Commonwealth v. Henley

• Decision Date: 05 August 2021
• Docket Number: SJC-12951, SJC-12952
• Citation: 171 N.E.3d 1085,488 Mass. 95
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Donte HENLEY (and three companion cases ).

488 Mass. 95

171 N.E.3d 1085

COMMONWEALTH

v.Donte HENLEY (and three companion cases ¹ ).

SJC-12951, SJC-12952

Supreme Judicial Court of Massachusetts, Suffolk.

Argued November 6, 2020.

Decided August 5, 2021.

The following submitted briefs for amici curiae:

Katherine C. Essington, for Donte Henley.

Jennifer H. O'Brien, Billerica, for Josiah Zachery.

Benjamin Shorey, Assistant District Attorney, for the Commonwealth.

Matthew Spurlock & David Rangaviz, Committee for Public Counsel Services, Jennifer Lynch & Andrew Crocker, of California, Oren Nimni, Matthew R. Segal, & Jessie J. Rossman, for Committee for Public Counsel Services & others.

Alan Butler & Megan Iorio, of the District of Columbia, & Caitriona Fitzgerald, for Electronic Privacy Information Center.

Martin F. Murphy, Boston, for Boston Bar Association.

Present: Budd, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.

CYPHER, J.

On the morning of February 11, 2015, the victim, Kenny Lamour, was shot in the head and killed. The defendants, Josiah Zachery and Donte Henley, were tried jointly before a jury. Both defendants were convicted of murder in the second degree. Zachery also was convicted of assault by means of a dangerous weapon and carrying a firearm without a license.

The defendants argued their appeals separately but joined in each other's arguments. The defendants argue that (1) the motion judge erred in denying their motion to suppress evidence obtained during an investigatory stop, a warrantless search of Zachery's Massachusetts Bay Transportation Authority (MBTA) CharlieCard,² and a search of Zachery's cell phone pursuant to a search warrant; (2) the trial judge abused his discretion by failing to sever the defendants’ trials; (3) the judge erred in admitting evidence of prior misconduct that connected Henley to an earlier shooting; (4) the judge erred in allowing a police officer to testify that he had known Henley since 2005; (5) the judge erred in admitting certain testimony of the Commonwealth's gang expert; (6) the prosecutor made improper statements in his opening statement and closing argument; (7) the judge erred in failing to give Henley's proposed instruction on mistake or accident; (8) trial counsel failed to provide effective assistance; and (9) the cumulative impact of trial errors created a substantial risk of a miscarriage of justice, even if individual errors did not.

We discern no reversible error, and accordingly, we affirm the denial of the defendants’ motion to suppress and their convictions.

Background. We summarize the facts that the jury could have found, reserving certain facts for the discussion of the defendants’ arguments. In addition, we reserve the facts that the motion judge found for the discussion of the defendants’ motion to suppress.

1. The shootings. Henley and the victim worked at a nonprofit organization (program) dedicated to providing at-risk youth with vocational training and job opportunities.

The program often employed its participants to work as part of a larger team in the community. On February 11, 2015, the morning after a snowstorm, Henley sent a text message to his program supervisor to let the supervisor know that he was on his way to work. Henley's supervisor responded, alerting him that the victim, "the kid from [Thetford Avenue]," was present, and asked Henley to "keep it cool." Henley was a member of the Franklin Hill Giants gang, and the victim was a member of a rival gang, the Thetford Avenue Buffalos gang. Zachery also was a member of the Franklin Hill Giants gang but was not involved with the program.

The program transported a group of individuals in a van to Centre Street in the Jamaica Plain section of Boston to shovel snow that morning. Henley joined the group late. The victim also was present. Around this time, Henley began exchanging text messages with and calling Zachery.

Zachery traveled via the MBTA, as evidenced by surveillance video footage and records associated with his CharlieCard, to the area where Henley and the victim were located. Zachery shot the victim in the head and ran from the scene down Centre Street. As he fled, he fired a shot at Boston police Officer William Louberry but did not hit him. Louberry used his police radio to call in a description of Zachery while pursuing him on foot. Louberry described Zachery physically and noted that he was dressed in all black clothing with a gray hooded sweatshirt over his head and was running with a gun in hand. Louberry eventually lost sight of Zachery after he turned onto Aldworth Street.

