Commonwealth v. Duke
| Decision Date | 11 May 2022 |
| Docket Number | SJC-12047 |
| Citation | 489 Mass. 649,186 N.E.3d 1223 |
| Parties | COMMONWEALTH v. Ashawnee DUKE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Angela G. Lehman, Somerville, for the defendant.
David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth.
Present: Budd, C.J., Gaziano, Lowy, Wendlandt, & Georges, JJ.
On December 2, 2012, the defendant and two accomplices attempted to rob Keshawn Dancy at gunpoint. Dancy fought back and got into a physical struggle with one of the robbers, Keogh Collins. Gunfire erupted, and Collins was fatally shot in the head; Dancy suffered a serious wound to the leg. At the defendant's trial in August of 2015 on charges of murder in the first degree and related offenses, the Commonwealth proceeded on the theory that the defendant had fired the rounds that struck Collins and Dancy. This contention was based, in large part, on the testimony of a third accomplice, getaway driver Julien Holly, who testified for the Commonwealth after entering into a cooperation agreement.
A Superior Court jury convicted the defendant of felony-murder in the first degree for the shooting death of Collins.1 The defendant thereafter filed a motion for postconviction discovery, followed by a motion for a new trial, based on the results of deoxyribonucleic acid (DNA) testing. The motion for a new trial was denied. In this consolidated appeal from his convictions and from the denial of his motion for a new trial, the defendant argues, among other things, that the conviction of felony-murder cannot stand because Collins, the defendant's accomplice, was killed during a struggle with the intended robbery victim, and the theory of felony-murder thus is inapplicable. See Commonwealth v. Tejeda, 473 Mass. 269, 279, 41 N.E.3d 721 (2015) ; Commonwealth v. Balliro, 349 Mass. 505, 515, 209 N.E.2d 308 (1965), S.C., 370 Mass. 585, 350 N.E.2d 702 (1976).
Having carefully examined the record and considered the defendant's arguments, we conclude that the felony-murder rule was applicable, the evidence was sufficient to support the convictions, and there was no error that would necessitate a new trial. Nor do we discern any reason to exercise our authority under G. L. c. 278, § 33E, to order a new trial or to reduce the conviction of murder to a lesser degree of guilt.
1. Facts. We summarize the facts that the jury could have found, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), and drawing all reasonable inferences therefrom, see Commonwealth v. Lao, 443 Mass. 770, 779, 824 N.E.2d 821 (2005), S.C., 450 Mass. 215, 877 N.E.2d 557 (2007) and 460 Mass. 12, 948 N.E.2d 1209 (2011).
a. Day of the shooting. On the afternoon of December 2, 2012, "best friends" Holly and Collins were driving around Chicopee and Springfield in Collins's 1999 green Nissan Altima. They, along with other individuals (not including the defendant), decided to rob a drug dealer known as "Biz." Collins was armed with a silver .380 caliber semiautomatic weapon. Due to defects in the feeding mechanism, the handgun had to be manually reloaded after each shot. Holly was armed with a .357 caliber revolver.
Holly lured Biz to the scene of the robbery under the guise of making a purchase of phencyclidine (PCP). When Biz got into the Altima, Holly pointed a gun at him, demanded he turn over drugs and a jacket, and then ordered him to get out of the vehicle. Intending to head back to Chicopee, Holly left his weapon at his house in Springfield because there was no longer any "need for [the] gun." Holly and Collins then drove around in the Altima, drinking alcohol and smoking marijuana mixed with the pilfered PCP.
A few hours after robbing Biz, Holly received a telephone call from the defendant. Holly knew the defendant from the neighborhood where they both lived and had seen him nearly every day during the preceding six months. The defendant generally called Holly using one of three different telephones: a landline, a cellular telephone registered to the defendant's mother, and the defendant's own cellular telephone.2 The defendant asked Holly about the robbery of Biz. He also asked Holly to find out whether Collins would be willing to drive to another robbery in exchange for money to buy gasoline and marijuana. Collins agreed to give the defendant a ride.
Collins picked up the defendant in his Altima and drove to a fast food restaurant. There, the defendant got out of the vehicle and placed a telephone call to the target of the robbery.3 The defendant also loaded a bullet into the chamber of a gun, which resembled a larger version of Collins's .380 caliber firearm. The defendant then got back into the Altima and instructed Collins to drive to a housing development in Springfield.
