Commonwealth v. Clements

CourtAppeals Court of Massachusetts
Citation747 N.E.2d 682,51 Mass. App. Ct. 508
Docket NumberP-158
Parties(Mass.App.Ct. 2001) COMMONWEALTH vs. JASON CLEMENTS. 99-
Decision Date13 March 2000

747 N.E.2d 682 (Mass.App.Ct. 2001)

Appeals Court of Massachusetts
March 13, 2000.
May 10, 2001.

County: Suffolk.

Present: Armstrong, C.J., Brown, Porada, Dreben, & Duffly, JJ.1

Grand Jury. Practice, Criminal, Grand jury proceedings, Deliberation of jury. Evidence, Testimony before grand jury, Hearsay, Prior inconsistent statement, Identification, Joint enterprise, Relevancy and materiality. Identification. Joint Enterprise. Constitutional Law, Confrontation of witnesses.

Indictments found and returned in the Superior Court Department on December 17, 1996.

The cases were tried before Margot Botsford, J. , and a motion for a new trial was heard by her.

Rosemary Curran Scapicchio (Melissa D. Carter with her) for the defendant.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.


On January 30, 1995, Gregory Tillery was fatally shot on Harvard Street in the Dorchester section of Boston. At the crime scene, near the body, police found bullets and spent shell casings from both a nine millimeter and a .380 caliber weapon. The Commonwealth's theory of the crime was that the defendant and one Kenneth Mattox were the culprits. Both men were charged with murder, armed assault with intent to murder, and possession of a firearm without a license. After a joint trial, Mattox was acquitted on all charges, but the defendant was convicted of second degree murder as a joint venturer, of armed assault with intent to murder as a principal,2 and illegal possession of a firearm. In his appeal from his convictions and from the denial of his motion for a new trial, the defendant raises numerous claims, including: (1) it was error to admit the grand jury testimony of a witness, Sakoya Willis, as substantive evidence without meeting the requirements for such admission as set forth in Commonwealth v. Daye, 393 Mass. 55, 74-75 (1984); (2) the defendant's conviction of second degree murder as a joint venturer cannot stand in view of Mattox's acquittal of that charge; and (3) the judge committed several errors in regard to the jury's deliberations. We affirm the defendant's convictions.

1. Admissibility of grand jury testimony and sufficiency of identification evidence. Since the sufficiency of the evidence identifying the defendant as one of the assailants depends on the admissibility of the grand jury evidence of Sakoya Willis, the only known eyewitness to the shooting, we will first focus on that issue leaving other relevant facts to the discussion of the defendant's remaining claims.

At trial, Willis, a friend of Gregory Tillery, testified as follows. In January, 1995, Willis "hung out" and sold drugs with Tillery on Harvard Street. Other persons also sold drugs in the same area, including the defendant and Mattox, who were often together. Willis had known the defendant since childhood, but at the time of the incident some problems had arisen between him and the defendant.3 On the afternoon of the fatal shooting, Willis, Tillery, the defendant, and Mattox spent considerable time on Harvard Street. At one point the defendant and Willis exchanged certain "looks," and the defendant left the scene. Soon thereafter, Mattox walked by Willis and Tillery singing a portion of "Scar Face," a song which Willis knew was about a "guy's best friend dying." After hearing the verse, Willis and Tillery moved away from Mattox along Harvard Street in the direction of Greenwood Street.

Later that evening, at about six o'clock, while Willis was standing near the corner of Harvard Street and Greenwood Street with Tillery next to him on a bike, somebody started shooting at them from Harvard Street at a distance of about ten feet. Willis did not recognize the attacker, a male whom he described as being about six feet tall, wearing a "hoodie," and holding what looked like a silver .380 caliber automatic.

Upon hearing the shots -- approximately four in number -- Willis ducked behind a car but was pursued by the attacker. When the shooting stopped, he turned around and saw the attacker about ten feet behind him on Harvard Street. He appeared to be cocking his gun trying to unjam it. A "couple of seconds" after Willis saw his pursuer, he heard four or five more gunshots. He then ran home via Standish Street,4 crossing a railroad bridge. From the top of the bridge he saw two people running but could not identify them.

When pressed by the prosecutor, Willis acknowledged that prior to trial, at a police station on March 9, 1995, he had, at the behest of Tillery's family, identified the defendant as the assailant from an array of eight photographs, and had dated and signed his name on the back of the photograph. He also acknowledged that he had given a taped statement to the police and that he had identified the defendant as the shooter when he testified before the grand jury in November, 1996. Willis admitted that his memory was better at the time he had spoken to the police and made the identification. At that time he thought it was the defendant who started shooting at him and the victim. He thought he was telling the truth both when he went to the police in March and when he subsequently testified to the same effect before the grand jury in November, 1996. He stated, "Originally, I thought it was Mr. Clements; but I'm not absolutely sure. It was dark."

Although Willis testified that he did not see anyone with the defendant, when confronted with his grand jury testimony, he acknowledged that he had testified before the grand jury that Mattox had been with the defendant at the time of the shooting, and that from the railroad bridge he had seen the defendant and Mattox running down Standish and taking a right on a street parallel to Harvard Street.

The photograph of the defendant, acknowledged by Willis as having been identified by him as the assailant, was admitted as an exhibit at trial. See Commonwealth v. Daye, 393 Mass. at 61 & n.9. See also Proposed Mass.R.Evid. 801(d)(1)(C).

