Commonwealth v. Henderson

• Decision Date: 30 November 2020
• Docket Number: SJC-11702
• Citation: 157 N.E.3d 1277,486 Mass. 296
• Parties: COMMONWEALTH v. Frederick HENDERSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

486 Mass. 296

157 N.E.3d 1277

COMMONWEALTH

v.Frederick HENDERSON.

SJC-11702

Supreme Judicial Court of Massachusetts, Suffolk..

Argued November 8, 2019.

Decided November 30, 2020.

Dennis Shedd, Lexington, for the defendant.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.¹

GAZIANO, J.

A Superior Court jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation. The jury also convicted the defendant of unlawful possession of a firearm. The Commonwealth alleged that the defendant and his codefendant fatally shot the victim, Derrick Barnes, when Barnes returned to his former neighborhood to visit with family and friends.² The motive for the killing, according to the Commonwealth, was that the victim had "snitched" to law enforcement in an unrelated case. The defendant asserted an alibi defense by presenting evidence that he dropped his niece off at a church event around the time of the shooting.

On appeal, the defendant challenges the convictions on grounds of ineffective assistance of counsel. The defendant contends as well that he is entitled to a new trial because the judge erred in allowing the introduction of certain evidence, and because the judge abused his discretion in allowing the prosecutor to exercise a peremptory challenge. For the reasons that follow, we affirm the convictions and conclude that relief under G. L. c. 278, § 33E, is not warranted.

1. Background. We recite the facts the jury could have found, reserving certain details for our discussion of particular issues. The victim and his brother, Darryl Barnes,³ grew up in the Dorchester section of Boston. In 2009, the victim testified in an unrelated criminal trial, and then moved to a town outside Boston. Thereafter, the victim rarely visited his old neighborhood.

The defendant and the codefendant, who were friends, lived on the same street in the victim's former neighborhood. The defendant was known by the nickname "Drano," while the codefendant was known as "Jigga." During the time that the victim lived on the defendant's street, he "hung out" with the defendant and the codefendant.

On August 27, 2011, the day of a large festival in Boston, the victim and his brother returned to their former address to visit family and friends. The brothers met up with their cousin, Rondale Williams, and some friends. Darryl left to drive another cousin home. The victim and Williams continued to walk down the street, and stopped to talk to Shantee Griffin. Griffin, who had lived at her mother's house, at no. 14, for two years, knew Williams, and the victim was introduced to her as "Doughboy." Eventually, the victim, Williams, another man, and a woman gathered on the front porch of no. 11. Griffin, who had left the victim and Williams, stood on the sidewalk in front of a house located across the street.⁴

At 7:05 P.M. , two men, later identified as the defendant and the codefendant, walked down the street and stopped in front of no. 11. The victim and the codefendant got into an argument. The victim said, "I'm saying, mother, you want to holler at me, holler at me then." The codefendant asked, "[N]ow, what's up with that rattin' shit?" After this exchange, the codefendant and the defendant, standing side by side on the sidewalk, pulled out handguns and fired multiple shots at the victim. The victim dropped to the floor. Both assailants walked away from the porch. The codefendant turned around, approached the fallen victim, and shot him again at close range. The victim suffered five gunshot wounds, including a fatal wound to the head.

Griffin telephoned 911 and then attempted to aid the victim until police and emergency medical services arrived. At the scene she told police that she had heard shots from across the street but had not seen the shooter. She also provided police with her telephone number. During a telephone interview on the evening of the shooting, Griffin told police the names of the two shooters. Williams was interviewed by police approximately a week after the shooting. He told police that he had been on the porch with the victim when the defendant and codefendant walked up onto the porch. The codefendant pulled out a gun and shot the victim, and then shot him again after he fell.

Police collected three expended .32 caliber shell casings at the crime scene, and recovered two .32 caliber projectiles from the victim's body. The casings were fired from the same firearm. The two projectiles, however, had been fired from two different weapons.