2. The investigation. Shortly after the shot directed at Louberry was fired, Boston police Officer Ydritzabel Oller observed an individual, later identified as Zachery, walking across Centre Street wearing a gray hooded sweatshirt and black pants and carrying a shovel. Oller stopped Zachery and conducted a threshold inquiry. Zachery was not arrested but was handcuffed and put in a police cruiser.

While Zachery was detained in the police cruiser, the firearm that later was determined to have been used in the murder was recovered on the garage roof of a house near the corner of Centre and Aldworth Streets. The black jacket worn by Zachery during the murder was found under the porch of the house. Police also discovered that a shovel was taken from outside the same house. A resident of the house later identified the shovel that Zachery was observed carrying as the shovel that was taken from outside his house. Additionally, footprints consistent with Zachery's sneakers were found in the area surrounding the house.

Zachery was transported to police headquarters, where he was interviewed until he invoked his right to counsel. After the interview ended, Zachery was arrested. Henley, who was not a suspect at the time, also was transported to police headquarters and interviewed as a witness. As part of the investigation, police seized Zachery's cell phone and obtained a search warrant to review its contents. Police discovered multiple text messages and telephone calls between Zachery and Henley on the morning of the murder. Shortly after Henley learned from his supervisor that the victim would be present on the work crew, he sent Zachery a text message that he might need Zachery to "hold [him] down." Henley sent a text message to Zachery stating his location, and Zachery began traveling to that location. Henley told Zachery via text message to "hurry up" because he wanted to "punch the kidd up." In the hours leading up to the murder, Henley and Zachery continued to coordinate a plan. Henley sent Zachery a text message stating, "I'll do I just need my steal," and shortly thereafter, "It's like it's me or him and I ain't going." Zachery responded, "fuck him your right." At 9:29 A.M. , Henley sent Zachery a text message stating, "So how we gon do it?" At 9:30 A.M. , Zachery called Henley. The call lasted nineteen seconds. Eventually, Henley sent Zachery a text message with a description of the victim's clothing and the work crew's exact location. At 10:20 A.M. , Zachery sent Henley a text message stating, "I see the van Cant find yall." Two brief calls between them followed before the victim was shot.

Zachery and Henley were both charged with murder in the first degree under theories of premeditation and extreme atrocity or cruelty. The judge instructed the jury on murder in the first and second degree and the lesser included offense of involuntary manslaughter. The defendants were convicted of murder in the second degree.

Discussion. 1. Motion to suppress. Zachery argues that the motion judge erred in denying his motion to suppress evidence obtained during an investigatory stop, a warrantless search of his CharlieCard, and a search of his cell phone pursuant to a search warrant. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431, 35 N.E.3d 357 (2015). Henley's motion to join Zachery's motion to suppress as it related to Zachery's cell phone and text messages was allowed.³ We conclude that the judge properly denied the defendants’ motion to suppress.

a. The warrantless searches. The defendants challenge the stop and frisk of Zachary and the search of his CharlieCard without a warrant. "A warrantless search is presumptively unreasonable under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, unless it falls within one of the ‘few specifically established and well-delineated exceptions’ to the warrant requirement." Commonwealth v. Johnson, 461 Mass. 44, 48, 958 N.E.2d 25 (2011), quoting Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The Commonwealth bears the burden of proving that a warrantless search is reasonable. See Commonwealth v. Abdallah, 475 Mass. 47, 51, 54 N.E.3d 1100 (2016). An evidentiary hearing was held. "In reviewing the denial of a motion to suppress, we defer to the motion judge as to the weight and credibility of the evidence. We accept the motion judge's findings of fact unless they are clearly erroneous and assess the correctness of the judge's legal conclusions de novo." Commonwealth v. Weidman, 485 Mass. 679, 683, 152 N.E.3d 98 (2020), quoting Commonwealth v. Bell, 473 Mass. 131, 138, 39 N.E.3d 1190 (2015), cert. denied, ––– U.S. ––––, 136 S. Ct. 2467, 195 L.Ed.2d 806 (2016).

i. The evidentiary hearing. We summarize the facts found by the motion judge, supplemented by uncontroverted facts from the record. We note that the motion judge fully credited and adopted the testimony of the officers at the hearing on the defendants’ motion to suppress.

On the morning of the murder, Henley contacted Zachery by cell phone to let him know of the work crew's location. After the victim was shot, the shooter fled the scene. While fleeing, he fired once at Louberry.

The officer gave chase, broadcasting the route of the chase and a description of the suspect over the radio. The officer described the shooter as a Black male, from six feet to six feet, one inch tall;...