he entered the holding cell, the defendant was wearing the black Trix T-Shirt, and William Deans, the defendant's cousin, was wearing a white T-shirt. Later, Deans had on the black Trix T-shirt, and the defendant was wearing just his undershirt.

That same evening, the defendant spoke with State Trooper Kevin Baker and Everett Detective Alfred Sabella. After indicating that he understood the Miranda warnings and signing a Miranda waiver form, the defendant refused to give permission for the tape recording of his interview, but he agreed to speak with the officers. During the course of a thirty to forty-five minute interview, the defendant provided his address in the Roxbury section of Boston. He claimed that he had come to Everett "to chill" with his cousin William, and that he had no issues or problems with anyone in the area. The defendant told the officers that, at the time of the shooting, his group had been walking to the swimming pool operated by the Metropolitan District Commission (MDC) in Everett, down the street from where the shooting occurred. He claimed that, after hearing the sound of one gunshot, he saw nothing out of the ordinary, his group continued walking, and they were arrested a short time later. The defendant admitted that the black Trix T-shirt was his and that he had been wearing it all day, but the defendant said that he had given it to Deans in the holding cell because his cousin was cold.

Erica Blais, a chemist with the State police crime laboratory, testified that the defendant's black T-shirt tested negative for blood and gunshot residue. The firearm recovered from the backpack was examined, and its cylinder was discovered to contain a discharged cartridge casing (from one shot fired) and two live rounds (which had not yet been fired).³ The revolver was dusted for fingerprints, but there was insufficient ridge detail for comparison. The firearm's handle, trigger, and hammer, and the cartridge casing and ammunition, were all swabbed for deoxyribonucleic acid (DNA), but no DNA testing was performed.

At trial, the theory of the defense was that the defendant had been misidentified as the shooter and that no forensic evidence otherwise tied him to the scene of the crime. At the conclusion of the Commonwealth's case, the defendant made an oral motion for required findings of not guilty, which was denied. The defendant then rested his case without presenting any witnesses or evidence.

2. Instruction on consciousness of guilt.⁴ The defendant first

contends that the judge erred in instructing the jury, over his objection, that they could consider his alleged flight from the scene and his statements to the police as evidence of consciousness of guilt. He asserts that the grounds for the prosecutor's request for such an instruction were evidence that: he was observed "walking away from the area" where the shooting occurred; he told Trooper Baker that, at the time of the shooting, he simply was going to the nearby MDC swimming pool with his cousin; and he told Trooper Baker that, while in the holding cell, he had given his black Trix T-shirt to his cousin because his cousin was cold. The defendant argues that none of this evidence indicated a consciousness of guilt. Further, the defendant continues, the judge's instruction was highly prejudicial because it improperly suggested to the jury that his statements and actions may have had criminal connotations when, in the defendant's view, the evidence against him was far from overwhelming. We conclude that in the circumstances of...