At trial, the Commonwealth called Williams and Griffin as eyewitnesses. Williams knew both the defendant and the codefendant. He had met the defendant in 2005, when the defendant "was going through a situation" and came to live with one of Williams's relatives. He had known the codefendant for approximately fifteen years. Williams testified that he had been on the front porch with the victim immediately prior to the shooting. He did not hear an argument prior to the gunfire. Williams testified that he could not identify anyone because he never looked at either gunman's face. He also said that he had been highly intoxicated that evening from drinking vodka, smoking marijuana, and "popping" pills, and that he had been "rolling a blunt" when the shooters walked up. Williams also testified that he could not remember talking to police the week after the shooting, when he identified the codefendant as the shooter.

Griffin testified that she did not know the defendant or the codefendant. She said that she had heard gunshots, but did not see the shooting because she was looking in the opposite direction and, in any event, her view across the street had been obstructed. She also testified that she had been pressured by a detective to testify falsely before the grand jury and to present information supplied by the police.

After the judge determined that Griffin and Williams were feigning a lack of memory or testifying inconsistently to prior recorded statements, the Commonwealth was allowed to introduce out-of-court statements, admitted substantively, that Williams and Griffin previously had identified the defendant.⁵ These statements included Griffin's telephone call to police, Griffin's and Williams's statements to police during interviews, and Griffin's and Williams's grand jury testimony.

In his interview with investigators, introduced substantively, Williams stated that the defendant and the codefendant (whom he referred to as "Drano" and "Jigga," respectively) walked up to the porch at no. 11. After an exchange of words with the victim, the codefendant pulled out a gun and fired. Both men then started to leave. The codefendant turned around, returned to the porch, and fired several shots at the wounded victim.

On the evening of the shooting, Griffin told a responding patrol officer that she had heard shots but did not see anything. She told another officer that she had seen a single shooter run away from the scene. Later that evening, a detective telephoned Griffin to follow up on the information she had given the uniformed officers. During that conversation, Griffin said that there had been two assailants, whom she identified as "Drano" and "Jigga."

A few days later, detectives interviewed Griffin at Boston police headquarters. She told them that she had been standing on the opposite side of the street and had observed the defendant and the codefendant (known to her as "Drano" and "Jigga") walk down the street. They said something to the victim (whom she knew as "Doughboy"). The codefendant then pulled out a gun and started firing at the victim. She did not see a firearm in the defendant's hand. She had known the defendant and codefendant "for about a year" from spending time on that street. At the end of the interview, the detectives displayed two photographs of the individuals they believed to be Drano and Jigga. Griffin identified the defendant as Drano and the codefendant as Jigga.⁶

On September 1, 2011, Griffin testified before the grand jury. She testified that she had lived on the same street for approximately two years. When she first moved in, a friend introduced her to the codefendant. The codefendant hung around at the top of the street, and Griffin would see him "almost every day." Griffin was less familiar with the defendant. During the two years that she had lived on the same street, in her mother's house, she had seen the defendant "three to four times." They had never had an actual conversation, but were familiar enough with each other to say hello.

The defendant, who lived with his sister and his niece, presented an alibi defense. On the evening of the shooting, his niece had been scheduled to dance at a church event, and the defendant agreed to take her there. His niece's father, the church pastor, telephoned at 7 P.M. to find out where she was, and was told that the defendant was on his way. The defendant dropped his niece off at the church at about 7:05 to 7:10 P.M. , and returned to his apartment sometime between 7:20 and 7:25 P.M.

2. Discussion. The defendant raises three claims in this direct appeal from his conviction combined with his appeal from the denial of his motion for a new trial. First, he contends that he was deprived of the effective assistance of counsel, in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. Second, he argues that the judge erred in allowing a transcript of Griffin's grand jury testimony to be introduced in evidence. Third, the defendant maintains that the prosecutor impermissibly exercised a peremptory challenge to exclude an African-American juror.

a. Ineffective assistance of counsel. In his motion for a new trial, and in his supplemental motion, the defendant raised numerous claims of ineffective assistance by his trial counsel. In particular, the...