Com. v. Walker

• Decision Date: 13 December 2002
• Citation: 438 Mass. 246,780 N.E.2d 26
• Parties: COMMONWEALTH v. Eric WALKER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

780 N.E.2d 26

438 Mass. 246

COMMONWEALTH v. Eric WALKER.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued November 8, 2002.

Decided December 13, 2002.

COPYRIGHT MATERIAL OMITTED

Joseph A. Hanofee, Northampton, for the defendant.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, SOSMAN, & CORDY, JJ.

GREANEY, J.

A jury convicted the defendant of armed robbery and murder in the first degree by reason of both deliberate premeditation and felony-murder (with armed robbery as the predicate felony). A motion for a new trial was denied by the trial judge without an evidentiary hearing. Represented by new counsel on appeal, the defendant argues that (1) probable cause did not exist to support the issuance of a search warrant for his residence; (2) his trial counsel provided constitutionally ineffective assistance of counsel by inadequately cross-examining a principal prosecution witness, Yashica Walker, the defendant's wife; (3) the nonprosecution agreement between the Commonwealth and Yashica should not have been admitted in evidence because it had been inadequately redacted and "read in its entirety ... constituted impermissible vouching by the Commonwealth, directly and inferentially for the truthfulness of [Yashica's] ... testimony"; (4) the judge improperly prevented the defendant's trial counsel from showing bias on Yashica's part by not allowing him to ask her in cross-examination about the life sentences that could be imposed on her for convictions of murder in the first degree and armed robbery; and (5) the judge erred in allowing a police detective to recount a private conversation between Yashica and the defendant that was subject to the marital disqualification set forth in G.L. c. 233, § 20. We find no error and no basis to exercise our authority pursuant to G.L. c. 278, § 33E. Accordingly, we affirm the order denying the defendant's motion for a new trial and the judgments of conviction.

The Commonwealth's evidence disclosed the following. On the evening of March 2, 1998, the victim was murdered by a single gunshot to the head, and a large sum of money was stolen from him. The victim was killed in his room on the third floor of a rooming house at 6 Kingsdale Street in the Dorchester section of Boston. The victim's body was found the next day in a wooded area in Quincy. The body had been wrapped in two plastic bags and several layers of bed linen.

The police investigation brought them, on March 4, 1998, to the room occupied by the defendant and his wife, Yashica, on the third floor of 6 Kingsdale Street. The defendant's room was across the hallway from the victim's room. The defendant told the police that he last saw the victim on March 1, 1998. Four days later, on March 8, 1998, the defendant and his wife moved out of their room at 6 Kingsdale Street to Yashica's family home at 16 Radcliffe Road in the Mattapan section of Boston. When visited by police at his new residence on March 18, the defendant again denied any knowledge of the crime and explained to police that he and his wife had moved out of their room at 6 Kingsdale Street because Yashica had been afraid since the victim's death. The police subsequently ascertained that fingerprints recovered from the plastic bag that covered the lower half of the victim's body matched the defendant's fingerprints, and that a fourth print on the bag matched the print of Yashica's right big toe.

On the evening of March 25, the police obtained a warrant to search 16 Radcliffe Street. During the search, they found a passbook for a Citizens Bank savings account in the defendant's name. Although the defendant lacked regular employment, Citizens Bank records showed that $1,940 in cash had been deposited into his account on March 3, 1998, the day after the murder, and that the defendant had personally made six cash withdrawals from the account from March 9 to March 23. Yashica was not authorized to make withdrawals from this account.

That same evening (March 25), the defendant agreed to go to the Boston police headquarters for a formal interview. After advising the defendant of his Miranda rights, Detective Dennis P. Harris asked the defendant whether he had ever seen any bags in the basement at 6 Kingsdale Street. The defendant answered that he had seen clear plastic bags in the basement once, but he repeatedly denied that he had ever touched them. The detectives informed the defendant that his fingerprints had been found on one of the bags covering the victim's body. The defendant initially accused the police of trying to trick him, but ultimately banged the table and said, "Talk about bad luck." He then claimed that a young, dark-skinned woman with long braids had come to his apartment on the afternoon of March 2, and asked for some bags because she was helping the victim to move. Recalling the bags in the basement, the defendant asserted that he had escorted the lady downstairs and handed her two of the bags.

