Commonwealth v. Evans

• Citation: 439 Mass. 184,786 NE 2d 375
• Parties: COMMONWEALTH v. JIMMY EVANS (and seven companion cases).
• Decision Date: 16 April 2003
• Court: United States State Supreme Judicial Court of Massachusetts

439 Mass. 184

786 NE 2d 375

COMMONWEALTH v. JIMMY EVANS (and seven companion cases¹).

Supreme Judicial Court of Massachusetts, Suffolk.

January 10, 2003.

April 16, 2003.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, & SOSMAN, JJ.

Michael R. Schneider for Jimmy Evans.

Emanuel Howard for John Evans.

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

SPINA, J.

The defendants, brothers John Evans (John) and Jimmy Evans (Jimmy), were convicted of murder in the first degree on theories of extreme atrocity or cruelty and of deliberate premeditation, and illegal possession of handguns (G. L. c. 269, § 10 [a]), and ammunition (G. L. c. 269, § 10 [h]). John was also convicted of assault by means of a dangerous weapon, discharging a firearm within 500 feet of a building (G. L. c. 269, § 12E), and a number of motor vehicle and weapons violations.² Both defendants filed motions for a new trial, and motions for funds for an investigator as to claims raised in their motions for a new trial. A judge in the Superior Court (not the trial judge) denied both postconviction motions without an evidentiary hearing. On appeal the defendants claim error in various evidentiary rulings, prosecutorial misconduct during closing argument and during the cross-examination of Jimmy, ineffective assistance of counsel, and error in the denial of their motions for a new trial and for postconviction funds to investigate. We affirm the convictions and decline to exercise our power under G. L. c. 278, § 33E, to order a new trial or reduce the convictions.

1. Background. The jury could have found the following facts. At about midnight on January 24, 1995, the victim, Lyle Jackson, went to Cortee's, a nightclub in the Dorchester

neighborhood of Boston, where he met a friend, Marcello Holliday. The defendants were at the same nightclub with two friends, Robert Brown and Ronald Tinsley. At approximately 1:45 A.M. on January 25, the victim, Holliday, and another friend left to go to a nearby fast food restaurant, Walaikum's. As they were in their car preparing to leave, John ran past their car and fired a handgun three or four times at a group of people on the other side of the street.

The victim, Holliday, and their friend arrived at Walaikum's at approximately 2:20 A.M. The restaurant, which occupies a small space, was crowded with customers. About fifteen minutes later the defendants and their two companions entered the restaurant, looked around for about one minute or so, and walked out. Less than one minute later, they reentered. Tinsley talked with a girl standing behind Holliday, and the other three remained near the door. Brown said to the defendants, "That's one of them right there." Jimmy asked, "Is that him right there?" Brown said, "Yeah." Jimmy then produced a silver handgun with a black handle. John was standing right beside him. Jimmy walked toward the victim, who, seeing him approach with a gun drawn, began to back away. Holliday ran outside. The victim fell over some chairs and tables as he backed away, then crawled into a corner and begged Jimmy for his life. Jimmy shot at him four or five times.

Alton Clarke, a patron of the restaurant, tried to leave but was confronted by John, who was armed with a black handgun. Clarke was allowed to leave after he said he had nothing to do with the victim. John then approached the victim and fired a shot at him. Clarke heard the shot from just outside the restaurant and said it sounded different from the shots he heard when he was inside. Willy Wiggins, who owned Walaikum's, saw the first gunman shooting at the victim, then went to the back of the restaurant to telephone the police.

The defendants, Brown, and Tinsley fled the scene in a gold Lexus automobile. John drove, Jimmy sat in the front passenger seat, and the other two sat in the back. Police arrived and pursued them. At one point a marked police cruiser with its blue lights flashing was forced off the road to avoid a head-on collision with the Lexus. During the chase two guns were thrown out of the front passenger window of the Lexus. The Lexus turned up a dead end street and stopped. The occupants were apprehended as they tried to flee on foot. The two guns thrown from the Lexus were recovered. One was a silver-plated nine millimeter Ruger semiautomatic handgun with a black handle. The other was a black nine millimeter Heckler & Koch semiautomatic handgun.

Ballistics evidence recovered from both inside and outside the restaurant included six shell casings (three from the Ruger, and three from the Heckler & Koch) and four bullet fragments (two from the Ruger and two from the Heckler & Koch, including a projectile removed from the victim's body). No identifiable fingerprints could be retrieved from either gun.

