Commonwealth v. Hunt

• Citation: 84 Mass.App.Ct. 643,999 N.E.2d 1104
• Decision Date: 20 December 2013
• Docket Number: No. 12–P–544.,12–P–544.
• Parties: COMMONWEALTH v. Shawn HUNT (and three companion cases).
• Court: Appeals Court of Massachusetts

84 Mass.App.Ct. 643

999 N.E.2d 1104

COMMONWEALTH

v.Shawn HUNT (and three companion cases¹ ).

No. 12–P–544.

Appeals Court of Massachusetts, Bristol.

Argued April 10, 2013.

Decided Dec. 20, 2013.

William M. McCauley, Assistant District Attorney (Tara L. Blackman, Assistant District Attorney, with him) for the Commonwealth.

Joseph F. Krowski, Brockton, for Jonathan Michael Pittman.

Robert S. Sinsheimer for Shawn Hunt.

Present: RUBIN, FECTEAU, & HINES, JJ.

Opinion

HINES, J.

The defendants, Shawn Hunt and Jonathan Michael Pittman, were indicted for murder in the first degree and carrying a firearm without a license by a Bristol County grand jury. After a grand jury witness, the victim's mother, admitted to fabricating her identification of the defendants as the perpetrators of the crime, a judge allowed the defendants' motions to dismiss the indictments without prejudice. The Commonwealth now appeals from the order allowing the motions to dismiss, claiming that the judge erred in ruling that the presentation of the witness's false identification impaired the integrity of the grand jury proceedings. Although we conclude that the judge committed no error in his assessment of the Commonwealth's conduct in presenting the evidence to the grand jury, we reverse because the evidence was otherwise sufficient to sustain the indictments.

1. Background. On November 20, 2003, Alberto “Tito” Gonzalez was killed by shots fired from a passing motor vehicle in New Bedford. In the immediate aftermath of the crime, the police investigation identified the defendants as possible suspects. The Bristol County district attorney, however, declined to present the case against these defendants (hereinafter, the Gonzalez case) to a grand jury. Almost five years later, a newly elected district attorney presented the Gonzalez case to three successive grand juries,² culminating on January 23, 2009, in indictments of the defendants for murder in the first degree and carrying a firearm without a license.

On the eve of trial, the Commonwealth learned that Fernanda Gonzalez, the victim's mother, had fabricated her grand jury testimony identifying Pittman as the person who shot her son and Hunt as an accomplice. In accordance with established law,³ the Commonwealth promptly disclosed the witness's false statements to the court and the defendants. In response, the defendants filed motions to dismiss the indictments with prejudice, claiming that prosecutorial misconduct in the presentation of the false identification testimony impaired the integrity of the grand jury proceedings.

After a lengthy evidentiary hearing on the motions to dismiss, the judge allowed the motions without prejudice on the grounds that the Commonwealth “proceeded with reckless disregard for the truth of the identification evidence” and that the false identification testimony “probably influenced the decision to indict.”

Our analysis of the issues raised by the Commonwealth's appeal is informed by the evidence presented to the grand jury and to the judge at the hearing on the motions to dismiss. The following is a summary of the evidence presented at both proceedings.

a. The grand jury testimony. On November 20, 2003, at approximately 6:00 p.m. , the victim, Alberto “Tito” Gonzalez (Tito), was shot from a passing motor vehicle at the corner of Hillman and Spruce Streets in New Bedford. Fernanda Gonzalez (Fernanda), Tito's mother, was unloading groceries in front of her home on Spruce Street when the shooting occurred. Tito had just left their home to visit a neighbor who also lived on Spruce Street. As Tito walked in a northerly direction across Hillman Street, Fernanda observed a dark-colored vehicle turn right from Spruce Street onto Hillman Street. As the vehicle made the turn, she heard shots and observed that someone in the vehicle was firing at Tito. Tito bent over at the waist, stumbled a bit, and ran up Hillman Street. As he did so, he yelled at her to go into the house. She watched until Tito disappeared from sight as the vehicle pursued him up Hillman Street.

The police arrived on the scene within minutes after the shooting. They searched the area for Tito but were unable to locate him or find any evidence that a shooting had occurred. After the police left, Tito's family and friends organized a search of the neighborhood. At or around 8:00 p.m. , almost two hours after the shooting, one of Tito's friends found Tito's body in the backyard of a residence on Hillman Street. He had suffered a fatal gunshot wound

.

