Commonwealth v. Gray

Decision Date05 June 2013
Docket NumberSJC–10782.
Citation465 Mass. 330,990 N.E.2d 528
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


David H. Mirsky for the defendant.

Allison Callahan, Assistant District Attorney (Masai–Maliek King, Assistant DistrictAttorney, with her) for the Commonwealth.



The defendant was convicted by a Superior Court jury of murder in the first degree for the shooting of his uncle, Charlie Wilson, on July 9, 2005; assault and battery by means of a dangerous weapon of MacArthur Powell, another uncle, on June 16, 2005; and related firearm and ammunition offenses. 1 The jury were unable to reach a verdict on indictments charging the defendant with murder in the first degree of James Gray, the defendant's stepfather, and with firearm and ammunition charges related to that offense. 2 The Commonwealth's theory at trial was that the defendant killed or assaulted the victims because he believed that each of them had sexually molested him as a child.

The defendant claims that joinder of the indictment charging assault and battery by means of a dangerous weapon with the indictments charging murder in the first degree was unfairly prejudicial, and that his motion to sever the indictments should have been allowed. The defendant contends also that questions the judge asked the venire concerning their ability fairly to evaluate the evidence notwithstanding the absence of physical evidence such as deoxyribonucleic acid (DNA) or fingerprints linking the defendant to the crimes should not have been asked and, in conjunction with the prosecutor's closing argument referencing those questions, suggested to the jury that they could not consider the Commonwealth's failure to produce such evidence or to investigate thoroughly the physical evidence at the crime scenes. In addition, the defendant maintains that his motion to suppress a box of ammunition seized from the kitchen of the apartment where he lived should have been allowed because the ammunition was seized in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution, art. 14 of the Massachusetts Declaration of Rights, and Massachusetts law.

We affirm the convictions and conclude that there is no basis to exercise our power under G.L. c. 278, § 33E, to reduce the conviction of murder in the first degree to a lesser degree of guilt or to order a new trial.

Background. We summarize the facts the jury could have found, supplemented, where necessary to provide context, by portions of the testimony introduced in the Commonwealth's case-in-chief for the shooting of James.

According to members of the defendant's family, the defendant had come to believe that he had been sexually abused by several male relatives when he was younger; had a mental list of relatives he suspected of that childhood sexual abuse, which included MacArthur, Wilson, and James; and believed that he had been both sexually and physically abused by his stepfather.

On June 16, 2005, the defendant and a cousin went to the home of their uncle, MacArthur. After making small talk for a few minutes, the defendant walked to his uncle's bed, knelt down as if praying, and then got up. The defendant ordered MacArthur to kneel as he had just done, and asked him how he “want[ed] it.” The defendant pressed the end of a handgun to MacArthur's head and then left. Initially, MacArthur did not tell the police about the assault.

The defendant's uncle Wilson, who lived alone, had serious health issues and limited mobility. On July 9, at about 9 a.m., Wilson spoke by telephone with his visiting nurse, who told Wilson he would come by to visit at 10 a.m. Sometime between 9 a.m. and 10:30 a.m., the defendant visited his uncle, Earlie Powell, who was eating breakfast. After talking for a few minutes, the defendant told his uncle, “I offed Charlie.” When Earlie expressed disbelief, the defendant gestured twice, as if firing a gun, and then left. Just before 10 a.m., the visiting nurse knocked on Wilson's door. Receiving no response, the nurse called Wilson using a cellular telephone. He could hear Wilson's telephone ringing inside the apartment, but Wilson did not answer.

Later that day, Earlie told his son, Ujean Warren, what the defendant had said, and the two drove to Wilson's apartment to check on him. Ujean called Wilson from outside the building, but there was no answer. Ujean asked a security guard to locate the building custodian, who accompanied Ujean to the entrance to the apartment. The custodian was “sort of alarmed” to find the door locked, because generally it was left unlocked so that people could check on Wilson. When the men entered the apartment, they found Wilson lying facedown on the bed, with his lower legs extending off the bed and a pillow over his head. Wilson had been shot twice in the head. Nine millimeter spent shell casings were found at the scene.