The victim died from an infection due to his wounds. He had been shot three times. One shot passed through his left forearm and into his ribs. Two shots entered the left side of his abdomen and passed through his body. A fourth was recovered from his body. The victim had no gunpowder residue on his clothes, indicating that he had been shot from a distance of at least three feet.

The four men were tried together on a theory of murder by joint venture. Both John and Jimmy testified, but neither Brown nor Tinsley testified. The jury found the defendants guilty, and acquitted Brown and Tinsley.

2. Evidentiary rulings.

(a) The defendants argue that their rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights to cross-examine a Commonwealth witness, Alton Clarke, with evidence of bias was impermissibly limited by a ruling that charges pending against him in Suffolk County, including aggravated rape and kidnapping (Commonwealth v. Clarke, 48 Mass. App. Ct. 482 [2000]), be described as "serious felony charges" during cross-examination without naming the specific crimes.

Where there is some evidence of bias, a defendant has a constitutional right to cross-examine a prosecution witness to show bias, but "the judge has broad discretion to determine the scope and extent of cross-examination." Commonwealth v. Jackson, 431 Mass. 535, 538 (2000). Although "it would ordinarily be helpful for the jurors to know the nature of the unresolved charges pending against a witness so that they will have some means of gauging the extent to which the witness may be biased[, m]uch must be left to the discretion of the trial judge in this area." Commonwealth v. Lewis, 12 Mass. App. Ct. 562, 573 n.20 (1981).

The defendants were able to explore adequately the question and extent of Clarke's bias and motive to cooperate with the prosecution arising from the pending "serious felony" charges without referring to the specific charge. Clarke testified emphatically that he was promised nothing and he expected nothing. Clarke in fact later went to trial and was convicted of aggravated rape and kidnapping. His convictions were reversed on appeal. See Commonwealth v. Clarke, supra. The defendants have failed to show how the limitation on cross-examination was an abuse of discretion.

(b) The Commonwealth called a witness, Marvette Neal, who testified that he knew the victim and the Evans brothers. He recalled seeing the victim at Cortee's on January 24, 1995, and later at Walaikum's. He could not remember whether he had seen the Evans brothers at either place that night or the next morning. Over objection, the judge permitted the prosecutor to introduce a portion of Neal's testimony before the grand jury as substantive evidence under the "past recollection recorded" exception to the hearsay rule. Neal had told the grand jury that he had seen the defendants inside Cortee's and inside Walaikum's on January 24 and 25.³

A writing may be admitted under the past recollection recorded exception to the hearsay rule if "(1) the witness has no revivable recollection of the subject, (2) the witness had firsthand knowledge of the facts recorded, (3) the witness can testify that the statement was truthful when made, and (4) the recording was made when the events were fresh in [his] memory." Commonwealth v. Nolan, 427 Mass. 541, 543 (1998). As to the fourth element of the foundation, where the recording was made by another, it must be shown that the witness adopted the writing "when the events were fresh in [the witness's] mind" (emphasis in original). Commonwealth v. Bookman, 386 Mass. 657, 664 (1982). See Commonwealth v. Fryar, 414 Mass. 732, 746 (1993),S.C., 425 Mass. 237, cert. denied, 522 U.S. 1033 (1997); P.J. Liacos, M.S. Brodin & M. Avery, Massachusetts Evidence § 8.17 (7th ed. 1999 & Supp. 2003). Here, there was evidence to satisfy the first three elements, but not the fourth. Neal had no recollection of what he had told the grand jury and there was no evidence that he adopted the minutes of his grand jury testimony when his memory of events was fresh. Commonwealth v. Fryar, supra. It was error to admit Neal's grand jury testimony as past recollection recorded.

The Commonwealth alternatively contends that Neal's grand jury testimony was admissible for substantive purposes under the rule of Commonwealth v. Sineiro, 432 Mass. 735, 741 (2000), in which we extended the principle of Commonwealth v. Daye, 393 Mass. 55, 75 (1984) (under certain conditions, acknowledged prior testimony of witness before grand jury that is inconsistent with his trial testimony may be admitted for substantive use), to instances where a witness falsely asserts a lack of memory of the event and a lack of memory of his prior testimony. Before a witness's grand jury testimony may be admitted under the Daye-Sineiro rule, the judge must make a preliminary finding that the witness's claimed lack of memory has been fabricated. If that finding is made and is supported by the evidence, it is conclusive. See Commonwealth v. Sineiro, supra at 742-743 & n.6. Here, the judge did not make a finding that...