Commonwealth v. Julian M. Green.
| Citation | 92 Mass.App.Ct. 1102,87 N.E.3d 1200 (Table) |
| Decision Date | 04 August 2017 |
| Docket Number | 10-P-2086 |
| Parties | COMMONWEALTH v. Julian M. GREEN. |
| Court | Appeals Court of Massachusetts |
A jury convicted the defendant, Julian Green, of murder in the second degree and other crimes2 after the shooting death of Jacques Sellers. The trial judge subsequently denied the defendant's motion for a new trial. In this consolidated appeal, we affirm the judgments and the order denying the new trial motion.
Background. We outline the facts in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), reserving some specifics for later discussion. On the evening of July 18, 2007, shots from two different guns were fired into the residence at 36 General Patton Drive in Hyannis, where several people were gathered, killing the victim. Carrie Perry, who was in the house and heard the shots, lifted the shades of her bedroom window and saw "two young black Americans in jean shorts with hoodies on" running "right in the middle of the road where it was all bright." She did not see either man's face and "couldn't identify who [they] really [were]."
Jessica Schwenk, the defendant's girl friend at the time of the shooting, testified that she was with the defendant at her grandmother's house in West Dennis in the early evening hours of July 18 when the defendant said that his friend, Anthony Russ, "needed him" in Hyannis. Schwenk drove the defendant to Yarmouth, where she dropped him off at a hotel. She then drove to General Patton Drive in Hyannis, as the defendant had instructed her.
Schwenk had previously seen the defendant with a "silver gun," specifically, "[a] revolver." A few days earlier, the defendant had left his gun with Jill Parsons in a brown paper bag on a shelf in the garage of her house in South Yarmouth. On the evening of the shooting he called Parsons and asked her "[t]o grab the thing that was in the garage" and bring it to him at the CVS pharmacy down the street from her. Parsons wrapped the paper bag with the gun in it in a sweatshirt, and a friend drove her to the CVS. The defendant, who was there with Schwenk, took the bag, thanked Parsons, and got back into Schwenk's car.
When Schwenk later arrived at General Patton Drive as instructed, she saw the defendant and Anthony Russ. One of them told her to drive her car "[t]o the next street over" and wait. Schwenk waited for a few minutes, then the defendant and Russ came back to her car. She drove them to the end of the road, where the defendant and Russ got out and ran into the woods. When Schwenk saw the defendant later that night and the following day, he told her that he had been "with Anthony [Russ]," that "he shot the house" because "he was helping a friend."
At trial, Schwenk read portions of letters that the defendant wrote to her after the shooting. The defendant wrote, He also stated, "I shot a gun four times in the house," and, "I can't stop thinking about that night, me firing my gun with that clown." Although he admitted, "what I did that night was wrong," he wrote that someone else He continued in this vein, "I also found out that the gun I ‘used’ wasn't the gun that killed the kid."3 One of the letters was signed, "
The defense at trial was that Todd Lampley and Devarus Hampton, not the defendant and Russ, were responsible for the shooting. In this regard, defense counsel elicited testimony from Carrie Perry on cross-examination that the two men she saw fleeing from the crime scene resembled "Todd and Baby Bro," that is, Lampley and Hampton. Rodney Ferguson, who visited 36 General Patton Drive "[p]ractically every day," and was in the house at the time of the shooting, had beaten up Lampley "a few times" for "putting his hands on [Ferguson's] daughter's mom." Although he did not see the shooter, Ferguson testified on cross-examination that it was his "personal belief" that the "Mississippi guys," Lampley and Hampton, fired the shots into the house because of Ferguson's problem with Lampley. Hampton, testifying under an order of immunity, confirmed during cross-examination that Lampley had a "beef" with Ferguson.
Hours after the shooting, a Barnstable police officer assigned to the canine unit positioned his dog in the driveway across the street from 36 General Patton Drive, the "last known area of the suspects." The dog tracked the scent to 23 General Patton Drive, Lampley's residence, where it lost the scent.
