Commonwealth v. Colas

• Decision Date: 22 February 2021
• Docket Number: SJC-12701
• Citation: 162 N.E.3d 1192,486 Mass. 831
• Parties: COMMONWEALTH v. Wesson COLAS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

486 Mass. 831

162 N.E.3d 1192

COMMONWEALTH

v.Wesson COLAS.

SJC-12701

Supreme Judicial Court of Massachusetts, Suffolk..

Argued September 14, 2020.

Decided February 22, 2021.

Esther J. Horwich for the defendant.

Cailin M. Campbell, Assistant District Attorney (Mark T. Lee, Assistant District Attorney, also present) for the Commonwealth.

Present: Lenk, Gaziano, Cypher, & Kafker, JJ.¹

GAZIANO, J.

The defendant was convicted of murder in the first degree on a theory of deliberate premeditation in the shooting death of Dawn Jaffier, as well as armed assault with intent to murder and assault and battery by means of a dangerous weapon in connection with the nonfatal shooting of Lealah Fulton. At trial, the Commonwealth alleged that the defendant and a companion had been involved in an altercation with a group of young men inside a convenience store. The dispute continued outside the store, where the defendant's companion argued with the others, while the defendant left to retrieve a handgun. According to the Commonwealth, the defendant then pointed the handgun at the rival group, and one of them, codefendant Keith Williams, fired multiple rounds at the defendant. Williams missed the defendant, but two of the bullets struck Jaffier and Fulton. Although the defendant himself did not fire a shot, the Commonwealth proceeded on a theory that the defendant had initiated a gunfight with Williams with the intent to kill and therefore was liable for the harm to the innocent bystanders. See Commonwealth v. Santiago, 425 Mass. 491, 503-504, 681 N.E.2d 1205 (1997), S.C., 427 Mass. 298, 693 N.E.2d 127 and 428 Mass. 39, 697 N.E.2d 979, cert. denied, 525 U.S. 1003, 119 S.Ct. 514, 142 L.Ed.2d 426 (1998).²

In this direct appeal, the defendant raises a number of asserted errors at trial. He argues that the Commonwealth failed to introduce sufficient evidence to support his convictions of murder in the first degree, armed assault with intent to murder, and assault and battery by means of a dangerous weapon.³ In addition, he challenges certain of the jury instructions, arguing in particular that the jury should not have been informed that they could draw an inference of an intent to kill from the use of a dangerous weapon. The defendant also contends that he is entitled to a new trial because of impermissible statements in the prosecutor's closing argument, and that trial counsel was ineffective for failing to object to portions of that argument, failing to object to certain testimony, and failing adequately to contest the sufficiency of the evidence. Finally, the defendant asks us to exercise our extraordinary authority under G. L. c. 278, § 33E, and to grant him a new trial or to reduce the conviction of murder to a lesser degree of guilt.

For the reasons that follow, we conclude that the verdicts of murder in the first degree and armed assault with the intent to murder cannot stand, but we affirm the conviction of assault and battery by means of a dangerous weapon. The matter shall be remanded to the Superior Court for a new trial on the charge of murder in the second degree.

1. Background. We recite the facts the jury could have found, in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), reserving some details for later discussion.

In the morning of August 23, 2014, a crowd gathered on Blue Hill Avenue in the Dorchester section of Boston to watch a parade. The defendant and a companion, Tevan Williams, were among the crowd.⁴ The defendant was wearing a dark hooded sweatshirt and a visible gold chain. Tevan was dressed in a blue sweatshirt with the words "Blue Hill" printed on the front. Williams also was present, along with others, including Jordan Reed and Brian Joyce. Williams was wearing a distinctive blue "Ninja Turtles" T-shirt and blue shorts. All of the men were hanging out near a Blue Hill Avenue convenience store.⁵

The defendant and Tevan entered the store at approximately 8:20 A.M. , followed a few minutes later by Reed and Joyce.⁶ The defendant and Tevan exchanged "looks" and "stares" with Reed, Joyce, and another customer. While no words were spoken, this behavior created "a lot of tension in the store" during the brief encounter.

At 8:22 A.M. , the defendant and Tevan left the store, followed by Reed and Joyce. The defendant walked away for a moment, while Tevan remained outside the store, drinking a soda. Joyce and Reed paused, turned toward Tevan, glared, and exchanged "aggressive" words with him. Williams and his group then headed towards McLellan Street. The defendant rejoined Tevan on Blue Hill Avenue, and the two began walking in the direction of Williams and his group.

