Commonwealth v. Bonner

• Decision Date: 07 March 2022
• Docket Number: SJC-12721
• Citation: 489 Mass. 268,182 N.E.3d 311
• Parties: COMMONWEALTH v. Omar BONNER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

489 Mass. 268

182 N.E.3d 311

COMMONWEALTH

v.Omar BONNER.

SJC-12721

Supreme Judicial Court of Massachusetts, Suffolk.

Argued October 8, 2021

Decided March 7, 2022

Robert F. Shaw, Jr., Cambridge, for the defendant.

Darcy A. Jordan, Assistant District Attorney (Ian Polumbaum, Assistant District Attorney, also present) for the Commonwealth.

Present: Budd, C.J., Gaziano, Cypher, Kafker, & Georges, JJ.

GAZIANO, J.

On December 14, 2013, Romeo McCubbin was shot and killed after attending a music performance at a Boston nightclub. The shooting, which occurred on a nearby side street, was captured by surveillance cameras attached to a local residence. The video footage revealed that two individuals separately shot the victim less than one minute apart, one shooting while the victim was sitting in a parked vehicle and the second while the victim was lying on the sidewalk mortally wounded. A grand jury returned indictments charging four men thought to have been accomplices with murder in the first degree. The grand jury also indicted the defendant on one count of unlawful possession of a firearm and one count of resisting arrest. At trial against the four codefendants, the Commonwealth proceeded on a theory that the defendant was liable for the victim's death as an accomplice to the second shooter. In June of 2016, at the first trial, the jury were unable to reach a verdict on the charge of murder against the defendant, but convicted him of the firearm offense and of resisting arrest. At a subsequent joint trial with the other three codefendants in May of 2017, a second jury convicted the defendant of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.¹

In this direct appeal, the defendant contends that the evidence was insufficient to sustain his murder conviction. He argues also that a new trial is warranted because of erroneous accomplice liability instructions. The defendant next challenges the sufficiency of evidence introduced in the first trial that he unlawfully possessed a firearm, and the judge's decision, in the second trial, to preclude the defendant from contesting that point on estoppel grounds. Finally, the defendant asks this court to exercise its extraordinary authority pursuant to G. L. c. 278, § 33E, and to grant him a new trial or to reduce the conviction to a lesser degree of guilt. Having carefully examined the record and considered the defendant's arguments, we conclude that there is no reversible error and find no reason to disturb the verdict.

1. Facts. We summarize the facts that the jury could have found, viewing them in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979). a. Evening of the shooting. On the evening of December 13, 2013, the victim attended a music performance at a nightclub on Blue Hill Avenue. The victim drove his brother and his girlfriend, among others, to the event in a Ford Explorer, and he parked around the corner from the venue.

The defendant, Denton, Robertson, and Watson attended the same performance. The defendant had borrowed his sister's silver Toyota RAV4 to drive to the event. Watson drove a red Lincoln MKX that had been rented by his girlfriend the evening before, and that had been given to Watson that day.

There was no dispute that the four codefendants knew each other, and multiple pieces of evidence were introduced to support their close ties. An event photograph depicted three of the men -- the defendant, Denton, and Robertson -- standing near one another. The defendant is depicted in the photographs wearing a bright red shirt, matching bright red pants, a red hat with a pom-pom on top, and a plaid scarf. Denton is seen wearing a black wool hat and a maroon V-neck sweater over a white shirt. Robertson appears to be wearing a hat and, in some photographs, to be concealing his face with a dark scarf.

The Commonwealth also introduced cellular telephone records showing the defendant, Denton, Robertson, and Watson sending text messages to each other, as well as placing calls, in the month leading up to the shooting and within minutes of the shooting. Indeed, the defendant's mother and sister both characterized Denton as a close family friend. In addition, crime scene investigators found fingerprints that were matched to all four men inside and outside the recently rented (and cleaned) MKX.

After the show, the victim went outside, presumably to retrieve his vehicle, but he did not return to the club to pick up his brother and his girlfriend.²

The shooting was captured by surveillance cameras mounted to the exterior of a residence on a residential street that intersected Blue Hill Avenue near the nightclub. The video footage depicts two sport utility vehicles (SUVs), consistent with a Lincoln MKX and a Toyota RAV4, being driven down the street together, with the MKX in the lead. The street is a one-way residential street; traffic flows west to east from Morton Street to Blue Hill Avenue. The drivers and the occupants (if any) of the SUVs are not visible in the video footage. Approximately three minutes later, the victim's vehicle is seen being driven down the street and parallel parking into a space in front of the residence.

