Com. v. White

• Decision Date: 18 April 1996
• Citation: 663 N.E.2d 834,422 Mass. 487
• Parties: COMMONWEALTH v. Kenneth WHITE (and three companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 834

663 N.E.2d 834

422 Mass. 487

COMMONWEALTH v. Kenneth WHITE (and three companion cases ¹).

Supreme Judicial Court of Massachusetts Middlesex.

Argued Nov. 8, 1995.

Decided April 18, 1996.

INDICTMENTS found and returned in the Superior Court Department on December 24, 1991.

The cases were tried before Catherine A. White, J., and a motion for a new trial was considered by Nolan, J., in the Supreme Judicial Court for the county of Suffolk.

Richard M. Passalacqua, Boston, for Whittaker White.

Carlo A. Obligato, Boston, Committee for Public Counsel Services, for Kenneth White.

Marguerite T. Grant, Assistant District Attorney (Adrienne C. Lynch, Assistant District Attorney, with her) for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

On December 24, 1991, a Middlesex County grand jury returned indictments against two brothers, the defendants Kenneth and Whittaker White, charging them with murder in the first degree, see G.L. c. 265, § 1 (1994 ed.), ² and armed assault in a dwelling, see G.L. c. 265, § 18A (1994 ed.). ³ Both defendants were tried jointly before the same jury, and were found guilty on the indictments. The Commonwealth tried the first degree murder charges on theories of joint venture felony-murder, joint venture murder with deliberate premeditation, and joint venture murder with extreme atrocity or cruelty. ⁴

On appeal, the defendant Whittaker White (Whittaker) claims the judge erred in (1) denying his motion for required findings of not guilty, see Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979), and (2) denying his motion to suppress evidence resulting from a warrantless search of his automobile. The defendant Kenneth White (Kenneth) claims the judge erred in (1) denying his motion for required findings of not guilty, and (2) admitting evidence of the telephone number he called pursuant to G.L. c. 276, § 33A (1994 ed.) (statutory right to make telephone call after arrival at police station). Further, both defendants request this court to exercise its power under G.L. c. 278, § 33E (1994 ed.), to reduce the sentences. Finally, Kenneth appeals from the denial by a single justice of this court on October 17, 1994, of his motion for a new trial. ⁵ We affirm the judgments and the order of the single justice.

We summarize the facts in the light most favorable to the Commonwealth. Commonwealth v. Grant, 418 Mass. 76, 77, 634 N.E.2d 565 (1994). Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). In the late afternoon of November 15, 1991, Michael Kalil arrived at 49 Clark Street in Malden. Daniel "DJ" Woodley, an occupant of the apartment, allegedly was an illicit drug and gun dealer. Kalil often visited Woodley's rented apartment to purchase drugs. As Kalil approached the second-floor landing, he encountered a six-foot tall black man wearing a three quarter-length green army fatigue jacket, dungarees, and "satiny-type black ninja-style hood with a little face opening," carrying a "submachine-style pistol." This man, alleged to be Whittaker, held the gun to Kalil's head, told Kalil to "be cool or [he'd] kill [him]," and forced him to continue up the stairs. On the third-floor landing he saw four more men. Each was armed and wore some sort of mask. One wore a translucent clown mask, black baseball cap and black jacket with an Oakland Raiders insignia. ^{6 6} Another wore a black, three-quarter length quilted jacket with a grey lining and carried a semi-automatic pistol, "like a [nine millimeter] or a Colt." This man was alleged to be Kenneth. As Whittaker led Kalil up the stairway, Kenneth put a gun to Kalil's head, and moved to Kalil's side opposite Whittaker. The remaining men stood behind Kalil. Kenneth told Kalil, "Knock on the door, and be quiet, and be cool or you're dead."

Inside the apartment there were four people. Woodley and the victim David Morley were in Morley's bedroom, closest to the front door. ⁷ Another roommate, Andre Hunter, was in the middle bedroom with his half-brother, Terry Thompson. Morley, on hearing Kalil's knock on the door, asked who it was. Kalil responded "Mike," whereupon Morley opened the door. The men rushed into the apartment, shoving Kalil out of the way. Morley rushed for or was pushed into his bedroom. Someone yelled "Freeze, police," and shots were fired. Morley was shot and later died from loss of blood resulting from multiple gunshot wounds. Woodley crawled under a bed, Thompson jumped into a closet, and Hunter crawled between his mattresses. Thompson and Hunter saw none of the intruders, and Woodley saw only a hand of one of the men. He described seeing a black hand, holding an Uzi, protruding from the sleeve of a green army fatigue jacket. The Commonwealth asserted at trial that this was the hand of Whittaker. Kalil saw the man in the green army jacket (Whittaker) and the man in the clown mask leave Morley's bedroom immediately after Morley was shot.

