Commonwealth v. Alcide

• Decision Date: 13 July 2015
• Docket Number: SJC–10342.
• Parties: COMMONWEALTH v. Jimmy ALCIDE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

472 Mass. 150

33 N.E.3d 424

COMMONWEALTH

v.Jimmy ALCIDE.

SJC–10342.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 6, 2015.

Decided July 13, 2015.

Matthew A. Kamholtz, Boston, for the defendant.

Kevin J. Curtin, Assistant District Attorney, for the Commonwealth.

Present: GANTS, C.J., SPINA, BOTSFORD, LENK, & HINES, JJ.

Opinion

LENK

, J.

Sharif Shaheed was shot and killed in the aftermath of an argument between two groups of friends outside a Lowell pub. The defendant, charged with Shaheed's murder, posited at trial that a third party had been the shooter. A Superior Court jury returned a conviction of murder in the first degree on a theory of deliberate premeditation. The defendant filed a motion for a new trial, asserting, among other things, that his trial counsel provided constitutionally ineffective assistance. The motion was denied by

the judge who had presided at trial. Before us is a consolidated appeal from the defendant's conviction and from the denial of his motion for a new trial.

There is no dispute that the defendant's counsel did not prepare for trial in an adequate manner. Among other things, defense counsel did not familiarize himself with the Commonwealth's discovery file, did not examine the physical evidence collected by police, did not conduct any independent investigation of the case, and did not consider seeking exclusion of any of the Commonwealth's evidence. Because of counsel's inadequate preparation, significant pieces of evidence supporting a third-party culprit defense were not introduced at trial. In addition, two in-court identifications of the defendant were admitted that, if objected to, could have been excluded. Although the case against the defendant was a strong one, it was not overwhelming, and we are persuaded that “better work might have accomplished something material for the defense.” Commonwealth v. Bell, 460 Mass. 294, 303, 951 N.E.2d 35 (2011)

, quoting Commonwealth v. Johnson, 435 Mass. 113, 123, 754 N.E.2d 685 (2001). In essence, the defense available to the defendant was aired so inadequately at trial as to create a substantial likelihood of a miscarriage of justice. Accordingly, we vacate the defendant's conviction and remand for a new trial.

1. Background. a. Shooting and trial. The evidence at trial centered on an incident that occurred outside a pub in Lowell one night in July, 2006.¹

Two separate groups of friends visited the pub that night. One

group included the victim; his fiancée, Arlene Cruz; his cousin, Keash Hardin; and two of their friends, Luis Parella and a woman named Tammi. This group was planning to attend a birthday party at a house located across the street from the pub. Other partygoers, including Leslie Berube and Benjamin Jones, witnessed the victim's killing from the area of that house.

The other, larger group included the defendant; five of his friends: Oriol Kedgy Dor, Estevenson Etienne, Fritzgerald St. Preux, Robenson Brinville, and Jimmy Semextant; and at least four unidentified individuals, who met with Dor in Boston that day and followed him back to Lowell.

The group that included the victim entered the pub briefly. So did several members of the group that included the defendant. The rest of the defendant's group remained outside, near the pub door. All of the individuals who had gone into the pub trickled back out, beginning with the victim's group. When the victim's group was again outside, by the door, and as the remaining members of the defendant's group were exiting, the two groups began arguing. Dor asked, “Who's Keash?” or “Are you Keash?” or words to that effect. Hardin, the victim's cousin (who was, in fact, Keash), answered that he was not. The victim then asked, according to Hardin's testimony, “If it was Keash, what would have happened?”

Semextant, another member of the defendant's group, told Hardin and the victim not to ask any questions. Hardin responded by punching Semextant in the face. The crowd dispersed in a frenzy of running, perhaps (as Hardin testified) after a man standing next to Semextant brandished a gun.²

The victim ran away from the pub, and later circled back

around toward it. Semextant was heard calling out, in Haitian Creole, “Shoot! Shoot!” Two shots were fired. One bullet hit the victim in the back of his head, killing him. Two casings from a .380 automatic caliber weapon were later found at the scene.