Discussion. 1. Newly discovered evidence. During the defendant's trial, the Commonwealth obtained an order of immunity to allow defense counsel to cross-examine Hampton. Still, Hampton was a recalcitrant witness and testified repeatedly that he did not recall the events of July 18. Hampton denied that Lampley ever told him that a police dog had tracked Lampley's scent to his house that night. In his new trial motion the defendant offered a transcript of Hampton's testimony at Russ's trial, held several months after the defendant's, in which Hampton testified that Lampley "made a statement about something about a shooting"; "mentioned something about the canine dog going to the spot where he was standing in, and he got away lucky or something"; and said that "[h]im and his—his homeboy, it sounds like they (inaudible) the situation." The defendant contends that Hampton's testimony at Russ's trial, which ended in Russ's acquittal, constitutes newly discovered evidence warranting a new trial in his case.
"A defendant seeking a new trial on the ground of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction." Commonwealth v. Grace, 397 Mass. 303, 305 (1986). Evidence is newly discovered if it was "unavailable at the time of trial and could not have been discovered with reasonable diligence." Commonwealth v. LeFave, 430 Mass. 169, 176 (1999). Newly discovered evidence casts real doubt on the justice of conviction if "there is a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial." Grace, supra at 306. In determining whether the motion judge erred in his denial of a motion for new trial based on newly discovered evidence, we "examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion." Id. at 307. "[W]e accord special deference to the action of a motion judge who was also the trial judge." Commonwealth v. Shuman, 445 Mass. 268, 272 (2005).
We discern no error of law or abuse of discretion in the judge's determination that Hampton's testimony at Russ's trial did not amount to newly discovered evidence. The fundamental flaw in the defendant's claim is the fact that Hampton testified at his trial and, as the judge found, was "thoroughly cross-examined" by defense counsel. That Hampton later testified to a different version of events does not transform the later testimony into newly discovered evidence.
Even if Hampton's later testimony amounted to newly discovered evidence, the defendant has not demonstrated that "the new evidence offered create[d] a substantial risk that a jury exposed to that evidence would have reached a different conclusion." Commonwealth v. Markham, 10 Mass. App. Ct. 651, 654 (1980) (footnote omitted). In evaluating whether the jury would have reached a different conclusion had the newly discovered evidence been admitted at trial, "the evidence said to be new not only must be material and credible but also must carry a measure of strength in support of the defendant's position." Grace, supra at 305 (citation omitted).
The judge found that Hampton was a man of "questionable character," whose conflicting testimony concerning his understanding of immunity was an attempt to "shield himself from perjury and allow him to sow doubt in both cases." "[T]he motion judge properly ‘[took] into account his knowledge of what occurred at trial [in order to] assess questions of credibility.’ " Commonwealth v. Spray, 467 Mass. 456, 472 (2014), quoting from Commonwealth v. Ortiz, 393 Mass. 523, 536-537 (1984). See Grace, supra at 310 (). If Hampton "were to testify at a new trial, his credibility would be damaged in such a way by earlier testimony that his new testimony would be relatively worthless." Commonwealth v. Waters, 410 Mass. 224, 231 (1991), quoting from Ortiz, supra. The judge did not err in finding no substantial risk that Hampton's testimony at Russ's trial would have affected the verdicts at a new trial for the defendant.
2. Ineffective assistance of counsel. The defendant also contended in his new trial motion that trial counsel was ineffective for failing to introduce a statement attributed to Lampley concerning Lampley's alibi. Lampley told the police officers who interviewed him after the shooting that on the evening of the murder, he had gone for a walk in the neighborhood with his girl friend and some of her friends, returned to his residence at 23 General Patton Drive, and watched movies. Lampley later took a polygraph test. On the "Polygraph Unit Database Information Form," State police Sergeant Christopher Dolan, who administered the test, wrote, "During the post test interview the examinee admitted to lying about his alibi." However, despite defense counsel's vigorous and repeated efforts to elicit Lampley's admission that he lied about his alibi or that he said so to Dolan, Lampley refused to make any such admission.
After Lampley testified at trial, defense counsel indicated that he...
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