As the victim is finishing parking, an individual alleged to be Robertson runs into view from the direction of Morton Street.³ The individual approaches the driver's side of the Explorer and fires multiple rounds through the front window on the driver's side. The SUV lurches forward, striking a pickup truck. Another vehicle, alleged to be the Lincoln MKX driven by Watson, immediately pulls up alongside the Explorer, the shooter gets in, and the vehicle speeds away. The victim somehow manages to move across the seat, open the front passenger's side door, fall to the curb, and move a few feet along the sidewalk on his stomach, toward the rear of the vehicle. The MKX continues to Blue Hill Avenue and turns right. According to the Boston police department's ShotSpotter system,⁴ the volley was fired at precisely 1:45:00 A.M. The next shooting, as detected by the ShotSpotter system, occurred forty seconds later, at 1:45:40 A.M. Video footage taken from the home security system depicts the following events.⁵

After the MKX speeds off, the victim lies wounded on the sidewalk near the passenger's side of the Explorer, with his feet moving. At 1:53:57 A.M. , an individual alleged to be Denton runs down the sidewalk from the direction of Blue Hill Avenue (and the nightclub) toward the victim. The individual hurriedly crosses the street at a diagonal, glancing over his shoulder toward the intersection with Blue Hill Avenue. At 1:54:03 to 1:54:04 A.M. , the individual, brandishing a handgun, approaches the victim from the driver's side rear of the Explorer. At 1:54:05 A.M. , the individual stands above the victim. At that moment, another individual, alleged to be the defendant, walks down the street and into the camera's view from the direction of Blue Hill Avenue. A second later, the man standing over the victim takes a few steps backward, squares his body into a shooting stance, and levels the gun at the victim, but the gun does not fire. At that point, the individual alleged to be the defendant is standing on the opposite sidewalk, looking at the shooter and moving in the shooter's direction.

Between 1:54:07 and 1:54:10 A.M. , the shooter appears to "rack" the slide of the gun. He once again aims it at the victim as the other individual walks across the street to join him. At 1:54:11 to 1:54:12 A.M. , the shooter fires four rounds at the victim in rapid succession. As the gunfire erupts, the individual alleged to be the defendant is in the middle of the street moving toward the shooter. The second shooter continues to point the gun at the victim for two more seconds, but no further shots are fired. By that time, the other individual, assertedly the defendant, is standing next to the shooter at the rear of the Explorer. From 1:54:14 to 1:54:15 A.M. , the shooter steps away from the victim; the other man exchanges places with him and kicks the victim in the head. During the next three seconds, the two men, with the shooter in the lead, cross the street and run toward Blue Hill Avenue. Police arrive at 1:55:34 A.M.

A resident of the house with the security camera was awoken at around 1:45 A.M. by four or five gunshots. He then heard what he thought was the sound of something bumping into his parked pickup truck. He looked out the second-floor window and saw the victim roll out of the passenger's side of the Explorer and collapse to the ground. The witness then observed "two guys coming down the street" from the direction of Blue Hill Avenue. One of the men, by inference Denton, "did a motion with a handgun ... like a reset," and pointed the gun at the victim on the ground. The witness heard more gunfire. He also saw the second individual, by inference the defendant, kick the victim. The defendant exclaimed, in a voice loud enough for the witness to hear, "dirty mother fucker." On cross-examination, the witness explained that he believed the defendant had kicked an unresponsive, and presumably lifeless, body. He saw the shooter and the other man turn around and run down the street toward Blue Hill Avenue.

b. Police investigation and forensic evidence. Another neighbor called 911 to report the shooting. By that time, police had received ShotSpotter alerts of two separate shootings in the vicinity. Police responded to the scene and found the victim lying face up on the sidewalk next to the bullet-ridden Explorer. Police found ten nine millimeter shell casings on the ground near the Explorer and four discharged projectiles inside the vehicle. These had been fired from the same weapon used to shoot the victim. The nine millimeter weapon itself was never found. Police also recovered four .380 shell casings and three live rounds of .380 caliber ammunition...