Com. v. Williams

• Citation: 422 Mass. 111,661 N.E.2d 617
• Parties: COMMONWEALTH v. Leroy WILLIAMS.
• Decision Date: 20 February 1996
• Court: United States State Supreme Judicial Court of Massachusetts

Page 617

661 N.E.2d 617

422 Mass. 111

COMMONWEALTH v. Leroy WILLIAMS.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Nov. 8, 1995.

Decided Feb. 20, 1996.

INDICTMENTS found and returned in the Superior Court Department on July 5, 1989; Elizabeth J. Dolan, J., and the cases were tried before John F. Murphy, Jr., J.

Earl Howard, Cambridge, for defendant.

Kelly Ann Downes, Assistant District Attorney, for Commonwealth.

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

ABRAMS, Justice.

The defendant, Leroy Williams, appeals from his convictions of murder in the first degree and unlawful carrying of a firearm. ¹ The defendant also appeals from the denial, after a hearing, of his motion to suppress all evidence obtained as the result of his arrest and the denial of his motion for required findings of not guilty. We conclude that the conviction for murder in the first degree should be affirmed. We decline to exercise our extraordinary power under G.L. c. 278, § 33E (1994 ed.), to enter a verdict of a lesser degree of guilt or order a new trial. We also affirm the conviction for unlawful carrying of a firearm.

We set forth the facts in the light most favorable to the Commonwealth. Commonwealth v. Nichypor, 419 Mass. 209, 210, 643 N.E.2d 452 (1994). Commonwealth v. Salemme, 395 Mass. 594, 595, 481 N.E.2d 471 (1985). On June 26, 1989, the victim, Leroy Foster, died from multiple gunshot wounds to the chest and arm. The fatal shooting took place at about 11:15 A.M. Gunshots were heard by three witnesses, Sheba Brown, Kevin Boswell, and Fitz Lindo, who saw the defendant and another man flee the building immediately after the shots were fired. Both Boswell and Lindo testified that the defendant was carrying a gun which Boswell described as large, approximately seven to eight inches long, silver with a black handle. ² Boswell and Lindo saw the defendant throw something over a fence into an empty lot. ³

At the time of the shooting, Boston police Officers Paul C. McLaughlin and Daniel Fagan were on patrol in a two-man cruiser travelling inbound on Washington Street toward Codman Square in the Dorchester section of Boston at a slow rate of speed. On reaching the intersection of Washington and Aspinwall Streets, Officer McLaughlin observed two black males running at "sprint pace" down Washington Street. He observed that bystanders had turned toward the runners and were pointing at them. He saw the defendant pull a white shirt over his head and discard it. ⁴ McLaughlin also noticed that this man was sweating and had a strained expression on his face.

As the officers began to follow the men, an unidentified white, middle-aged man approached the cruiser and handed Officer Fagan a beeper, stating, "I don't know what happened but one of them dropped this." ⁵ The officers continued to follow the men but did not activate the cruiser's lights or siren, nor call to the men to stop. Neither man turned to look at the cruiser. On Hopestill Street, the officers observed the defendant run behind a house. Officer Fagan got out of the cruiser to investigate while McLaughlin drove the cruiser around the corner to Talbot Avenue. Officer McLaughlin then stopped the cruiser and proceeded to investigate on foot. He observed the defendant, who he now noticed was covered with blood, attempt to scale a chain link fence. McLaughlin identified himself as a police officer and ordered the defendant to stop. The defendant retreated back through the yards. At this point, Officer McLaughlin drew his service revolver and followed the defendant. He located the defendant behind a blue house and again ordered him to stop and get on the ground. The defendant stated, "I didn't mean it, I didn't mean it, I don't want to go back to prison." ⁶ The defendant also stated that he had been shot but the officer observed no wounds. As Officer Fagan arrived, the defendant got up and attempted to run past Officer McLaughlin. Both officers pushed the defendant to the ground and attempted to handcuff him as he resisted.

While handcuffing the defendant, the officers received a radio broadcast reporting a confirmed shooting at 544 Washington Street, approximately 200 to 400 yards from where they had stopped the defendant. In response to Officer Fagan's request for a description of the suspects, the dispatcher described a short, dark-skinned, black male and a tall, light-skinned, black male, shirtless and covered with blood. Fagan reported that the latter description matched that of an individual they now had in custody and was instructed to bring the suspect back to the scene of the shooting.