Herbert Smith was repairing an automobile outside 49 Clark Street when he heard gunshots at around 3:55 P.M. He saw four men walk single file toward him and enter two automobiles. One was a brown Nissan Stanza or Maxima with a Massachusetts license plate. The other was a light-brown, two-door Camaro hatchback, with a large "swirly" antenna on the hatch, a New York license plate containing the digits "F22" or "F25" on its face, a dent on the fender, and a piece of molding hanging from the driver's side door.

The information about the shooting, including the description of the suspects and the vehicles, was disseminated at the evening roll call to Boston police officers at approximately 5:30 P.M. ⁸ At approximately 6:50 P.M. that evening, Officers Raymond Ramirez and Santos Hernandez, while in an unmarked police cruiser, saw a brown Camaro fitting the description of the automobile seen at the earlier home invasion. The vehicle's New York license plate number was F5B362. The officers followed the automobile for approximately one mile before stopping the Camaro and calling for backup assistance. The officers approached the automobile with flashlights, and observed a green army fatigue jacket behind the driver's seat and a black jacket behind the passenger's seat. These jackets matched the description of the clothing worn by the assailants given earlier to the police. Whittaker was driving the automobile, while Kenneth was in the front passenger seat watching a small, portable television. Ramirez instructed Whittaker to turn off the engine and took Whittaker's keys. When asked for identification, Whittaker produced a New York learner's permit, and Kenneth produced identification in the name "Lawrence White." ⁹ The officers ordered the defendants out of the vehicle, pat-frisked them, and searched the automobile. They retrieved the two jackets, a black ninja-style mask and address book, both located in the pocket of the green army jacket, and various other items. In a closed compartment over the rear quarter panel on the left side, Officer Hernandez located a gray gym bag containing two guns. One was a Cobra semi-automatic pistol with a detached but loaded clip and the other was a fully loaded Glock semi-automatic nine millimeter handgun. It was later determined that eight nine-millimeter casings and five projectiles recovered at the scene of the intrusion were fired from the Cobra. The Glock was not fired at the scene. No identifiable fingerprints were found on either of the guns or on the magazine cartridges. The defendants were arrested and taken to the police station.

Whittaker and Kenneth were booked at 8:15 P.M. Kenneth exercised his right to make a telephone call. See G.L. c. 276, § 33A. Pursuant to standard policy, Kenneth told the booking officer the number he wished to call and the officer dialed the number for Kenneth, noting the number on Kenneth's booking sheet. The telephone number called was listed to the residence of Philip Morris. ¹⁰

Whittaker waived his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and gave the following account of his whereabouts earlier in the day. He, his brother, and his girl friend drove to Boston from New York. At some time between 3 and 3:30 P.M., they went to Boston City Hall to obtain a copy of a birth certificate of Whittaker and his girl friend's child. ¹¹ Whittaker and Kenneth intended to remain in their automobile while Whittaker's girl friend obtained the birth certificate, but they later left the area while Whittaker's girl friend was still inside. Whittaker testified that he and Kenneth then went to Philip Morris, Jr.'s, home, where Morris and Stanley Oblines ¹² were present. Whittaker lent his automobile to them, telling them to return within one-half hour. He and Kenneth then fell asleep, and when Whittaker awoke between 3:30 and 4 P.M., Kenneth was watching cartoons. The two went to a pizza shop at approximately 5 P.M., ate pizza, and drank sodas. Oblines was present at Morris's house when Whittaker and Kenneth returned. Whittaker stated that he and Kenneth then left Morris's house after arguing about the delay in returning the automobile, and were on their way to pick up Whittaker's girl friend and return to New York when they were pulled over by police.

Kenneth's statement to police, given approximately one hour after the police had questioned Whittaker, differed significantly from that given by Whittaker. Kenneth stated, after receiving and waiving Miranda warnings, that the two arrived from New York the previous day, that he was staying at an apartment in Boston, that he did not know whose apartment it was, and that he did not talk to the occupants of the apartment nor did they talk to him. He stated that he had been up late the night before, slept until late in the afternoon, and watched cartoons when he awoke. His brother then returned to the apartment and they were on their way to New York when stopped by police.

On ...