Commonwealth v. Fisher

• Decision Date: 03 October 2000
• Parties: COMMONWEALTH v. TAFFARI FISHER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

433 Mass. 340

742 NE 2d 61

COMMONWEALTH v. TAFFARI FISHER.

Supreme Judicial Court of Massachusetts, Essex.

October 3, 2000.

February 12, 2001.

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

John J. Barter (Jean M. Terranova with him) for the defendant.

Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.

SOSMAN, J.

A jury convicted the defendant of murder in the first degree and carrying a firearm without a license. On appeal, the defendant claims that numerous errors at trial warrant the reversal of his convictions and also requests relief pursuant to G. L. c. 278, § 33E. While this appeal was pending, the defendant filed a motion for postconviction relief, which we remanded to the Superior Court for disposition. The trial judge denied the motion, and the defendant's appeal from that order has been consolidated with his direct appeal. We affirm the defendant's convictions and decline to exercise our power under G. L. c. 278, § 33E.

1. Facts. We recite the facts in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with the issues raised. On October 15, 1997, at approximately 1 A.M., the defendant and his friend, Edward Walker, were at a 7-Eleven store on Essex Street in Lynn. Four other young people, Eric Cruz, Latoya Graham, Tranece Barnes, and Eric Daniels, were also at the 7-Eleven store at the same time. The store's surveillance videotape depicted the defendant staring at Cruz. When Cruz left the store and walked up Essex Street with his three companions, the defendant and Walker followed them. As they proceeded on Essex Street, Cruz was walking in front, with Daniels, Barnes, and Graham walking three abreast just a few feet behind him.

Once they had reached a dark, deserted stretch of the street, beyond the vicinity of the 7-Eleven store, Daniels heard a "clack" noise, which he recognized as the sound of a round being chambered in a semiautomatic weapon. He turned around, but saw nothing behind him except "a dark street." There was a car parked on the side of the street, and the jury could have inferred that the defendant and Walker were hiding behind the car at the time Daniels turned around. A live cartridge was later found on the street near the parked car. A ballistics expert testified that that cartridge came from the defendant's gun, and that, when tested, it failed to fire on three out of eight attempts. After a failed attempt to fire, one would have to pull the slide and reset it to engage the trigger again, a process that would eject the cartridge that had been in place at the time of the failed shot. From this evidence, the jury could have inferred that the defendant had attempted to shoot a round from his position behind the car, that the weapon had failed to fire, and that the defendant had pulled back the slide to chamber another round. After seeing no one behind him, Daniels turned and resumed walking. The defendant and Walker then came out from their hiding spot behind the car and walked up right behind Daniels. The defendant stepped on the back of Daniels's boot, whereupon Daniels turned around and saw the defendant and Walker about one and one-half feet away. Daniels asked the defendant what he was doing. Walker then told the defendant to give him the "strap," a slang term for gun. The defendant reached into the front of his pants, pulled out a gun, and pointed it at Daniels, inches from his forehead. Daniels then grabbed the gun, and he and the defendant struggled over it for a few seconds. During this brief struggle, the defendant's finger was on the trigger. The defendant "yanked" the gun back, and pulled the trigger. Graham, who was by then a little bit ahead of Daniels and a few feet behind Cruz, was struck in the head by a single bullet. She died at Lynn Hospital shortly thereafter.

The defendant was arrested later that morning. After being advised of his Miranda rights, the defendant made a statement to the police. The defendant stated, "I had a problem with the smaller dude. ... I had a beef with him over stuff he said."¹ According to the defendant, he followed Cruz out of the 7-Eleven store and down the street. He stated, "What was I going to do, pull the gun out in the store?" He pulled the gun out when he was about three feet from the group, at which point "[t]he taller one [Daniels] turned and grabbed the gun and it went off. I just shot. I did not move the slide first."

2. Sufficiency of the evidence. The Commonwealth proceeded on the theory that the defendant had planned and intended to kill Cruz, and relied on the doctrine of transferred intent to prove murder in the first degree for the shooting of Graham. The defendant argues that the evidence was insufficient to prove deliberate premeditation or a specific intent to kill Cruz. We conclude that there was sufficient evidence to support the jury's verdicts.

