Commonwealth v. Johnson

• Decision Date: 21 October 2020
• Docket Number: SJC-09999
• Citation: 155 N.E.3d 690,486 Mass. 51
• Parties: COMMONWEALTH v. Curtis McIrving JOHNSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

486 Mass. 51

155 N.E.3d 690

COMMONWEALTH

v.Curtis McIrving JOHNSON.¹

SJC-09999

Supreme Judicial Court of Massachusetts, Worcester..

Argued March 6, 2020

Decided October 21, 2020

Michael Malkovich, Northampton, for the defendant.

Michelle R. King, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Lowy, Cypher, & Kafker, JJ.²

KAFKER, J.

In 1992, a jury convicted the defendant of murder in the first degree on the theory of deliberate premeditation.³ On direct appeal, this court reversed that conviction due to an error in the jury instructions on deliberate premeditation. See Commonwealth v. Johnson, 435 Mass. 113, 754 N.E.2d 685 (2001) ( Johnson I ). The case was remanded for a new trial. In 2003, the defendant was retried and again convicted of murder in the first degree on the theory of deliberate premeditation. The defendant subsequently filed a motion for a new trial, which was denied. This matter is now before the court on direct appeal from the murder conviction stemming from the defendant's second trial, and has been consolidated with his appeal from the denial of his motion for a new trial.

On appeal, the defendant argues error as to (1) a witness's invocation of the privilege against self-incrimination; (2) the admission of select portions of that witness's voir dire testimony in lieu of live testimony at trial; (3) the failure to deem the defendant's borderline personality disorder as indicative of a lack of criminal responsibility; (4) the failure to take into account the defendant's youth and immaturity; (5) the failure to conclude that the Commonwealth did not disclose witness inducements; and (6) the denial of the defendant's motion for funds to hire an expert witness. The defendant has also made a number of arguments pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208-209, 418 N.E.2d 585 (1981). The Commonwealth has moved to strike the defendant's Moffett brief. For the reasons discussed infra, we deny the Commonwealth's motion to strike the Moffett brief, but we nonetheless conclude that the defendant's conviction should be affirmed.

1. Facts. We summarize the facts that the jury could have found at the defendant's second trial, reserving certain details for our discussion of the legal issues.

On the evening of September 28, 1991, the defendant traveled from Springfield to Worcester by bus with his girlfriend's mother, Jannie Bynum, and his friend, Daniel Dade. The defendant had been drinking and was intoxicated. Upon his arrival in Worcester, the defendant accompanied Dade and Bynum to the home of Mary Railey, who was Bynum's sister. The defendant was noticeably drunk at the Railey residence. He vomited into the bushes in front of the house and fell multiple times.

At the Railey residence, the defendant met Bynum's son, Ronald Bynum,⁴ and Ronald's friends Edwin Montalvo and Rahim Kodjo. The defendant continued to drink during the course of the evening. Near midnight, Bynum asked her son and the others to order Chinese food from a restaurant in Worcester. The defendant got up to leave with the others, but fell on the floor. Bynum helped the defendant up and asked him not to go, given his intoxicated state, but he refused. The defendant subsequently left with Ronald, Kodjo, and Montalvo to get the food in Kodjo's automobile, a small silver Toyota.

Near midnight, the defendant and his companions entered the restaurant. The owner of the restaurant refused to serve the group and told them to leave. They began arguing with the owner, and the confrontation escalated. The defendant was the most vocal during the argument with the owner and spat in his face.

Albert Toney, who had been dining at the restaurant with a group of friends, approached the cash register to pay his party's bill around the same time that the defendant's group entered the restaurant. Toney's party included Robert Domiano, John Ellison, Veronica Joyce (Ellison's sister), Paul Ferraro, and William Hackett. Toney, an off-duty police officer, observed the escalating altercation between the youths and the restaurant owner when he neared the register. Toney approached the group, identified himself as a police officer, and asked them to leave the restaurant. The defendant turned to Toney and said, "You ain't no fucking police officer."⁵ Toney reiterated that he was in fact a police officer and again told the group to leave the restaurant. The defendant continued to insist that Toney was not a police officer. One of the defendant's companions eventually grabbed him and convinced him to leave the restaurant with them.