Collins parked the Altima near the entrance to the housing development, out of sight of the apartment where the intended robbery victim was visiting a relative. The defendant twice asked Holly to get out of the vehicle and join him in the robbery. Holly refused; he testified that he thought the extent of his role was to bring the others to the scene. The defendant then asked Collins for help in conducting the robbery. After some hesitation, Collins agreed. As instructed, Holly got into the driver's seat of the Altima to wait for the defendant and Collins, who walked away.
The two reappeared within ten to fifteen minutes. They told Holly to drive around the block and to back into a parking space with a view of one of the apartments. That apartment had been rented by Dancy's sister, and Dancy generally stopped by to check on it while his sister was away. While waiting for the defendant and Collins to "do whatever they [were] going to do," Holly smoked another cigarette and flicked the butt out the window. Holly testified that he smoked Newport cigarettes, which have a green stripe around the filter.4
At around 5:40 P.M. , Collins approached Dancy, who was on the front porch. Collins and the defendant spoke to Dancy, and Dancy passed an object to Collins, who smelled it. The defendant also smelled the object, and then handed it back to Dancy. At that point, Collins pulled out a firearm and pointed it at Dancy. Dancy struck Collins, grabbing his gun hand and, as Dancy described it, "hit[ting] him with everything I had." The two engaged in a "tussle," continuing to "fight" on the porch so intensely that they both fell down. Dancy heard shots and could not tell from where they were coming, but he assumed that the man he was fighting was the one who was shooting. Holly heard a loud pop. He did not see a muzzle flash and could not tell whether Collins had fired the shot. The defendant stepped back and pulled out his gun. Holly saw the defendant fire, and then saw Collins fall down the porch stairs.
Dancy testified that, during the fight, he focused on Collins -- his immediate threat, with whom he was fighting. The defendant moved around and, at one point, urged Collins, "[L]et's go, let's leave." Dancy then heard gunshots and felt Collins go limp; Dancy fell off the porch, tried to get up, and discovered that he had been shot in the leg. Dancy did not see the defendant produce a gun. He did see a muzzle flash, leading him to believe that the defendant had fired at him. Collins suffered a fatal gunshot wound to the head. There was no stippling or residue gun powder on the wound, indicating that the shot had been fired from a distance of more than eighteen inches. The shot to Dancy's leg resulted in a compound fracture.
Upon hearing the first gunshot, Holly started the Altima and pulled out into the road to wait for Collins and the defendant. The defendant got into the rear seat, and told Holly that Collins was dead. Holly drove away. A neighbor called 911; police and emergency medical technicians arrived on scene at 5:55 P.M.
Before police arrived, a witness who was inside a nearby apartment heard a loud crash, looked out the window, and saw a man collapse to the ground, try to get up, and fall again; initially she thought he was drunk. When the man started calling for help, the witness went outside and saw another man lying on the ground gasping for air; there was a small caliber, silver handgun on the ground next to him. The witness kicked the gun across the street, and later pointed it out to one of the investigating officers. When the officer secured the weapon, it had a live round in the chamber.
b. Investigation. A spent projectile was located on the front porch of the apartment building where Collins had fallen, and two discharged nine millimeter cartridge casings were found on the street and in the lawn in front of the building. A projectile also was recovered from Collins's head.
A State police ballistician testified that Collins's .380 pistol was found with a live round in the chamber. The bullet bore impressions from the firing pin that could have been caused by the weapon having been dropped or kicked without discharging the round. The projectile found on the front porch was consistent with .380 caliber ammunition. The projectile, however, was too damaged to compare its tool markings to try to determine which gun had fired it. The two nine millimeter cartridge casings found on the street and in the lawn had been fired from the same unknown weapon. The projectile recovered from Collins's body was consistent with a nine millimeter bullet. It was too large to have been fired from a .380 caliber gun.
Police questioned Holly on December 4, 2012, two days after the shootings. He told the detectives "some things" that had happened. To protect himself, he said that it was Collins's idea to commit the robbery, that he never saw the defendant with a firearm, and that he had been in the car waiting for Collins and the defendant, and he did not see the shootings. Two days later, on December 6, 2012, Holly was arrested. He then gave the officers a different version of events,...
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...homicide liability for the death of an individual killed by someone resisting a felony. See generally Commonwealth v. Duke, 489 Mass. 649, 656-657, 186 N.E.3d 1223 (2022), and cases cited.The defendant contends that the "clear" and "unambiguous" law that emerged from Campbell, 7 Allen at 54......