At the conclusion of Willis's testimony, over objection, the judge permitted the Commonwealth to read to the jury excerpts of Willis's grand jury testimony that were inconsistent with his testimony at trial.5

The jury were instructed that they could treat the grand jury testimony as substantive evidence.

We turn to the pivotal case of Commonwealth v. Daye, 393 Mass. 55 (1984). Before that decision, "prior inconsistent statements [including grand jury testimony under oath], though admissible for the limited purpose of impeaching the credibility of a witness's testimony at trial, [were] inadmissible hearsay when offered to establish the truth of the matters asserted." Id. at 66. In Daye, the Supreme Judicial Court altered the traditional rule but imposed certain limitations. It summarized its decision as follows:"[W]e hold that a prior inconsistent statement is admissible as probative if made under oath before a grand jury, provided the witness can be effectively cross-examined as to the accuracy of the statement, the statement was not coerced and was more than a mere confirmation or denial of an allegation by the interrogator, and other evidence tending to prove the issue is presented."

Id. at 75.

Daye also recognized that, apart from the issue of admissibility, there is a separate question whether the evidence, viewed as a whole, is sufficient for the Commonwealth to meet its burden of proof. In Daye, where, as here, the grand jury testimony related to the central issue of identification, the court noted:

"[W]e will not permit convictions based exclusively on inconsistent extrajudicial testimony to stand. See California v. Green, [399 U.S. 149,] 170 & n.19 [1970]. In this case the Commonwealth must produce identification evidence in addition to a prior inconsistent statement in order to meet its burden of proof."6

Id. at 74.

More recently, in Commonwealth v. Sineiro, 432 Mass. 735 (2000), the court, after reiterating the conditions for admission set by Daye, explained that when the grand jury testimony concerns a central issue of the case, corroboration relates not only to the question of admissibility but also to that of sufficiency. This is implicit in the following excerpt from Sineiro at 741-742:

"In Daye, we held that prior inconsistent testimony by a witness before a grand jury, under certain conditions, could be admitted as substantive evidence. [393 Mass.] at 75. In so holding, we adopted the principles of Proposed Mass. R. Evid. 801 (d)(1)(A). We set forth three general requirements for the use of such grand jury testimony: (1) there must exist an opportunity for effective cross-examination of the witness at trial; (2) the witness's statement must clearly be that of the witness, rather than the interrogator, and be free from coercion; and (3) some corroborative evidence must be presented. See id. at 73-75. See also Commonwealth v. Berrio, 407 Mass. 37, 45 (1990). With reference to corroboration, we held in Commonwealth v. Noble, 417 Mass. 341 (1994), that, when the prior inconsistent grand jury testimony concerns an essential element of the crime, the Commonwealth must offer at least some additional evidence on that element in order to support a conclusion of guilt beyond a reasonable doubt. Id. at 345 (adopting test set forth in United States v. Orrico, 599 F.2d 113, 119 [6th Cir. 1979]).[7] The additional evidence, however, need not be sufficient in itself to establish a factual basis for each element of the crime. Id. at 345 n.3." (Emphasis supplied.)

We consider that the requirements of Daye both as to admissibility and sufficiency have here been met. The first two requirements of admissibility need not detain us. Although the defendant argues that Willis was unavailable for cross-examination as to the accuracy of his grand jury statements because portions were read to the jury after Willis left the stand, the claim is without merit. Not only did the defendant fail to...

To continue reading

Request your trial
20 cases
  • Com. v. Medeiros, 07-P-418.
    • United States
    • Appeals Court of Massachusetts
    • 26 January 2009 either"). The defendant's argument, though, ultimately is foreclosed by our more recent decision in Commonwealth v. Clements, 51 Mass.App.Ct. 508, 747 N.E.2d 682 (2001), S.C., 436 Mass. 190, 763 N.E.2d 55 (2002).4 In Clements, the defendant was convicted of murder in the second degree as......
  • Clements v. Clarke, Civil Action No. 03-10377-GAO.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 31 March 2009
    ...2 (D.Mass.2005) (Clements III); Commonwealth v. Clements, 436 Mass. 190, 763 N.E.2d 55 (2002) (Clements II); Commonwealth v. Clements, 51 Mass.App.Ct. 508, 747 N.E.2d 682 (2001) (Clements The petition presents two claims, each arising under the Sixth Amendment to the United States Constitut......
  • Commonwealth v. Brown
    • United States
    • United States State Supreme Court of Pennsylvania
    • 21 August 2012
    ...242 Mont. 265, 790 P.2d 455, 463 (1990); State v. Ramsey, 782 P.2d 480, 483–484 (Utah 1989)(plurality); Commonwealth v. Clements, 51 Mass.App.Ct. 508, 747 N.E.2d 682 (2001), aff'd Commonwealth v. Clements, 436 Mass. 190, 763 N.E.2d 55 (2002). 18. In his Concurring and Dissenting Opinion, Ch......
  • Com. v. Zanetti, SJC-09995
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 3 August 2009
    ...482, 486, 524 N.E.2d 67 (1988); Commonwealth v. Gonzalez, 68 Mass.App.Ct. 91, 93, 860 N.E.2d 37 (2007); Commonwealth v. Clements, 51 Mass.App.Ct. 508, 536, 747 N.E.2d 682 (2001), S.C., 436 Mass. 190, 763 N.E.2d 55 (2002); Commonwealth v. Lee, 43 Mass.App.Ct. 164, 167, 681 N.E.2d 888 (1997);......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT