Commonwealth v. Bannister

• Decision Date: 21 February 2019
• Docket Number: No. 17-P-361.,17-P-361.
• Citation: 125 N.E.3d 746,94 Mass.App.Ct. 815
• Parties: COMMONWEALTH v. Jamel BANNISTER.
• Court: Appeals Court of Massachusetts

94 Mass.App.Ct. 815

125 N.E.3d 746

COMMONWEALTH

v.Jamel BANNISTER.

No. 17-P-361.

Appeals Court of Massachusetts, Suffolk..

Argued December 4, 2018.

Decided February 21, 2019.

Neil L. Fishman for the defendant.

Colby M. Tilley, Assistant District Attorney (David J. Fredette, Assistant District Attorney, also present) for the Commonwealth.

Present: Kinder, Neyman, & Desmond, JJ.

KINDER, J.

On February 28, 2013, Courtney Jackson was shot twice in the back as he boarded a bus at the Massachusetts Bay Transportation Authority (MBTA) station on Dudley Street in the Roxbury area of Boston. A Superior Court jury convicted the defendant, Jamel Bannister, of murder in the second degree and unlawfully carrying a firearm based on evidence that he aided and abetted Brian Cooper in the shooting.¹ On appeal, the defendant claims that his convictions should be reversed because (1) the police lacked reasonable suspicion to stop him after the shooting and evidence seized thereafter should have been suppressed, (2) there was insufficient evidence of his intent to aid and abet Cooper, (3) he was prejudiced by the erroneous admission of prior bad act evidence, (4) the judge gave erroneous jury instructions that created a substantial risk of a miscarriage of justice, and (5) he was deprived of the effective assistance of counsel when trial counsel failed to request a so-called Daubert- Lanigan hearing on thermal imaging evidence.²

The defendant also raises three issues from which counsel has found it necessary to disassociate himself, in accordance with Commonwealth v. Moffett, 383 Mass. 201, 203-209, 418 N.E.2d 585 (1981). All three are based on a claim that trial counsel was ineffective. First, the defendant faults trial counsel for failing to object to the prosecutor's closing argument. Second, he claims that trial counsel should have moved to suppress the defendant’s statement to the police. Finally, the defendant argues that trial counsel should have challenged two jurors for cause. Discerning no error in the denial of the motion to suppress, the trial, or trial counsel's performance, we affirm.

Background. We summarize the trial evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979). At all relevant times, the defendant and Cooper were members of affiliated street gangs while the victim was a member of a rival gang. The defendant and the victim had a history of confrontation, which included fist fights while the two were incarcerated in 2008 and 2009.

Around 9:48 P . M . on February 28, 2013, the defendant and Cooper approached the victim on a bus platform at the Dudley Street MBTA station (bus station). Video surveillance from the MBTA's cameras shows the defendant and Cooper walking side-by-side onto the platform. They stopped and engaged the victim in conversation. Moments later, as the victim walked away and began to board a bus, the defendant and Cooper each pulled a hand from his pocket, raised an arm, and stepped toward the victim. Cooper fired two shots into the victim's back while the defendant, standing behind Cooper, lowered his arm to his side. The defendant and Cooper then turned and ran from the station toward Washington Street. A witness saw the defendant put a gun into his pocket as he ran. The victim collapsed in the bus and later died from his injuries.

Cooper and the defendant turned left onto Washington Street where they were confronted by Boston police Officers Dominic Columbo and Wilfredo Coriano, who were in the area. The officers responded to the gunshots by drawing their firearms and running toward the bus station. As Cooper and the defendant ran toward the officers, Coriano pointed his firearm at Cooper and ordered him to the ground. Cooper complied, and Coriano recovered a revolver that Cooper was holding behind his back. Coriano observed the defendant "sliding to the right" and told Columbo to stop him. Columbo pointed his firearm at the defendant and ordered him to the ground. The defendant responded, "[F]uck you," and fled. Columbo gave chase and observed the defendant increase his speed as he passed a bank parking lot. Shortly thereafter, the defendant was apprehended by two other officers. He struggled with them and claimed that someone was shooting at him.

After the defendant was detained, officers retraced his steps and discovered a small bag of what was later determined to be cocaine. They also found a loaded semiautomatic firearm on the ground inside the bank parking lot, at the location where the defendant had increased his speed. At 10:06 P . M ., an officer took a photograph of the firearm using a thermal imager. The image showed that the firearm was warmer than the pavement. A second recorded image taken ten minutes later revealed that the firearm was still warm, but had lost heat.

The defendant was transported to the police station where he gave a recorded statement. He denied knowing Cooper or being involved in the shooting. The theory of his defense was that he was not involved in the shooting and ran, like everyone else at the bus station, because he was scared that someone was shooting at him.

Discussion. 1. The stop. Before trial, the defendant moved to suppress the drugs and firearm that were recovered along his path of flight, asserting that Coriano and Columbo lacked reasonable suspicion to stop him. Following an evidentiary hearing, a judge other than the trial judge (motion judge) found, in a comprehensive written decision, that the defendant and Cooper were the only people running from the scene of the shooting, that the defendant and Cooper were running together, and that Cooper was holding a firearm. The motion judge concluded that the officers had reasonable suspicion to stop and detain the defendant in connection with their investigation into gunshots, and he further concluded that the defendant, having abandoned the firearm, lacked standing to challenge its seizure.³ On appeal, the defendant claims that the motion judge's finding that he and Cooper were the only people running from the scene was clearly erroneous and argues that his legal conclusions were not supported by the evidence.

We adopt the motion judge's subsidiary findings of fact absent clear error and "independently determine the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Catanzaro, 441 Mass. 46, 50, 803 N.E.2d 287 (2004). Bearing in mind that "the clear error standard is a ‘very limited form of review,’ " wherein we defer to the findings of the motion judge who heard the testimony and observed the witnesses, Commonwealth v. Sanna, 424 Mass. 92, 97, 674 N.E.2d 1067 (1997), quoting Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990), we discern no error in the motion judge's finding that the defendant and Cooper were the only people running from the scene. Coriano so testified at the evidentiary hearing.

Although the motion judge did not explicitly find at what point the seizure occurred, the parties agree that the defendant was seized when Columbo ordered him to the ground at gunpoint. We agree with the motion judge that, at that time, specific, articulable facts established an individualized suspicion that the defendant was involved in the shooting.⁴ See Commonwealth v. Meneus, 476 Mass. 231, 235, 66 N.E.3d 1019 (2017) ; Commonwealth v. Warren, 475 Mass. 530, 534, 58 N.E.3d 333 (2016).

The motion judge found that Coriano and Columbo responded within seconds of hearing gunshots and were confronted by the defendant and Cooper, the only people fleeing from the scene, running in their direction. Coriano could see that Cooper was armed, and that the defendant was running with him. Where, as here, "there may be an ‘imminent threat’ presented ‘because of shots just fired, ... there is an edge added to the calculus upon which ... reasonable suspicion may be determined.’ " Commonwealth v. Ancrum, 65 Mass. App. Ct. 647, 654, 843 N.E.2d 110 (2006), quoting Commonwealth v. Doocey, 56 Mass. App. Ct. 550, 557 & n.12, 778 N.E.2d 1023 (2002). "Specifically, the ‘test for determining reasonable suspicion should include consideration of the possibility of the possession of a gun, and the government's need for prompt investigation.’ " Commonwealth v. McKoy, 83 Mass. App. Ct. 309, 312, 983 N.E.2d 719 (2013), quoting Commonwealth v. Stoute, 422 Mass. 782, 791, 665 N.E.2d 93 (1996). Bearing this principle in mind, and considering the nature of the crime, the defendant's proximity to the crime scene, and his flight from the scene with a person who was visibly armed, we conclude there was reasonable suspicion to stop him. See McKoy, supra at 313, 983 N.E.2d 719. Accordingly, the motion to suppress was properly denied.

2. Proof of intent. Next, the defendant claims that the Commonwealth presented insufficient evidence that he knowingly participated in the murder with the intent required for that offense. See Commonwealth v. Zanetti, 454 Mass. 449, 467-468, 910 N.E.2d 869 (2009). Specifically, he claims that there was no evidence that he intended to shoot the victim or that he intended for Cooper to do so. We disagree.

"Murder in the second degree is an unlawful killing with malice aforethought; malice includes any intent to inflict injury on another without legal excuse or palliation." Commonwealth v. Casale, 381 Mass. 167, 171-172, 408 N.E.2d 841 (1980). Although it is undisputed that the defendant did not shoot the victim, the jury could reasonably infer that the defendant intended to inflict injury on the victim from the surveillance video, which shows him removing his hand from his pocket, raising his arm in the direction of the victim, and stepping forward. The defendant then lowered his arm as Cooper fired two shots. In addition, an eyewitness reported that after the shots were fired, he saw the defendant put a gun into his pocket. This evidence was sufficient to prove...