On route to 544 Washington Street, the defendant was read the warning required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and shown to the civilian witnesses. See Commonwealth v. Bumpus, 362 Mass. 672, 675, 290 N.E.2d 167 (1972), judgment vacated and remanded on other grounds, 411 U.S. 945, 93 S.Ct 1941, 36 L.Ed.2d 407 (1973), aff'd on rehearing, 365 Mass. 66, 309 N.E.2d 491 (1974), reviewed on petition for habeas corpus sub nom. Bumpus v. Gunter, 452 F.Supp. 1060 (D.Mass.1978), denial of writ aff'd, 635 F.2d 907 (1st Cir.1980), cert. denied, 450 U.S. 1003, 101 S.Ct. 1714, 68 L.Ed.2d 207 (1981) (defendant may be shown to witnesses for identification prior to arrest). Both Lindo and Boswell identified the defendant as one of the two men they had seen running from the apartment following the gunshots. The defendant was then searched for weapons. The police recovered two plastic bags on the defendant's person, one containing a substance later identified as cocaine and the other a substance later identified as marihuana. ⁷ The defendant was then taken to the police station and booked. During the search incident to booking, the police discovered, on the defendant's person, a BayBank Express card in the name of Norris A. Foster. The defendant admitted that the card belonged to the victim, Leroy Foster. ⁸ The defendant's cap, pants, and sneakers were taken for blood analysis at the request of the assistant district attorney. The analysis revealed the presence of human blood but the blood type could not be determined.

Later investigation at the scene of the shooting revealed all windows, except those facing the front of the apartment, were shut and locked. There was no practical means of leaving the building other than the front door and no persons were found in the hallway or corridors of either building.

An autopsy of the victim revealed that he had sustained three gunshot wounds, two to the chest and one to the upper right arm. The first chest wound appeared to be a distance wound. From observation of stippling around the second wound, the medical examiner determined that this wound was inflicted at close range. The medical examiner determined that either chest wound was fatal.

I. Motion to suppress. The defendant sought to suppress all physical evidence and his statements. He argued that the stop and subsequent arrest were unlawful and in violation of his rights under art. 14 of the Massachusetts Declaration of Rights. ⁹ The judge denied the defendant's motion to suppress stating that the police officers had "specific and articulable facts to warrant the initiation of a pursuit" and that the officers' suspicion reasonably escalated so that at the time of confrontation between Officer McLaughlin and the defendant "a Terry-type stop and frisk, at the very least, was warranted." See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The Commonwealth bears the burden of demonstrating that the police officers acted lawfully in pursuing and seizing the defendant. Commonwealth v. Shields, 402 Mass. 162, 164, 521 N.E.2d 987 (1988). The degree of suspicion the police reasonably harbor must be proportional to the level of intrusiveness of the police conduct. Commonwealth v. Moses, 408 Mass. 136, 141, 557 N.E.2d 14 (1990). Commonwealth v. Borges, 395 Mass. 788, 794, 482 N.E.2d 314 (1985).

We first consider whether the confrontation in the back yards at Aspinwall Street was a permissible investigatory stop. See Commonwealth v. Willis, 415 Mass. 814, 817, 616 N.E.2d 62 (1993) (to conduct threshold inquiry, police officer must have reasonable suspicion, based on specific, articulable facts and reasonable inferences that the defendant has committed, is committing, or was about to commit crime). See also Terry v. Ohio, supra. Review of the officers' conduct in effectuating a threshold inquiry requires a two-part analysis: first, whether it was permissible to initiate investigation and second, whether the scope of the seizure was justified by the situation. See Terry v. Ohio, supra at 19-20, 88 S.Ct. at 1878-1879. See Commonwealth v. Helme, 399 Mass. 298, 300, 503 N.E.2d 1287 (1987); Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895 (1974). We view the facts and circumstances as a whole in assessing the reasonableness of the officers' conduct. See Commonwealth v. Fraser, 410 Mass. 541, 545, 573 N.E.2d 979 (1991) ("a combination of factors that are each innocent of themselves may, when taken together, amount to the requisite reasonable belief"); Commonwealth v. Thibeau, 384 Mass. 762, 764, 429 N.E.2d 1009 (1981).

The defendant focuses his argument on the first prong of the two-part analysis. He argues that the police had no reasonable and articulable suspicion justifying pursuit, which the defendant contends initiated when the police began to follow him in the cruiser. We do not agree. When the police first spotted the defendant running and decided to follow in their cruiser, they were merely observing rather than pursuing the defendant. No degree of suspicion, reasonable or otherwise, was constitutionally required for the police to commence surveillance. Michigan v. Chesternut, 486 U.S. 567, 576, 108 S.Ct. 1975, 1981, 100 L.Ed.2d 565 (1988) (police not required to have particularized and objective...