Commonwealth v. Johnson

• Decision Date: 06 April 2001
• Citation: 754 NE 2d 685,435 Mass. 113
• Parties: COMMONWEALTH v. CURTIS MCIRVING JOHNSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

435 Mass. 113

754 NE 2d 685

COMMONWEALTH v. CURTIS MCIRVING JOHNSON.

Supreme Judicial Court of Massachusetts, Worcester.

April 6, 2001.

September 14, 2001.

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

Wendy H. Sibbison for the defendant.

Harry D. Quick, III, Assistant District Attorney (Timothy J. Smyth, Assistant District Attorney, with him) for the Commonwealth.

COWIN, J.

The defendant was convicted by a jury of murder in the first degree of Robert Domiano, Jr., on the theory of deliberate premeditation. He was also convicted of assault with intent to murder John Ellison; assault with intent to murder Albert Toney, III¹; assault and battery by means of a dangerous weapon on both Ellison and Toney; unlawful possession of a firearm; unlawful possession of ammunition; and carrying a firearm without authority.²

The defendant appeals from his convictions and from the denial by the trial judge of his motion for a new trial. On appeal, the defendant makes the following claims: (1) there was insufficient evidence of deliberate premeditation of the murder of Domiano; (2) the judge erroneously instructed the jury regarding the intent necessary for premeditated murder; (3) the judge's instructions on the third prong of malice were erroneous; (4) trial counsel was ineffective (a) for failing to investigate the impact of John Ellison's illnesses and medication on the reliability of his identification; (b) in the manner in which he "mounted" the dual defenses of misidentification and mental impairment based on "explosive personality disorder"; and (c) in requesting a voir dire of a witness, Jannie Bynum, when he knew she was not likely to testify, and when the voir dire resulted in the preservation of her testimony for trial. The defendant further contends (5) that the prosecutor made an improper statement in closing argument; and (6) the judge erred in admitting, as prior recorded testimony, Bynum's voir dire testimony. Finally, the defendant requests that, if we do not order a new trial, we exercise our extraordinary power under G. L. c. 278, § 33E, to reduce the murder verdict to murder in the second degree.³

We conclude that the jury instructions in regard to the intent necessary for deliberately premeditated murder created a substantial likelihood that a miscarriage of justice has occurred, and therefore, we reverse the defendant's conviction of murder in the first degree and remand that indictment for a new trial. We affirm the remaining convictions and the denial of the motion for a new trial as it relates to those convictions.

Facts. We summarize the facts in the light most favorable to the Commonwealth, leaving the recitation of other facts to discussion in conjunction with the issues raised. On the afternoon of September 28, 1991, the defendant, accompanied by Bynum, his girl friend's mother, and his friend, Daniel Dade, traveled to Worcester by bus to visit Bynum's sister, Mary Railey, and her family at 2 Crystal Street (Railey residence). Prior to the bus trip, Dade witnessed the defendant drinking a "64-ounce" container of beer and three "wine coolers." Bynum, who saw the defendant at her home in Springfield at about 4 P.M., observed the defendant consuming a "big" bottle of beer. During the trip to Worcester, Bynum and Dade noted that the defendant was "talking loud," "running off on the mouth," and talking "nonsense."

The defendant and his companions arrived at the Railey residence in Worcester shortly after 8 P.M. The defendant continued drinking while he socialized with Dade; Jannie Bynum's son, Ronald Bynum; Edwin Montalvo; and Rahim Kodjo. At one point, the group of young men went for a drive in Kodjo's gray Toyota automobile. During the ride, Montalvo took out a gun to show the others; the defendant briefly touched the weapon, and Montalvo placed it back under his shirt.

The young men returned to the Railey residence at approximately midnight. As the defendant stepped out of the car, he fell into the bushes and Dade helped free him. About fifteen minutes later, when the group decided to order Chinese food, the defendant attempted to stand up from his chair, but, according to both Dade and Bynum, he fell to the floor. Bynum helped the defendant to his feet. Noticing that the defendant was "swinging" as he stood and more intoxicated than earlier, Bynum asked him to remain at the house. The defendant refused, and with Kodjo, Montalvo, and Ronald, proceeded to Ding Ho, a Chinese restaurant in Worcester.

At the front counter of the restaurant, the owner, John Ng, refused to serve the group. A dispute erupted that escalated to yelling. The defendant spat on the owner. A waitress testified that the defendant looked "stoned or drunk."

