Commonwealth v. Horton

• Decision Date: 06 April 2001
• Citation: 434 Mass. 823,753 NE 2d 119
• Parties: COMMONWEALTH v. RUSSELL J. HORTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

434 Mass. 823

753 NE 2d 119

COMMONWEALTH v. RUSSELL J. HORTON.

Supreme Judicial Court of Massachusetts, Plymouth.

April 6, 2001.

August 14, 2001.

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

Emanuel Howard for the defendant. Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

SOSMAN, J.

The defendant was convicted on two indictments charging murder in the first degree (on grounds of deliberate premeditation and felony-murder) and one indictment charging assault with intent to murder.¹ On appeal, the defendant claims error in (1) the admission of prior bad act evidence; (2) the admission of statements of a coventurer; (3) the judge's denial of his motion for a required finding of not guilty; (4) the ineffective assistance of his counsel; and (5) the judge's denial of a motion for a new trial based on newly discovered evidence. The defendant also requests that we use our plenary power under G. L. c. 278, § 33E, to reduce the degree of guilt. For the reasons set forth below, we affirm the convictions and decline to exercise our power under G. L. c. 278, § 33E.

1. Facts. Viewed in the light most favorable to the Commonwealth, the evidence was as follows. On the evening of May 25, 1994, the three victims (Carlos Araujo [Carlos], his brother Manuel Araujo [Manuel], and Kepler Desir) drove together from Boston to Brockton. During that drive, Desir spent most of his time on the car telephone and checked his pager several times. After getting off the telephone, Desir instructed Manuel to drive to Owens Avenue to pick up "some guys." When they arrived at the house at 16 Owens Avenue, they met up with the defendant and Frederick Christian.² Carlos did not know either of them, but Desir introduced the defendant as "Russell" and introduced Christian as "Fred." The defendant and Christian got into the back seat, and the five men drove off. The defendant was sitting behind the driver (Manuel), Christian was in the middle, and Carlos was sitting behind Desir. The defendant said that he wanted to rob some Dominican drug dealers, and he directed Manuel to a particular location to carry out that plan. En route, the defendant pulled a gun out from his backpack and asked the others if they were carrying guns. They replied that they did not have any guns. The defendant then placed the gun in his waistband. At the defendant's instruction, Manuel parked the car on a dead-end street, and the defendant and Christian left the car, purportedly on their way to rob people in a nearby drug house. They came back five minutes later, reporting that they had been unable to complete the robbery because of the presence of an unexpected person. They returned to their seats in the car. Expressing concern that they were in a "crime watch" area, the defendant then told Manuel to take them to a nearby school parking lot. Manuel did so, and stopped the car in the designated lot.

In the parking lot, while gazing out the rear side window, Carlos suddenly felt a gunshot to his head. He slumped forward and remained motionless, pretending to be dead. Carlos heard Manuel say, "Oh, shit." Two more shots followed. Carlos then heard the defendant say, "Go through his pockets. Turn off the lights." Carlos felt Christian move from his seat, and then heard Christian ask, "Did you do him?" There was no response. Several minutes later, the defendant and Christian left the car.

Carlos waited a few moments, looked up, and saw the bodies of his brother and Desir. He got out of the car and ran to the nearest house for help. Carlos told the people in the house that "Russell" shot him, but that he did not know why. Later, after being taken to a hospital, Carlos also told the police that "Russell" had shot him. He was shown photographic arrays, from which he identified Christian, but he did not make an identification of the defendant from an array containing the defendant's photograph.³

Barry Stephens lived near the parking lot where the murders occurred. He knew both the defendant and Christian. Stephens testified that the defendant sold crack cocaine out of Stephens's home in Brockton, and that the defendant had previously sold drugs for Desir. However, there had been a recent falling out, and the defendant was no longer working for Desir. On the night of May 25, 1994, Stephens heard several gunshots. Five minutes later, the defendant and Christian knocked on his door. The defendant "was foaming at the mouth" and looking "kind of wild." The defendant told Stephens, "I smoked him ... I smoked all three of them." The defendant indicated that the person he had just "smoked" was "Quarter," a nickname by which Desir was known. The defendant threw a gun on the bed and asked Stephens if he would hold it. Stephens refused, and told the defendant to leave. The defendant expressed concern about leaving because there were "too many police out there." Stephens insisted that he leave. The defendant retrieved the gun and put it into his backpack. Prior to leaving with the defendant, Christian told Stephens, "Keep it under your hat."