Three witnesses observed the defendant during the ensuing altercation, and saw him produce a handgun from his waistband. The first witness, an off-duty Boston police detective, Arthur Hall-Brewster, had been waiting for the barbershop next to the convenience store to open. He stood on the sidewalk, against a wall, and intently watched the group of young men gathered nearby. The defendant passed by on the sidewalk within a few inches of Hall-Brewster. Hall-Brewster noticed that the defendant kept his fingertips flat against his stomach inside his belt. Watching the defendant from behind, Hall-Brewster observed him pull an object from his waist while continuing towards McLellan Street. At first, the detective thought that the shiny object the defendant had pulled from his waistband might be a knife. As the defendant turned, Hall-Brewster saw that the defendant was holding a silver handgun with a five-inch long barrel. The defendant kept the weapon by his side as he faced a group of four to five men who had gathered on the sidewalk and the street. Hall-Brewster did not see him raise or aim the firearm.

The second witness, Troy Souto, who lived nearby, was outside with his teenaged son to watch the parade. After Souto noticed a group of men, who had been inside the convenience store, arguing on the street near the corner of the barbershop, he ordered his son to return home. Souto then saw the defendant produce a handgun from the back of his pants. Souto was unable to describe the weapon, but was certain that the defendant did not point or fire it.

The third witness, Michael Turner, entered the convenience store at the same time as Reed and Joyce. While purchasing a drink, Tevan twice bumped into Turner and "stared him down." Although no words were exchanged, Turner felt that there was "a lot of tension in the store." To avoid any involvement in a potentially escalating situation, Turner waited for the men to go before he left the store. The hostilities between the two groups of men continued on Blue Hill Avenue. In particular, Turner saw Tevan arguing with Reed and others in that group.

Turner then noticed the defendant and Tevan walking down the street behind him. Turner overheard Tevan tell the defendant, "Just keep calm, this will all be over in a second." Turner turned around when he heard a commotion, and ended up facing the defendant. He saw the defendant, who was holding a "pistol" by his side, raise it and point it in the direction of McLellan Street (which was also in the direction toward where Turner was standing). Turner described the weapon as "long" and "dark." He froze for a moment, before he turned and ran to the middle of the street, and then continued running home; he heard shots fired from a distance.

After the initial altercation, Williams, Reed, and Joyce left the area in front of the convenience store and gathered near the corner of Blue Hill Avenue and McLellan Street. The largest man in the group (by inference, Williams) was holding a firearm. One of the men in Williams's group yelled "blast them, blast them," or words to that effect. Williams then fired four or five shots at the defendant, who was farther along Blue Hill Avenue.

The defendant was not hit, but one of the bullets struck and killed a bystander, Jaffier. Jaffier had been walking across the intersection of Blue Hill Avenue and Charlotte Street with two friends when gunfire erupted and she fell to the ground. She had been shot in the head. Another bullet struck Fulton, who had been watching the parade from a median strip near American Legion Highway, in the leg.

A neighborhood resident heard the shots and looked out her third-floor window. Her house was approximately 500 feet from the intersection of Blue Hill Avenue and McLellan Street. She saw three men walking down the street acting "nervous." She described one of the men, who was wearing a blue shirt and shorts (by inference, Williams), as "fat, heavyset," and the other two as "skinny." One of the skinny men, dressed in a white shirt and black pants, said, "Get rid of it. They're coming." The fat man rummaged through bushes and dropped something near the corner of the house across the street. Upon hearing police sirens, the men ran from the area.

Alerted by neighbors, the police searched the area and recovered a .357 revolver from under a porch. Tests later revealed that the revolver, which contained six empty shell casings, was the weapon that fired the shots that killed Jaffier and injured Fulton.

Police stopped and handcuffed three men -- Williams, Reed, and Joyce -- approximately one to two blocks away from the location where the firearm was found. Shortly thereafter, based on dispatches over the police radio describing the clothing worn by three suspects, they were brought to police headquarters.

2. Discussion. a. Sufficiency of the evidence of murder in the first degree. The defendant contends that there was insufficient evidence to convict him of murder in the first degree. His argument is premised on the Commonwealth's purported inability to establish that he either possessed an operable and loaded handgun, or pointed a handgun at Williams. In light of this argument, coupled with the undisputed fact that he never fired a round at Williams, the...