Commonwealth v. Jones

• Decision Date: 08 September 2000
• Citation: 432 Mass. 623,737 N.E.2d 1247
• Parties: (Mass. 2000) COMMONWEALTH v. PHILLIP JONES. 07664 Suffolk County Argued:
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

737 N.E.2d 1247 (Mass. 2000)

COMMONWEALTH v. PHILLIP JONES.

07664

Massachusetts Supreme Court

Suffolk County

Argued: September 8, 2000.

Decided: November 16, 2000.

Accessory and Principal.Homicide.Evidence, Prior inconsistent statement.Practice, Criminal, Argument by prosecutor, New trial, Capital case.

Indictment found and returned in the Superior Court Department on November 1, 1995.

James A. Couture for the defendant.

Cathryn A. Neaves, Assistant District Attorney, for the Commonwealth.

The case was tried before Robert W. Banks, J., and a motion for a new trial, filed on January 11, 1999, was heard by Elizabeth B. Donovan, J.

Marshall, C.J., Greaney, Ireland, Spina, & Sosman, JJ

MARSHALL, C.J.

A jury found the defendant guilty of being an accessory before the fact to murder in the first degree committed with deliberate premeditation.He contends on appeal that (1) the trial judge erred in denying his motion for a required finding of not guilty; (2) the judge erred by failing to instruct the jury on the effect of prior inconsistent statements adopted by a witness as true; (3)the prosecutor's closing argument was prejudicial; and (4) the judge erroneously instructed the jury concerning manslaughter.He requests that we exercise our authority under G. L. c. 278, 33E, to reduce his conviction.¹In addition, the defendant appeals from the denial of his motion for a new trial based on newly discovered evidence, as well as from the denial of his request for an evidentiary hearing on that motion.The two appeals have been consolidated.We affirm the conviction and the denial of the motion for a new trial.We decline to exercise our authority under G. L. c. 278, 33E, in favor of the defendant.

Order denying motion for a new trial affirmed.

1. Background.

We recite the facts in their light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with the issues raised.On September 5, 1995, two Boston police officers responded to a radio dispatch to go to Navillus Terrace in the Dorchester section of Boston.They found the victim lying motionless on the street, and discovered a knife nearby on the ground.The victim died from a single gunshot wound.

There was evidence that the defendant was the leader of a gang, the "Navillus Terrace Lions"(Lions).The defendant was angry with the victim because the victim owed him money.The defendant also believed that the victim had joined a rival gang and arranged the shooting of Kevin Scott, a member of the Lions.

Corey Walker, a witness for the Commonwealth, testified that, while he was incarcerated at the Suffolk County house of correction at South Bay, he learned about the Lions from his cellmate, Willie Scott, also a Lions member and the brother of Kevin Scott.While in jail Walker also learned of the shooting of Kevin Scott, and the victim's alleged involvement in the shooting.Shortly after Walker was released, he became a member of the Lions.The defendant discussed with Walker his problems concerning the victim.

The day the victim was shot, Walker was on his way to work when he encountered Kevin and Willie Scott.The three men decided to take the day off.They later met the victim while on their way to Navillus Terrace.The Scott brothers and Walker confronted the victim about his alleged involvement in Kevin Scott's shooting, telling him that the defendant thought the victim had arranged it.The four men argued as they proceeded to Navillus Terrace.When they reached the Terrace they found the defendant on his front porch.The victim and the defendant began arguing.There was evidence that the defendant retrieved from his apartment a .357 magnum revolver that he gave to Walker.Shortly afterward Walker shot the victim in circumstances we describe later.²

2.Motion for a required finding of not guilty.The defendant challenges the denial of his motion for a required finding of not guilty, asserting that the Commonwealth's evidence was insufficient to permit the jury to conclude that each element of the offense had been proved beyond a reasonable doubt.There was no error.In reviewing the judge's denial of the motion we consider the evidence presented up to the time of the motion, in its light most favorable to the Commonwealth, and decide whether the evidence is "sufficient . . . to permit the jury to infer the existence of the essential elements of the crime charged."Commonwealth v. Latimore, 378 Mass. 671, 677(1979), quotingCommonwealth v. Sandler, 368 Mass. 729, 740(1975).We"must find that there was enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt."Commonwealth v. Latimore, supra at 677-678.In so doing, we resolve all questions of credibility in favor of the Commonwealth.Cramer v. Commonwealth, 419 Mass. 106, 110(1994), and cases cited.That some of the evidence may be contradictory or equivocal is not relevant to our determination.Commonwealth v. Christian, 430 Mass. 552, 555(2000).

