Commonwealth v Dyous

• Decision Date: 07 May 2002
• Docket Number: SJC-07129
• Citation: 436 Mass. 719
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH vs. CHARLES DYOUS. Docket No.:MASSACHUSETTS SUPREME COURT County: Plymouth

COMMONWEALTH

vs.

CHARLES DYOUS.

Docket No.: SJC-07129

MASSACHUSETTS SUPREME COURT

County: Plymouth.

January 11, 2002.

May 7, 2002.

Summary: Homicide. Practice, Criminal, Capital case, Grand jury proceedings, Witness, Instructions to jury, Assistance of counsel. Evidence, Joint venturer, Grand jury proceedings, Immunized witness, Credibility of witness. Grand Jury. Witness, Immunity, Credibility. Malice.

Indictment found and returned in the Superior Court Department on July 21, 1992.

The case was tried before James F. McHugh, III, J., and motions for a new trial, filed on December 15, 1997, and December 17, 1999, respectively, were heard by him.

John M. Thompson for the defendant.

John E. Bradley, Assistant District Attorney, for the Commonwealth.

Present: Marshall, C.J., Spina, Cowin, Sosman, & Cordy, JJ.

MARSHALL, C.J.

In November, 1994, the defendant was convicted of murder in the first degree on the theory of deliberate premeditation as a joint venturer. In December, 1997, represented by new counsel, the defendant filed a motion for a new trial, which was denied by the trial judge after a hearing. In December, 1999, represented by a third attorney, the defendant filed a second motion for a new trial, which was also denied by the trial judge. He now appeals from the jury verdict and from the denial of his motions for a new trial.

The defendant first challenges the integrity of the grand jury proceedings leading to his indictment. He next points to alleged errors concerning the admission of certain testimony of a key witness for the Commonwealth. Third, he takes issue with the judge's delay in not deciding to instruct on involuntary manslaughter until after defense counsel had made his closing argument. The defendant also takes exception to various instructions to the jury. Finally, he makes a claim of ineffective assistance of counsel (trial and first appellate counsel) stemming primarily from these same claims of error. We affirm the conviction and the orders denying the defendant's motions for a new trial. We conclude that there is no basis to grant relief under G. L. c. 278, § 33E.

1. Facts. Viewed in its light most favorable to the Commonwealth, the evidence is as follows. On the evening of November 2, 1991, the defendant and several friends attended a party in Brockton. At the party, Stephen Fernandes, Timothy Lucas, and the defendant, along with several others, formed a plan to kill the victim.¹ Fernandes stated that he was "sick" of the victim because of an incident some weeks earlier in which the victim had threatened him with a gun. Lucas agreed, and the defendant added that he was "sick of them bitches" and that he wanted to "go wet them up." According to an immunized witness, Jordan Martel Rice, who was present during this conversation, this meant to "kill" the victim. The defendant, Lucas, and Fernandes specifically mentioned the names of four persons they were going to shoot, among them the victim and a cousin of the victim. Several of the coventurers had guns, including the defendant, who had a.22 caliber revolver. Acting on their plan, the defendant and the others left the party at approximately 2 A.M. and drove to an apartment complex where the victim lived. Rice drove one of two automobiles, with the defendant sitting next to him and two other men in the back seat.² Rice saw that all three men had guns; he also heard noises from the back seat that sounded like guns being loaded. One of the passengers in the back seat suggested that care be taken not to leave any fingerprints on the bullets.

Arriving at the complex where the victim lived, the defendant spoke to the group about an escape route. Eight men (not including Rice) then entered the complex, five of whom, including the defendant, carried guns. The victim and his cousin were sitting in the victim's automobile, which was parked in front of the victim's apartment, engaged in conversation. The automobile was parked almost directly under a street light. The coventurers approached the automobile and opened fire from the driver's side, riddling the vehicle with bullets: at least twenty-one shots were fired. Ten hit the driver's side windows, clustered on the front window where the victim was sitting. The victim was hit four times -- three times in the torso and once in the elbow. He died from his wounds. Three.22 caliber bullets, consistent with having been fired from a revolver, were later recovered from the scene, one from the victim's automobile and two from the ground nearby. The victim's cousin, sitting on the passenger side of the automobile, was not hit by any gunfire.