On July 14, Boston police officers went to James's apartment to interview him about Wilson's death. James did not respond to their knock, but they could hear “loud ... Latin music” from inside the apartment. When they returned the next day and James still did not answer, the officers requested that building security unlock the door. The air-conditioning was turned up and the inside of the apartment was “freezing”; the television was on with the volume set very high.

Police found James's body face down on the bed, “kind of like on his knees.” His head was covered by towels that had been stacked on top of each other and were perforated with what appeared to be bullet holes. His hands were bound together with cords, a cord was wrapped around his legs, and his shorts and underwear were pulled down to his ankles. A necktie was tied over his mouth, and there was a sock inside his mouth. A nine millimeter spent shell casing and a nine millimeter bullet were recovered from the scene.3 The sign-in log to James's building for July 12 showed that the defendant had signed in at 7:40 a.m. and that no other visitor had signed in after him to visit James. When asked about the sign-in log, the defendant admitted to police that he had visited James “the other day,” saying he had gone up to talk with James and then left. A gold watch with distinctive features was missing from James's apartment; the defendant was seen with that watch on July 12.

After he was arrested, the defendant agreed to give a statement to police.4 During the interview, he told police that he had recently seen Wilson with children, which bothered him; that James may have done something to him in the past that he could not remember; and that he did remember that James beat him consistently. The defendant also stated that he might have been abused in the past. He said he was telling this to the detective so that it would not happen to other children. The defendant said that his uncle, MacArthur, had at some point “offered up his private parts” to him.

Discussion. 1. Joinder. The defendant claims that the trial for the assault on MacArthur should not have been joined for trial with the two murder indictments. He claims that the cases were not properly joined because there was “no substantive connection” between the incidents, the murders were distinct in their levels of brutality, and the motive for the assault on MacArthur was “particularized” to that victim. He argues also that joinder was prejudicial because trial of the assault and battery together with either murder “was likely to cause the jury to draw the impermissible conclusion that the defendant had a criminal propensity.” Evidence of the assault on MacArthur, he maintains, would have been inadmissible at a severed murder trial because it concerned only a prior bad act, and since that was the only charge for which the prosecution had eyewitness identification, it implicitly strengthened the other two cases and precluded the defense of mistaken identity.

Joinder is governed by Mass. R.Crim. P. 9, 378 Mass. 859 (1979). Rule 9(a)(3) provides that, where “a defendant is charged with two or more related offenses, either party may move for joinder of such charges,” and that joinder “shall” be allowed unless the trial judge “determines that joinder is not in the best interests of justice.” “Thus, joinder requires first that the offenses are related, and second that joinder be in the best interests of justice.” Commonwealth v. Sullivan, 436 Mass. 799, 803, 768 N.E.2d 529 (2002). A judge is required to do more than determine whether the explicit requirements for joinder are met, and must “decide the question in the context of the guarantee of a fair trial for every defendant. The determination of what will be in the ‘best interests of justice’ requires weighing, in each case, the defendant's interests against judicial economy.” Commonwealth v. Sylvester, 388 Mass. 749, 758, 448 N.E.2d 1106 (1983). “The propriety of joinder is a matter for the trial judge's discretion.” Commonwealth v. Sullivan, supra. See Commonwealth v. Mamay, 407 Mass. 412, 416, 553 N.E.2d 945 (1990).

As relevant here, offenses are related “if they ... arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan.” Mass. R.Crim. P. 9(a)(1). See Commonwealth v. Sylvester, supra at 755, 448 N.E.2d 1106. In this context, offenses are related if “the evidence in its totality shows a common scheme and a pattern of operation that tends to prove” each indictment. Commonwealth v. Feijoo, 419 Mass. 486, 494–495, 646 N.E.2d 118 (1995). In making the determination whether a series of offenses is related, a judge may consider the factual similarities between the offenses, Commonwealth v. Ferraro, 424 Mass. 87, 89–91, 674 N.E.2d 241 (1997); whether the offenses were near to each other in time or place, Commonwealth v. Delaney, 425 Mass. 587, 594, 682...

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