Commonwealth v. Gibson

• Decision Date: 27 January 2022
• Docket Number: SJC-12159
• Citation: 179 N.E.3d 578
• Parties: COMMONWEALTH v. Darius GIBSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 N.E.3d 578

COMMONWEALTH

v.Darius GIBSON.

SJC-12159

Supreme Judicial Court of Massachusetts, Suffolk.

Argued November 5, 2021.

Decided January 27, 2022.

Dana Alan Curhan, Boston, for the defendant.

Ian MacLean, Assistant District Attorney, for the Commonwealth.

Present: Budd, C.J., Cypher, Kafker, Wendlandt, & Georges, JJ.

WENDLANDT, J.

The defendant, Darius Gibson, was convicted of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty for the death of Terrence Kelley, who was shot multiple times as he was being chased by his assailant down a public street in Boston on a sunny afternoon just before Memorial Day in 2010.¹ Following his conviction, the defendant filed a motion for a new trial on the ground that he located a "newly available" witness who would provide impeachment evidence against one of the Commonwealth's key witnesses. The motion judge, who was also the trial judge, denied the motion.

In this consolidated appeal, the defendant contends that (1) the judge erred in permitting evidence regarding the defendant's familiarity with the locus of the shooting and with firearms; (2) the judge erred in allowing evidence suggesting two witnesses were fearful of meeting with police officers following the shooting; (3) the judge erred in denying the defendant's request for a continuance to permit trial counsel more time to locate a witness who had indicated that one of the Commonwealth's key witnesses had fabricated her testimony; (4) the judge erred in denying the defendant's motion for a new trial; (5) trial counsel provided ineffective assistance; and (6) we should revisit our "corpus delicti" rule to adopt the Federal standard, as more fully discussed infra. In addition, the defendant asserts that a reduction in the verdict would be more consonant with the weight of the evidence presented and asks us to exercise our authority under G. L. c. 278, § 33E, to reduce the degree of guilt. We affirm the defendant's convictions and the order denying his motion for a new trial, and we discern no reason to grant relief under G. L. c. 278, § 33E.

1. Background. a. Facts. We recite the evidence in the light most favorable to the Commonwealth, reserving some details for later discussion. Commonwealth v. West, 487 Mass. 794, 795, 169 N.E.3d 1183 (2021).

On May 28, 2010, prior to the shooting, the defendant visited James Austin at a second-floor apartment that Austin shared with his mother on Creston Street, located in a building between Normandy Street and Blue Hill Avenue, in Boston. The defendant wore a black hat, a black shirt, black pants, and glasses; his hair was in flat braids. Austin's mother testified that the defendant had come that day seeking, as he had in the past, to purchase "eight balls"² of cocaine from Austin. On this day, however, no drugs were exchanged; instead, Austin informed the defendant that, the prior day, "K-J" (the victim's nickname) and others had robbed Austin and Earl Smith³ of, inter alia, their supply of drugs. The theft had taken place just outside the Austins’ apartment building.

The defendant left the Austins’ apartment. Austin's mother did not see the defendant again that day. She testified that after the defendant left, Austin telephoned the victim and asked the victim if he could "get his ID back, that's all he wanted back was his ID." The victim agreed.

Meanwhile, the victim had parked his car on the far end of Creston Street, near Normandy Street; as he passed the Austins’ building, Austin's mother saw the victim "walking up and down" Creston Street. The victim was "just bragging" and "screaming," "This is my block, this is my block now, this is my block." Austin's mother then retired to her room to sleep.

The victim continued walking and then stopped, for a brief time, at the home of his childhood friend, who lived with his mother on the third floor of a building on the corner of Normandy Street and Creston Street, to play video games. Thereafter, the friend escorted the victim out; it was a bright, sunny afternoon, a bit before 2 P.M.

Immediately after the victim left, the friend's mother, who had been home during the victim's visit, heard multiple gunshots that sounded like "firecrackers." The friend, who had returned to the apartment, and his mother ran to the apartment's window that faced Creston Street and saw the victim leaning against a van. The friend sprinted outside with his brother; when they reached the victim, he was spitting blood. They lifted his shirt and saw bullet holes in his body. The friend helped the victim to the ground "because he was so, he was weak and he was going down." The friend used his own T-shirt to put pressure on the victim's wounds, as the victim stated in Spanish, "I can't breath[e]." The victim had "blood all over him," and "blood was coming out of his mouth."

