Commonwealth v. Johnson

• Decision Date: 02 August 2012
• Docket Number: SJC–10835.
• Citation: 972 N.E.2d 460,463 Mass. 95
• Parties: COMMONWEALTH v. Gary JOHNSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

463 Mass. 95

972 N.E.2d 460

COMMONWEALTH

v.Gary JOHNSON.

SJC–10835.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued April 6, 2012.

Decided Aug. 2, 2012.

Greg T. Schubert for the defendant.

Zachary Hillman, Assistant District Attorney (Gretchen Lundgren, Assistant District Attorney, with him) for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, GANTS, & DUFFLY, JJ.

CORDY, J.

On the morning of November 1, 2007, Mumin Manavoglu (Manavoglu) was shot in the face while pursuing the young man who had robbed him at gun point in the restaurant he owned in the Dorchester section of Boston. He died two days later. On May 22, 2009, a jury convicted the defendant—a young man whom the police apprehended in the area within minutes of the incident, whom two witnesses identified as the assailant, and who confessed to the crime during a police interview—of felony-murder in the first degree in violation of G.L. c. 265, § 1; armed robbery in violation of G.L. c. 265, § 17; possession of a firearm without a firearm identification (FID) card in violation of G.L. c. 269, § 10 ( a ); and possession of ammunition without an FID card in violation of G.L. c. 269, § 10 ( h ).

On appeal, the defendant contends that he is entitled to a new trial because (1) the judge erroneously denied his motion to suppress statements he made to the police during an interview conducted within hours of the robbery and shooting; (2) the Commonwealth presented false evidence regarding gunshot residue testing, which the defendant assails as “ ‘junk’ science,” that was conducted on an article of clothing found near the crime scene; (3) the prosecutor improperly elicited testimony from a police witness, who had identified the defendant, about the witness's military training on “observations,” and inappropriately incorporated this testimony into his closing argument; and (4) the prosecutor made other comments during his closing argument that impermissibly shifted the burden of proof to the defendant and inaccurately characterized evidence against him. The defendant also urges us to exercise our authority to grant him a new trial under G.L. c. 278, § 33E, because, as he views it, the Commonwealth's case relied heavily on eyewitness testimony that the defendant contends is a “notoriously unreliable” class of evidence, and which included testimony from two eyewitnesses who failed to identify the defendant as the assailant and one who affirmatively stated he was not the assailant.

After a thorough review of the record, we reject the defendant's claims and decline to grant him relief under G.L. c. 278, § 33E. Accordingly, we affirm the defendant's convictions of felony-murder in the first degree and the possession of a firearm and ammunition without an FID card. Because the armed robbery was the predicate felony for the defendant's felony-murder conviction, it is duplicative; consequently, we vacate the armed robbery conviction and remand to the Superior Court for dismissal of the indictment.¹ See, e.g., Commonwealth v. Lopes, 455 Mass. 147, 148, 914 N.E.2d 78 (2009).

Background. We recite the facts as the jury could have found them, reserving certain details for later discussion.

1. The robbery and shooting. Manavoglu and Murat Yildirim owned a small restaurant located at 140 Norfolk Street. On the morning of November 1, 2007, they were in the food preparation area, which was located behind a counter. At approximately 9:30 a.m., Yildirim ended a telephone call with a customer and noticed a man standing on the other side of the counter, pointing a gun at him. The man, who was covering his face and wearing a black or gray hooded sweatshirt with the hood on his head, demanded money. He then walked behind the counter, past Manavoglu, and stood beside Yildirim. The man ordered Yildirim to open the cash register, remove its contents, and put the money in a white plastic bag.²

After taking the bag containing the money from Yildirim, the man left the restaurant. As he did so, he greeted a female customer, Amelia Smith, who had entered the restaurant during the robbery.

Manavoglu followed the man, quickly catching up with him on Norfolk Street. A struggle ensued, and Manavoglu fell to the ground. The man fired the gun. After Manavoglu lifted himself from the ground and continued toward the man, the man fired a second shot. This one struck Manavoglu in the face, causing him to fall once again. Although the shot did not kill the victim instantly, the bullet perforated his skull, ricocheted off the back of his head, and lodged in his brain.³

After the shooting, the man ran down Norfolk Street. He encountered a marked police cruiser that Boston police Officer Tamara Finley was driving up Edson Street, which intersects with Norfolk Street. Officer Andrew Heggie, Finley's partner and passenger in the cruiser, watched as the man, who was dressed in a black hooded sweatshirt, black hat, and black pants, ran down Edson Street, only to stop and turn in the other direction after seeing the cruiser. The man then continued running, crossed Norfolk Street, and ran toward an open field situated between Norfolk Street and Woodrow Avenue.