Toney briefly spoke with the owner of the restaurant, paid his bill, and left the restaurant with his party. As Toney and his friends left the restaurant, the teenage boys began yelling obscenities at them from outside. Toney told his friends to ignore them. Toney's party turned to the right and began heading up the sidewalk, in the opposite direction from the defendant's group.

Moments later, members of Toney's group heard footsteps running up behind them. Toney turned around to see the defendant, who pulled out a gun from underneath his jacket. The defendant said, "You ain't no fucking police officer," and shot Toney.⁶ The defendant then said to Domiano, "Are you a fucking police officer, too?" and shot him. He also shot Ellison.⁷ Domiano died moments after being shot. Toney and Ellison survived their gunshot wounds.

After shooting the victims, the defendant ran back in the direction from which he had come, entered the passenger's side of Kodjo's automobile, and left the scene with his companions. Another off-duty police officer, Jesus Novoa, subsequently spotted the defendant and two other males enter another Chinese restaurant in Worcester shortly before 1 A.M. to order food.

2. Analysis. a. Denial of funds for expert witness. Because the issue of eyewitness identification has relevance to a number of issues presently on appeal, we first address the issue as it relates to the denial of expert funds. Prior to his second trial, the defendant moved for the allowance of funds to obtain an expert on eyewitness identification, pursuant to G. L. c. 261, § 27C. The motion was denied. The motion judge concluded that the defendant had failed to demonstrate that such expert testimony would assist the jury, or that "issues of eyewitness identification testimony should not be considered to be within the traditional knowledge and function of the jury." We review the denial of expert funds under G. L. c. 261, § 27C, for abuse of discretion. See Commonwealth v. Kenney, 437 Mass. 141, 148, 769 N.E.2d 1231 (2002).

In ruling on a motion for expert funds, a judge must first determine whether retention of the expert is "reasonably necessary" to assure that the defendant can present "as effective a case as he would have if he had the financial resources to afford to pay such an expert." Edwards, petitioner, 464 Mass. 454, 461, 984 N.E.2d 276 (2013). As a general matter, "the admission of expert testimony is left to the sound discretion of the trial judge." Commonwealth v. Gomes, 470 Mass. 352, 366, 22 N.E.3d 897 (2015), S.C., 478 Mass. 1025, 89 N.E.3d 1148 (2018). In recent years, however, we have emphasized the importance of expert testimony as to eyewitness identification. Indeed, since the time of the defendant's trial, the model jury instructions have been altered prospectively to include more detailed guidance on eyewitness identification. See id. In particular, the changes to the model jury instructions emphasize the inaccuracy of cross-racial eyewitness identifications. See id. at 382, 22 N.E.3d 897 (Appendix) ("research has shown that people of all races may have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own"). See also Commonwealth v. Bastaldo, 472 Mass. 16, 25-28, 32 N.E.3d 873 (2015) (discussing circumstances in which cross-racial instruction should be given).

Despite the importance of providing this context on eyewitness identifications, however, we conclude that the denial of funds was not an abuse of discretion in the facts of the instant case. At the outset, we note that there was ample testimony, and defense counsel even conceded in closing arguments, that the defendant was among the group of teenagers inside the restaurant arguing with the owner immediately prior to the shooting. There was uncontested testimony at trial that the defendant had accompanied the other three youths to the restaurant on the evening of the shooting. Four separate individuals -- Toney, Ellison, a waitress in the restaurant, and a bartender -- also identified the defendant as the teenager arguing most vociferously with the owner in the restaurant. Three of the four witnesses further testified that the defendant spit on the owner as part of this altercation. Thus, the issue of mistaken identification primarily centers on whether the defendant was mistakenly identified as the shooter outside the restaurant immediately after this argument.

Here, both Ellison and Toney positively identified the defendant as the shooter outside. On October 2, 1991, within days of the shooting, Ellison and Toney were each shown a photographic array that contained the defendant's picture. Ellison identified the defendant both as the individual arguing inside the restaurant and as the shooter. Toney identified the defendant as being the person with whom he had argued and who had spit on the owner inside the restaurant. Approximately one and one-half months later, on November 22, Toney also identified the defendant as the shooter from a photographic array. Both men had the opportunity to observe the defendant in the restaurant for a period of minutes before the shooting, and both came within close proximity to the shooter outside. Ellison testified that he came within three feet of the shooter, while Toney testified that he came within ten to fifteen feet of the shooter.⁸ Fina...