Austin's mother was awakened by the sound of gunshots. Looking out her apartment window, she saw two men running on Creston Street toward Blue Hill Avenue. She then heard her buzzer, and Austin said through the intercom system: "Ma, open the door, open the door." She went downstairs to let him and Smith into the apartment building;⁴ she testified that Austin was "scared" and that he said, "K-J got shot." She looked out her window again and saw the victim "by the pole bleeding."

Charles Slayden, a Creston Street resident, testified that just before 2 P.M. on the day of the shooting, as he arrived at his home, he saw a man on the corner of Creston and Normandy Streets; he later identified the man as "Wizz," who was known to spend time with Austin.⁵ "Wizz" was the defendant's nickname. As Slayden arrived home, he heard a male voice saying, "You can't run now mother fucker"; Slayden saw two men running (one behind the other) and heard multiple gunshots. Slayden saw the second man, who had been in the back, keep going toward Blue Hill Avenue. The victim, who had been the man in the front of the chase, stopped and turned around to walk back up Creston Street in the direction from which he had come. The victim's legs buckled.

Jenice Peters, another Creston Street resident, was sitting on her porch and heard what she thought sounded like "firecrackers" coming from the direction of Normandy Street. She heard a male voice say, "Go back to where you came from." She then saw the victim, who stopped and coughed blood, before trying to make his way toward Normandy Street. The victim "was holding his stomach" and "keeled over"; Peters "saw blood coming out of his mouth." Peters saw a second man (whom she described as African-American, with dark skin and braids lying against his head, wearing all dark clothes) walk down Creston Street to Blue Hill Avenue. Peters had seen the man once before, about a week before the shooting. Peters retrieved her cell phone to call 911 but determined not to do so when the second man gave her an "ill grill," or a "weird look like you better not do it."

Two other witnesses also offered their eyewitness accounts of the shooting. The first was a Creston Street resident who heard a man cry for help. She looked out her window, heard gunshots, and saw an injured man run toward Blue Hill Avenue. She also saw a second "young" man also run toward Blue Hill Avenue; she described him as having braids and "dark skin" and wearing black. The second witness, who lived a few streets away and was driving his scooter at the time of the shooting, reported that he was near the corner of Creston Street and Normandy Street when he saw two men engaged in a chase on Creston Street toward Blue Hill Avenue and heard several gunshots. He then saw the second man in the back break away toward Blue Hill Avenue. The victim, who was the man in front, circled back down Creston Street toward the witness (away from Blue Hill Avenue). The victim stopped, leaned against a motor vehicle, and dropped to the ground. The witness called 911 and described the shooter as a Hispanic male wearing a white T-shirt; at trial, this witness testified that he thought he was describing the victim to the dispatcher at that time and that he could not describe the shooter, whom he had only seen from behind.

Responding Boston police officers arrived at the scene just before 2 P.M. One officer tried to talk to the victim, but the victim was "gargling and bleeding from his mouth" and could not speak. An ambulance arrived and transported the victim to the hospital, where he was pronounced dead shortly after arriving. An autopsy was performed the day after the shooting. The medical examiner recovered four bullets from the victim's body, but the victim had been shot five times -- two times in the front of his body and three times in the back.⁶ Blood was found in the victim's lungs, which had made it difficult for him to breathe. The medical examiner determined that the wounds to the lung and liver were the most serious injuries and caused the victim's death.

Immediately after the victim was transported to the hospital, police officers secured the crime scene and began to canvas the area for both physical evidence and witnesses. Officers recovered six .25 caliber shell casings from Creston Street, all of which appeared to have been discharged from the same firearm (as evidenced by impression marks on the casings). Officers also recovered two bullets from the street, which appeared to have been fired from the same firearm as the bullets found in the victim's body.⁷ Officers reviewed video surveillance footage captured on cameras from the Creston Street building in which the Austins lived. The footage showed Austin and another man, later identified as Smith, on the stoop of that building at the time of the shooting; it also showed the victim running from the right of the screen to the left (from Normandy Street toward Blue Hill Avenue), and then walking back from the left to the right a short time later. Despite the ongoing investigation, no arrests were made in 2010.

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