While the defendant was arguing with John Ng, an off-duty police officer, Albert Toney, and a group of his friends who had been eating in the dining area of the restaurant were walking toward the cash register area. This group included Robert Domiano, John Ellison, Veronica Joyce, William Hackett, and Paul Ferraro. Toney saw the defendant yelling at John Ng, who was refusing to serve the defendant's group and repeatedly asking the young men to leave.

When Toney saw the defendant spit, he showed the defendant his badge and identified himself as a police officer. The defendant turned to Toney and said, "You ain't no f____ police officer." Toney again identified himself as a police officer, and the defendant repeated, "You ain't no f____ police officer." Toney directed the defendant and his friends to leave the restaurant and the defendant retorted, "You ain't no real police officer." A brief argument ensued during which the defendant was loud, aggressive, and moving around. Toney told the defendant's companions to "take him out of here," and they did so.

Minutes later, as the Toney party left the restaurant, they noticed the defendant and his friends standing a short distance away. The Toney group turned in the opposite direction and the defendant yelled after them, "You f____ cops," or "You ain't no f____ cops." After walking approximately twenty feet, Toney, Joyce, and Ellison heard footsteps running behind them. They turned and saw the defendant about five feet away raising a handgun. The defendant pointed the gun at, verbally addressed, and then in rapid succession shot Toney, Domiano, and Ellison, each with one shot.⁴ After the shootings, the defendant ran back down the street, jumped into Kodjo's Toyota with his companions, and raced from the scene. Domiano died as a result of his gunshot wounds; Toney and Ellison survived.

Shortly before 1 A.M., Jesus Novoa (Novoa), an off-duty Southbridge police officer, observed the defendant and two other males enter another Chinese restaurant in Worcester. Novoa, who was picking up his own order of food, noted that the defendant showed visible signs of intoxication. His eyes were glassy and bloodshot; and he appeared unsteady on his feet.⁵

1. Sufficiency of the Evidence of Deliberate Premeditation. The defendant challenges the sufficiency of the evidence regarding the element of deliberate premeditation and maintains that, although there may have been sufficient evidence that the defendant planned to shoot Toney, the police officer, the evidence was insufficient as a matter of law that the defendant deliberately premeditated the killing of Domiano. We examine the evidence introduced up to the time the Commonwealth rested its case, Commonwealth v. Borans, 379 Mass. 117, 134 (1979), and apply the well-established test "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). We conclude that there was sufficient evidence of premeditation to warrant submitting the case to the jury on the question whether the defendant committed the murder with deliberate premeditation.⁶

"Deliberate premeditation means that the plan to kill was formed after deliberation and reflection. However, no particular length of time is required in order for deliberate premeditation to be found." Commonwealth v. Palmariello, 392 Mass. 126, 143 (1984), quoting Commonwealth v. Caine, 366 Mass. 366, 374 (1974). It may be a matter of days, hours, or even seconds. "It is not so much a matter of time as of logical sequence. First the deliberation and premeditation, then the resolution to kill, and lastly the killing in pursuance of the resolution; and all this may occur in a few seconds." Commonwealth v. Palmariello, supra,

quoting Commonwealth v. Tucker, 189 Mass. 457, 495 (1905). See Commonwealth v. Chipman, 418 Mass. 262, 269 (1994). Obtaining and using a weapon at close range, particularly a gun, is "sufficient generally to permit an inference of premeditation." Commonwealth v. Stewart, 398 Mass. 535, 541 (1986).

The jurors could find that the defendant, angry after an argument with Toney in the restaurant, obtained a handgun and then waited for Toney and his friends to emerge from the restaurant. The defendant then taunted them and ran after them, brandishing the weapon. Ellison, seeing the gun in the defendant's hand, said, "Hey, listen, we are not looking for trouble here." The defendant responded, "You want one of these too?" and shot Ellison. Turning to Toney, the defendant said, "You ain't no f____ cop," and shot him. As Toney fell, Domiano reached out to grab him and break the fall. The defendant then turned to Domiano, asked, "Are you a f____ cop, too?," and shot Domiano. The evidence indicated that the weapon used in the shooting was a .32 caliber revolver which required manually pulling the trigger or cocking the hammer to fire each shot. The fact that the defendant shot Domiano after shooting at least one other person (see note 4, supra) and used a weapon...