The eight men returned to their waiting automobiles and drove away from the complex. In the automobile driven by Rice, he again saw that the defendant (sitting next to him) and the two other passengers carried guns. One back seat passenger said, "I had to get him, because I shot up the whole front windshield," to which the defendant added, "We had to get him, because we all shot." The other back seat passenger asked to whom the targeted automobile belonged, and the defendant replied that it belonged to the victim. The passenger then replied, "[The victim] got his, then."

The next afternoon, Rice was summoned to a meeting by one of the coventurers, at which the defendant admonished those involved in the incident: "No snitching." They discussed a story to tell the police, and what to do with their guns. Ultimately they decided to tell the police nothing, but to blame the shooting on others who had also attended the party.

2. Integrity of grand jury proceedings. In a pro se brief, see Commonwealth v. Moffett, 383 Mass. 201 (1981), the defendant renews his contention made at trial that the Commonwealth impaired the integrity of the grand jury proceedings by intentionally making a false and deceptive presentation of evidence.³ He challenges the judge's denial of a motion to dismiss the indictment on those same grounds. We affirm that decision.

A prosecutor may not intentionally withhold evidence that is likely to affect the grand jury's decision to indict, Commonwealth v. Connor, 392 Mass. 838, 854 (1984), for to do so impairs the integrity of the grand jury. See Commonwealth v. LaVelle, 414 Mass. 146, 150 (1993); Commonwealth v. Shea, 401 Mass. 731, 734 (1988). The defendant claims that the grand jury testimony of Rice (then immunized) was false and misleading, adding that the prosecutor deceptively withheld from the grand jurors an earlier statement made by Rice to the police, which the defendant claims was different in material respects from Rice's grand jury testimony.⁴ The defendant is correct that Rice did not, in his earlier statement, specify that the defendant was one of the coventurers who carried a gun. But he did not affirmatively tell the police that the defendant did not carry a gun. Rice's earlier statement did not contradict his grand jury testimony, nor did it exculpate the defendant.⁵ The prosecutor was not obliged to disclose the earlier statement. Commonwealth v. McGahee, 393 Mass. 743, 746-747 (1985).

Evidence that Rice initially had told the police that he had no knowledge of the coventurer's intent when they left the party would not likely have made a material difference to the grand jury's determination that there was probable cause to indict the defendant. See id. at 746-747. A jury found, beyond a reasonable doubt, that the defendant was guilty of murder in the first degree. They did so after Rice was subjected to a withering cross-examination on these issues. It is reasonable to assume that, if the grand jury -- seeking only probable cause -- had known about Rice's prior statement to the police, their decision to indict would not have been affected. See Commonwealth v. LaVelle, supra at 151 n.2.

3. Testimony of an immunized witness. The defendant identifies three claims of error regarding the trial testimony of Rice: (a) that the prosecutor and the judge improperly enhanced Rice's credibility on the stand; (b) that the prosecutor elicited testimony from Rice that he knew or should have known was false or materially misleading; and (c) that the judge erroneously allowed Rice to explain to the jury the meaning of the phrase "wet them up." The defendant did not object at trial to the first two issues, nor did he raise them in his first motion for a new trial; he did raise them in his second motion for a new trial, but the motion judge declined to address them on their merits.⁶ See Commonwealth v. Hallet, 427 Mass. 552, 554 (1998). Accordingly, we review these two claims to determine whether the error, if any, caused a substantial likelihood of a miscarriage of justice. Commonwealth v. Wright, 411 Mass. 678, 681 (1992). The defendant's third claim -- that Rice should not have been allowed to testify to the meaning of the term "wet them up" -- was preserved for appellate review by objection at trial. We review this claim for prejudicial error. Commonwealth v. Vinnie, 428 Mass. 161, 163, cert. denied, 525 U.S. 1007 (1998).

(a) The defendant's claim that the prosecutor and the judge improperly enhanced Rice's credibility on the stand is twofold: (i) that the prosecutor vouched for Rice's credibility by referring to the immunity hearing before a single justice of this court, and (ii) that the judge gave an erroneous statutory immunity instruction and failed to give a specific cautionary instruction regarding the testimony of immunized witnesses.

As to the first, in his opening statement to the jury the prosecutor said that Rice had been granted immunity by the Supreme Judicial Court. He subsequently elicited testimony of that fact from Rice: on redirect examination, Rice testified that he believed immunity meant he "[could] tell the truth without being prosecuted," and that, during the immunity hearing, the single justice informed him he could be prosecuted for perjury or contempt of court if he did not tell the truth. In his...