There was evidence that the defendant and Christian were in need of money at the time of the murders. Stephens testified that, two weeks earlier, the defendant told him that he and Christian were planning to rob a bank. On the day of the murders, Christian told another witness that he needed money, and he asked Desir to give him drugs on credit. Desir refused to do so. There was also evidence that Christian knew that Desir was likely to be carrying a substantial amount of money that evening. Henry Garcia testified that he and Desir were planning on traveling to New York to buy $5,500 worth of drugs later that night, and that Christian was aware of that plan. Garcia was only providing $1,500 of the purchase price, and Desir was to provide the rest. Desir's girl friend testified that Desir had a substantial amount of cash at the time he was murdered, but she was unable to find any of it afterward.⁴

Pursuant to a warrant, the police seized a pair of sneakers, jeans, and a note from the defendant's bedroom. DNA analysis conducted by Cellmark Diagnostics revealed that blood found on the sneakers and jeans contained a DNA profile consistent with Manuel's DNA.⁵ The defendant and the other two victims were excluded as possible contributors to the bloodstains on the defendant's clothing.

The defendant gave a statement to the police. He initially told police he went to Owens Avenue to meet Christian. He made a few telephone calls, but said he did not page anyone. He and Christian went out for a walk and spent the evening with another friend. He eventually walked home, arriving there at 11 P.M. The police then told the defendant that they were checking the car for fingerprints, and that they were simultaneously interviewing Christian. The defendant then revised his statement, acknowledging that he did page Desir after he met up with Christian at Owens Avenue, and that Desir then came to pick them up. The defendant said that Manuel was driving, with Desir in the front passenger seat. The defendant sat behind Manuel, Christian sat in the middle, and another man (whose name he did not know) sat behind Desir. He said they all drove to Fuller Avenue, where he and Christian got out to go buy cocaine. He thought Manuel would return shortly to pick them up, but he claimed that they never returned and he did not see them again.

2. Admission of prior bad act evidence. The defendant claims the judge erred in admitting evidence of the defendant's involvement with drugs and evidence of the defendant's desire to rob a bank. He contends this was improper character evidence calculated to prejudice the jury against him.

Evidence of prior bad acts may not be admitted to show that the defendant has a criminal propensity or is of bad character. Commonwealth v. Robertson, 408 Mass. 747, 750 (1990). "Such evidence, if relevant, may be admitted, however, if it is offered for a purpose other than impugning the defendant's character, and if its probative value is not substantially outweighed by any prejudice." Commonwealth v. Marrero, 427 Mass. 65, 67 (1998), quoting Commonwealth v. Otsuki, 411 Mass. 218, 236 (1991). Thus, evidence of prior bad acts may, if not unduly prejudicial, be used to establish motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation. See P.J. Liacos, Massachusetts Evidence 154 (7th ed. 1999). "Whether evidence is relevant in any particular instance, and whether the probative value of relevant evidence is outweighed by its prejudicial effect, are questions within the sound discretion of the judge.... [T]he judge's determination of these questions will be upheld on appeal absent palpable error." Commonwealth v. Marrero, supra at 67-68, quoting Commonwealth v. Valentin, 420 Mass. 263, 270 (1995).

The judge did not abuse his discretion in admitting the evidence of the defendant's drug dealing and his earlier plan to rob a bank, because these prior acts were highly relevant to the motive behind the killings and the relationship between the defendant and the victims. The defendant's knowledge of Desir as a potentially lucrative target for armed robbery was based exclusively on the participants' involvement and familiarity with drug dealing. There was no error in admitting this evidence.

3. Statements of coventurer. The defendant claims error in the judge's admission of statements by Christian to the effect that he (Christian) wanted Desir to extend him credit for drugs and that he needed money. The defendant claims that the Commonwealth did not establish that the statements were made "during the pendency of the cooperative effort and in furtherance of its goal." Commonwealth v. Pleasant, 366 Mass. 100, 104 (1974). However, this evidence was admitted under the state of mind exception, not as statements of a coventurer. The judge found Christian's statements pertained to his intent to...