When Heggie and Finley reached Norfolk Street, they saw the victim lying on the ground and a group of people gesturing in the direction the officers presumed the man had run. The officers turned on the cruiser lights and siren and proceeded to that area, where they conducted a brief search. They returned to the restaurant without locating the man.

By this time, other officers had responded to the scene. While Finley tended to the victim, Heggie walked across Norfolk Street to continue the search. Behind a church located at 151 Norfolk Street, he discovered two items that matched the clothing he had seen the man wearing: a black hooded sweatshirt on the ground near a trash barrel and a black hat in the barrel. On the other side of a fence separating the church property from that of an automobile repair shop, Heggie also observed a firearm, magazine, and live rounds of ammunition lying on the ground. Ballistics testing revealed that this firearm had fired the bullet that struck the victim.⁴

Officer Michael Sullivan, who had responded to the scene, initiated his own search for the assailant. He jumped over a fence into the back yard of 8 Woodrow Avenue, a street that intersects with Norfolk Street across from the restaurant, and observed a pair of dark pants on the ground near a shed. He drew his firearm and approached the back of the shed, where he found a man, later identified as the defendant, “hunched over in a ball” with his “shirt over [his] head and [his] hands underneath [his] shirt.” Sullivan's partner arrived in the yard, and the officers arrested the defendant. As they placed him in handcuffs, Sullivan rested his hand on the defendant's chest and felt that his heart rate “appeared fast.”

The officers then escorted the defendant to the crime scene, where they conducted identification procedures with various witnesses to the robbery and shooting. Heggie identified the defendant as the man he had seen from the police cruiser fleeing the scene. Barbara Delaney, a woman who had witnessed the struggle and shooting from her automobile, positively identified the defendant as the culprit; Yildirim and Mohamed Horyani, an employee of the restaurant who witnessed the shooting from the sidewalk in front of it, were unable to do so; and Smith, the woman who had entered the restaurant during the robbery, told the police they had “the wrong guy.” Alexandria Veiga, a young woman who lived in the neighborhood and had known the defendant for “[a]lmost two years,” also testified that she saw the defendant standing in front of a store adjacent to the restaurant at approximately 9:20 or 9:25 a.m., just a few minutes before the robbery.

Once the identification procedures were complete, officers transported the defendant to a nearby police station for an interview. The interview, which was audiotaped, lasted just over one hour and culminated in the defendant admitting that he had committed the robbery and shooting.

2. The defendant's statements. The interview was the primary focus of the motion to suppress and was played, in its entirety, at trial. To avoid repetition, we recite facts that were presented by the Commonwealth at an evidentiary hearing on the motion to suppress and at trial. We supplement these facts with findings of the motion judge, who was not the trial judge, and information gathered from our own review of the audiotaped recording.

After his apprehension and the subsequent identification procedures, the defendant—who was eighteen years old and in the eleventh grade—was placed in the back of a marked police cruiser. He was joined there by Sergeant Detective Joseph MacDonald, who administered the Miranda warnings after some brief preliminaries. MacDonald told the defendant, “[I]f you did something stupid or an accident happened ... this would be the time to tell us,” and asked the defendant why he had been at the shed. The defendant did not respond to the first statement, but told the detective that he had stayed in the yard all night because he had gotten into an argument with his parents. MacDonald ended the discussion there and transported the defendant to the police station.

At the station, the defendant was brought directly to an interview room, where he was met by Detectives Brian Black and Kevin Magoon.⁵ After introductions, Black turned on a digital audio recorder, which he did not turn off until the interview was concluded, and obtained the defendant's consent to record the interview. Like MacDonald, Black then administered the Miranda warnings. He read each warning as it appeared in a form presented to the defendant, confirmed that the defendant understood each right, and had the defendant signify this understanding by writing his initials on the form after each individual right was discussed. The defendant...