In order to obtain a conviction under G. L. c. 274, 2, the Commonwealth was required to establish beyond a reasonable doubt that the defendant"associate[d] himself with the venture . . . participate[d] in it as in something that he wishe[d] to bring about . . . [and sought] by his action to make it succeed."Commonwealth v. Stout, 356 Mass. 237, 241(1969).³The Commonwealth presented evidence showing that the victim was swearing and arguing with the defendant and others in front of the defendant's house, and that witnesses knew that he was armed with a knife.As the victim stood yelling, the defendant told the victim, "I can't stand you, man.I always wanted to do something to you."The defendant then called Walker up to his porch, handed him the gun (a .357 magnum) and told him this "will do the job," and to "do what you got to do" to make the victim stop arguing.Walker returned to the vicinity of the victim with the gun under his shirt and waited for the defendant to indicate when to shoot.The defendant first gave a negative shake of his head, because his neighbor was on her porch across the street.Shortly afterward, when his neighbor had left, he gave an affirmative nod, whereupon Walker shot the victim and fled.A few days later, the defendant confided to Steven Wilcox that he had provided Walker with a gun, had told him to kill the victim, and had nodded at Walker when it was time to shoot.

This evidence would permit a rational trier of fact to conclude that the defendant ordered Walker to shoot the victim, having provided him with the weapon and instructed him when it should be fired.It would also permit a jury to conclude that Walker acted with deliberate premeditation and that the defendant shared Walker's mental state, a specific intent to shoot the victim: Walker took the gun offered by the defendant, listened to the defendant's instructions, returned to the victim, and, on the defendant's signal, shot the victim.

3.Jury instructions regarding prior inconsistent statements by a witness.The defendant asserts that the judge gave inadequate instructions on the effect of Walker's prior inconsistent statements adopted by him at the trial as true.⁴The defendant claims that Walker, while testifying, adopted as true a prior inconsistent statement he had made to the police in which he had said that, during his confrontation with the victim, he feared for his life.This statement is significant because it could have been interpreted by the jury as evidence that the shooting was manslaughter or self-defense.Because it is not possible to be an accessory before the fact to manslaughter, Commonwealth v. Chiovaro, 129 Mass. 489, 493(1880), or to a killing committed in self-defense, such a finding by the jury would have resulted in an acquittal of the defendant.

Prior inconsistent statements of a witness generally may be used for the limited purpose of impeaching a witness.SeeCommonwealth v. Daye, 393 Mass. 55, 66(1984).But where a witness, while on the stand, plainly or unequivocally adopts an earlier inconsistent statement as true, the adopted statement acquires full probative value.Commonwealth v. Fiore, 364 Mass. 819, 823-824(1974).SeeCommonwealth v. Daye, supra at 67 n.13.However, if the witness later contradicts his adoption of the prior inconsistent statement, the prior statement does not acquire full probative value.Commonwealth v. Campbell, 352 Mass. 387, 395(1967).

Because Walker wavered many times in his testimony on whether he felt afraid during his confrontation with the victim, the judge acted well within his discretion in refusing to provide the requested instruction.Commonwealth v. Carrion, 407 Mass. 263, 269(1990), and cases cited.On direct examination, Walker testified that he shot the victim because the defendant ordered him to do so, not because he feared for his life.During cross-examination, when asked whether he thought the victim was going to kill him, Walker replied, "Yes and no."Moments later, Walker testified that he shot the victim because the defendant"gave [him] a nod."Within seconds, he testified that he had feared for his life.Walker immediately retracted that statement, saying that he was just "following orders" when he shot the victim.Walker then responded to defense counsel one last time that he felt his life was in danger.On redirect examination, Walker offered his ultimate words on the matter, testifying that he shot the victim "for one reason and one reason only," because the defendant told him to do so.The judge correctly noted that Walker changed his testimony at least five times.

While it appears that, at some point during his trial testimony, Walker may have adopted his prior statement, it cannot be said that the adoption was unequivocal.The judge did instruct the jury that they could "take into consideration any inconsistent statements that may have been made on other...