Later that night, a team of police officers from the New Bedford police department and the State police returned to the area to begin their investigation into the shooting. Their first lead came from an area resident who told them he had heard shots and had looked toward Hillman Street, where he saw a dark blue or green Ford Focus automobile racing up the street. This person also told the police that the driver was a black male wearing a black “doo rag.” He was unable to see the driver's face or whether other individuals were in the vehicle.

In their interviews with Tito's family and friends that night, the police elicited information suggesting a motive for the shooting and the possible identity of the perpetrators. The police were told that on October 19, 2003, a month prior to the shooting, Tito and some of his friends had been involved in a brawl at a local restaurant. The combatants were two groups of individuals, one group associated with Tito and the other with the defendants. During the fracas, Hunt suffered a serious head injury

and was said to be angry and bent on taking revenge. Pittman, also present that night, was angry because of the injury to Hunt, his associate.

Prior to the fight, Pittman and Tito had been friendly; after the fight, their relationship became hostile. Pittman was also upset with Tito because he heard that Tito was bragging that his group had gotten the better of Pittman's group. Tito stopped associating with Pittman, and he told his friends he was afraid of Pittman and his group.

The hostilities continued into the weeks leading up to the shooting. Two days after the fight, Pittman, Hunt, and some of their friends went to a house frequented by Tito and his friends. The owner of the house, the sister of one of the combatants on Tito's side, refused to open the door and threatened to call the police. Pittman and his group left. Tito became aware of Pittman's presence and ran out of the back door to avoid a confrontation.

After the fight, but before the shooting, Hunt went by Tito's house. He accosted Tito's downstairs neighbor, mistaking him for Tito. Hunt told the neighbor that he should tell Tito that he (Hunt) was coming back to get him. Because of this and other threats, one of Tito's friends gave Tito a gun for protection.

Members of the Gonzalez family and other individuals implicated the defendants more directly in testimony about events occurring on November 20, 2003, the day of the shooting. In the early afternoon of that day, Tito and some of his friends were visiting with another friend, who lived just up the street from Tito's residence. At or around 5:00 p.m. , Tito received a call on his mobile telephone (mobile phone) from Pittman and several of his associates. Tito activated the speaker so that his friends could hear the conversation. They heard a voice, identified by Tito as that of Pittman, tell Tito that today was the day he was going to die. Pittman also warned Tito to “bring your heater [gun] home with you tonight because we are going to kill you.” Tito was told to come to the Bullard Street area where Pittman and his associates congregated and that if he did not do so, the group would go to his mother's house to get him. The shooting occurred just an hour or so later near Tito's residence.

After the shooting, Pittman called Tito's mobile phone while the family was still at the hospital. There was evidence before the grand jury that Pittman taunted Tito's sister about what had just happened to Tito, asking, “How do you feel now that he's dead? How does it feel that he is dead, that we killed him?”

In the hour after the shooting, Pittman, Hunt, and a third man, known to the police as Rakeem “Ty” Wallace, appeared at the third-floor apartment of Corey Hubbard, one of their associates. They arrived in a dark-colored Ford Focus. The driver parked the vehicle in a concealed location near the apartment. Hubbard's second-floor neighbor heard loud footsteps headed to Hubbard's apartment and decided to go upstairs to see what was happening. Hunt had a gun in his hand. All of the men appeared to be nervous and scared.

During the conversation after the neighbor's arrival, Hunt implicated himself in the shooting, volunteering that he had to “get out of here” because “we” “just took out the kid.” There was evidence before the grand jury that Hunt said that they shot Tito “[f]rom the car” and that he (Hunt) had been driving. There was also evidence that Hunt handed the gun and the car keys to Hubbard, ordering him to get rid of the gun and clean out the vehicle. Hubbard then handed the car keys to the second-floor neighbor, who took the vehicle to a car wash and vacuumed up a shell casing he found in the back seat area. There was evidence, based on a police officer's notes from an interview, that later Hubbard wrapped the gun in a sock, tied it to a brick, and threw it into the ocean.

Within a few days of the shooting, the police linked Hunt to the Ford Focus seen leaving the scene of the shooting. They learned that Hunt had rented a blue Ford Focus from a local car dealer, and that the vehicle had not been returned after the shooting. After the police issued a BOLO (“Be On the Lookout”) bulletin for the vehicle, a police officer spotted it at a gasoline station in Taunton. Hubbard, in whose apartment the defendants gathered in the immediate aftermath of the shooting, was operating the vehicle. A search of the vehicle revealed a black “doo rag” in...