The background to this encounter remained murky at trial. Estevenson Etienne (one of the defendant's friends) testified that Dor (another friend) had initiated the visit to the pub because Dor had been “arguing with a guy in there.” According to Etienne, he and Dor knew that “there could be a fight” that night. Another member of the defendant's group, Fritzgerald St. Preux, said that Dor had traveled to Boston that day in order to “pick up some of” [Dor's] boys.” Both St. Preux and Dor reported that Dor had been in a squabble at the pub on some earlier date, but they both said that that argument was resolved on the spot, and that it involved neither the victim nor Hardin.

The disputed question at trial was whether the defendant was the man who shot the victim. The murder weapon was not recovered, and no forensic evidence identified the defendant as the shooter. The Commonwealth's case thus relied heavily on the incriminating, and generally consistent, testimony of the defendant's friends, Etienne, St. Preux, Robenson Brinville, and Dor.³ Close ties were shown between these friends; in particular, Dor's sister and the defendant's brother have two children together. All four of the defendant's friends described statements in which he admitted to shooting the gun. In addition, Etienne testified that he witnessed the defendant lift his hand just before a gunshot rang out and the victim fell; Brinville testified that Semextant had given the defendant a gun earlier that night; and both Etienne and Dor testified that Semextant was addressing the defendant when he said, “Shoot! Shoot!”

Two other eyewitnesses identified the defendant as the gunman: Hardin, and Howard Jewell, who was checking identification documents at the pub door that night. Hardin testified, on direct examination, that he had been unable to pick the defendant out of a

photographic array approximately one week after the shooting. Subsequently, however, according to Hardin, he saw the defendant's photograph in a newspaper, and he then recognized the defendant as the shooter. Hardin's cross-examination revealed that the newspaper article he had seen was about the shooting, and that the only photograph included in the article was of the defendant. Jewell, on cross-examination, revealed that the background to his identification was similar: at a photographic array conducted soon after the shooting, Jewell picked out the photograph of the defendant, but wrote on the back of the photograph only that the man “[l]ooks familiar. Was there.” Jewell also initialed a second photograph in the array, of a person who was never identified. By the time Jewell testified at trial, he had seen a photograph of the defendant in a newspaper. Unlike Hardin, Jewell testified also that, about two weeks before the trial, he was shown a single photograph of the defendant at the district attorney's office.

Benjamin Jones, one of the friends of the victim who witnessed the incident from across the street, did not identify the defendant. Jones stated, however, that the shooter had a “low, tight, bald haircut.” According to several witnesses, the defendant had short hair at the time of the shooting, whereas Etienne, St. Preux, and Dor reported that they had each then worn dreadlocks or braids.⁴ Jones testified also that the shooter ran to a light- or tan-colored Honda Accord. The defendant's vehicle was a blue-grey Dodge sedan. The other vehicle in which friends of the defendant traveled that night was a van.

Leslie Berube, another friend of the victim who was standing across the street when the shots were fired, was eighty per cent confident that the defendant's photograph in a photographic array was that of the shooter. Berube also testified, however, that the shooter dropped a cellular telephone while running; other evidence revealed that the man who dropped his telephone during the incident was Dor, not the defendant.⁵ Berube acknowledged that, immediately after the shooting, her attention was focused on

locating her fiancé, Eric Wilkins, who also was at the pub that night.

Finally, evidence was introduced to suggest a consciousness of guilt on the defendant's part. The defendant changed his telephone number two days after the shooting. Additionally, an officer testified to statements that the defendant made to police following his arrest, approximately nine days after the shooting. While sitting in a police cruiser, after being read the Miranda rights, the defendant was told that he was being charged with murder for a shooting in Lowell. At first, the defendant responded that he did not know anything about the shooting. After he was informed that he had been identified as the shooter, the defendant said that he had been in Lowell a week or two earlier, but that nothing had happened. The defendant initially denied any memory of the names of the friends with whom he had been on that occasion. He stated also that there had been a “problem” that night, but that he himself had not been involved.⁶

At the close of the Commonwealth's evidence, the defendant moved for a required finding of not guilty. The judge allowed the motion only as to the theory of extreme atrocity or cruelty, and otherwise denied it. The defendant did not present evidence. The theory of the defense was that a third party, probably Dor, had been the shooter. Defense counsel's closing argument focused on Berube's testimony that the shooter was the same man who had dropped his cellular telephone, namely Dor, and on certain inconsistencies between the versions of events provided by the defendant's...