Meanwhile, another police detective was interviewing Yashica. This detective told Detective Harris that Yashica had implicated the defendant in the murder. Detective Harris returned to the defendant, repeated the Miranda warnings, and informed the defendant of Yashica's statements. The defendant responded, "I don't know why she's saying that stupid shit; she wasn't even there."

Yashica testified at trial pursuant to a nonprosecution agreement. On the evening of March 2, she arrived home from work at about 6:30 or 7 P.M. Later that evening, she had several conversations with the defendant, at first by telephone and later in person. After one of these conversations, the defendant left their room for about five or ten minutes. When he returned, Yashica followed him across the hall to the victim's room. Both of them were wearing gloves. The door to the victim's room was already open. Inside, Yashica saw the victim's body lying on the floor, wrapped in sheets and plastic bags. She also saw that there was blood on the floor. She and the defendant carried the body downstairs to the trunk of an automobile and drove to a remote area, where they dumped the body. Yashica denied that she had been involved to any greater extent in the murder.

In his defense, the defendant maintained, and argued to the jury, that Yashica was lying, and that she had murdered the victim, using the defendant to assist her in carrying and disposing of the body.

1. We reject the defendant's claim that the affidavit supporting the application for the search warrant of his residence at 16 Radcliffe Road failed to establish probable cause. To establish probable cause to search, the facts contained in an affidavit, and reasonable inferences that may be drawn from them, must be sufficient for the magistrate to conclude "that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues." Commonwealth v. Donahue, 430 Mass. 710, 712, 723 N.E.2d 25 (2000). A reviewing court gives considerable deference to the magistrate's determination of probable cause. See Commonwealth v. Upton, 394 Mass. 363, 377, 476 N.E.2d 548 (1985).

The two affidavits of police officers that supported the issuance of the search warrant in this case, when examined under settled standards, see Commonwealth v. James, 424 Mass. 770, 777-778, 678 N.E.2d 1170 (1997), establish probable cause. The facts contained in the affidavits include the following: (1) the defendant lived across the hallway from the victim on the third floor of the building at 6 Kingsdale Street; (2) the victim was seen at work the day before the murder with approximately $1,500 cash; (3) the defendant was slow to answer the door when police knocked to question him on March 4, 1998; (4) on March 8, 1998, the defendant and Yashica moved from 6 Kingsdale Street to 16 Radcliffe Road, even though their rent had been paid at Kingsdale Street until the end of the month; (5) the defendant provided inconsistent explanations as to the reason for this move; (6) the defendant's fingerprints were found on plastic bags on the victim's body; (7) the defendant had served sentences for firearm violations and robbery; (8) the victim had been known to wear gold jewelry that was not found with the victim or recovered from his room; (9) a bloody shoe print, from a shoe with a "Vibrant type" sole, had been found on a pillow recovered from the crime scene. The affidavits by the police provided a substantial basis for concluding that evidence specified on the face of the warrant application (the murder weapon, bloody clothing, the gold jewelry, or the shoes with the "Vibrant type" sole) could be found in the defendant's residence at 16 Radcliffe Road.

2. There is no basis to conclude that the defendant's trial counsel provided him with constitutionally ineffective representation under the standard set forth in Commonwealth v. Wright, 411 Mass. 678, 682, 584 N.E.2d 621 (1992). The defendant argues that his trial counsel's failure to develop and comment on testimony regarding the victim's injury (the angle of the gunshot wound, the path of the bullet, the absence of powder burns at the point of entry); the comparable heights of the victim, the defendant, and Yashica; the lack of forced entry; the fact that the victim had shown $1,500 to coworkers on the day he was murdered; the fact that the defendant had no way of knowing that the victim had any money that day; and the fact that the victim was wearing only a bathrobe and a "vanity cap," deprived him of the substantial defense that Yashica was the perpetrator of the robbery and the murder.¹ The specific theory that the defendant would have had his trial counsel develop from these facts appears to be that Yashica had shot the victim after having been enticed into the victim's room for sexual favors in exchange for cash. The...