In reviewing a denial of a motion for a required finding of not guilty, we consider the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Cordle, 412 Mass. 172, 175 (1992). "The relevant question is whether the evidence would permit a jury to find guilt, not whether the evidence requires such a finding." Commonwealth v. Lydon, 413 Mass. 309, 312 (1992). The Commonwealth may rely on inferences drawn from the evidence, so long as those inferences are "reasonable and possible." Id. "To the extent that conflicting inferences are possible from the evidence, `it is for the jury to determine where the truth lies.'" Id., quoting Commonwealth v. Martino, 412 Mass. 267, 272 (1992).

The Commonwealth presented evidence that the defendant had a "problem" with Cruz and "had a beef with him over stuff he said." When the defendant met Cruz by chance in the 7-Eleven store, he stared at him and then followed him out of the store. The defendant later acknowledged that he was armed at the time and, from his reference to the gun ("What was I going to do, pull the gun out in the store?"), the jury could infer that the defendant's initial thought of using the gun on Cruz occurred while they were still in the store and that the defendant followed Cruz seeking a better opportunity to attack him. From Daniels's testimony about hearing the sound of a round being chambered, combined with the discovery of a live cartridge on the street near the parked car, expert testimony that the cartridge was from the defendant's gun, and tests showing that the defendant's gun would regularly misfire, the jury could have concluded that the defendant had tried to shoot from his hiding place behind the car but that the gun had misfired. Following that failed attempt, the defendant then approached the group and pulled out his gun again, ready to fire (the safety off and a round already chambered), as he reached Daniels. The jury could have concluded that the defendant approached the group to get a closer shot at Cruz, but that Daniels stood in his way. The defendant pointed the weapon at Daniels, and, after Daniels grabbed the gun, the defendant "yanked" the gun back and "just shot" in the direction of Cruz.² From this evidence, the jury could conclude that Cruz was the defendant's intended victim, and that there had been a period of premeditation, from the encounter in the 7-Eleven store through the misfired shot behind the car, the confrontation with Daniels, and the ultimate firing of the weapon.

The defense also argues that, even if the jury could have found that the defendant had a premeditated intent to kill Cruz, the evidence was insufficient to show that the defendant had that intent at the precise moment the gun was fired. Specifically, he argues that, where the gun went off during the struggle with Daniels, it was unreasonable to infer that the defendant was aiming purposefully at Cruz at the time the gun was fired.

While the evidence concerning the struggle certainly raised the issue of accident and involuntary manslaughter,³ it did not prevent the jury from concluding that the shooting was intentional and that it was directed at Cruz. As discussed above, there was evidence that an intent to kill Cruz, and a plan to carry out that killing, had been formulated earlier. When the defendant confronted Daniels and Daniels grabbed the gun, the gun was already set to fire and the defendant's finger was on the trigger. After just a few seconds' struggle with Daniels, the defendant "yanked" the gun backward, and, as discussed above, the jury could conclude that the pulling of the trigger was not caused by any motion Daniels was making. The defendant's own characterization of what happened ("I just shot") is consistent with a purposeful firing of the weapon. The jury were also entitled to consider the direction the bullet was fired, which, in order to have hit Graham, was toward Cruz. The jury could conclude that the defendant was indeed aiming at Cruz but that, firing quickly and under pressure before Daniels could get the gun away from him, his aim was somewhat compromised, causing the bullet to hit Graham instead of Cruz.⁴,⁵ The defendant's motions for a required finding of not guilty were properly denied. 3. Instruction on transferred intent. On appeal, the defendant argues that the judge's instruction on transferred intent was deficient. Defense counsel did not object to the instruction when given and, in fact, specifically asked the judge to refrain from including the language that he now says should have been included. Therefore, we review whether any error in the instruction caused a substantial likelihood of a miscarriage of justice. Commonwealth v. Drumgold, 423 Mass. 230, 258 (1996), and cases cited.

The judge gave the following instruction on transferred intent: "When a person is killed who was not the person intended and if the intended...