Commonwealth v. Lessieur, SJC–10784.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtHINES, J.
Citation34 N.E.3d 321,472 Mass. 317
Docket NumberSJC–10784.
Decision Date27 July 2015

472 Mass. 317
34 N.E.3d 321



Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 10, 2015.
Decided July 27, 2015.

34 N.E.3d 323

Leslie W. O'Brien, Boston, for the defendant.

34 N.E.3d 324

Crystal Lee Lyons, Assistant District Attorney, for the Commonwealth.




On March 17, 1994, Mark Jones was shot twice in the head and died from his injuries. In April, 2006, Nolyn Surprenant (Surprenant) implicated himself and the defendant in the murder. Surprenant was indicted for murder two months later. In March, 2007, Surprenant made an agreement with the Commonwealth to testify against the defendant in exchange for a recommendation of five years in State prison on a manslaughter charge. The defendant was subsequently indicted and, following a jury trial in the Superior Court, was convicted in October, 2009, of murder in the first degree on the theory of deliberate premeditation and also of unlawful possession of a firearm.1 On May 2, 2011, the defendant filed a motion for a new trial under Mass. R.Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001), which was denied. The appeal from the denial of the motion was consolidated with the defendant's direct appeal.

Represented by new counsel on appeal, the defendant challenges: (1) the admission of multiple prior consistent statements; (2) the effectiveness of trial counsel in failing to object to the admission of certain evidence and failing to impeach a witness; (3) the prosecutor's closing argument; and (4) the viability of the conviction based on uncorroborated testimony and newly discovered evidence. We affirm the defendant's convictions and the denial of his motion for a new trial, and discern no basis to exercise our authority pursuant to G.L. c. 278, § 33E.

Background. We recite the facts the jury could have found based on the Commonwealth's case. The defendant and Surprenant first met in 1989, when the defendant moved into the foster home where Surprenant, then fourteen years of age, lived. The two became very close and Surprenant began selling drugs for the defendant two or three years later. Surprenant dropped out of high school and moved out of the foster home and into the apartment

that the defendant shared with his girl friend, Stacy Cruz. The three spent a lot of time in the Chelmsford Street Projects in Lowell, and a group of people gathered at a house nearby, owned by Carol Ayotte, to sell, buy, and consume drugs.

The defendant and Surprenant both knew the victim, although the victim was part of a different social group. The victim had a reputation for violence and threatened to rob the defendant about two weeks before the murder. The victim was murdered on March 17, 1994.

Mark Beaulieu, then a resident of the University Heights apartment complex off Skyline Drive in Lowell, witnessed some of the events that occurred at the scene that evening. He was outside of his apartment with his wife at about 6:55 p.m. , clearing snow off their vehicle. He noticed a vehicle parked with the engine running near the dumpster area of the complex and someone in the driver's seat. He heard two gunshots fired a few seconds apart, which brought his attention back to the dumpster area. Beaulieu saw someone come out from the side of the building near the dumpster and get into the passenger seat of the vehicle. He approximated

34 N.E.3d 325

that, based on the roof line of the vehicle, the passenger was “no taller than six feet” and had shorter hair, but was not able to describe any other details of the driver or passenger. The vehicle then turned to leave the apartment complex.

Beaulieu and his wife got into their vehicle and followed the departing vehicle. He could not get a clear view of the license plate, but described the vehicle as “Toyotaish, ... Japanese make older boxy.” Beaulieu eventually turned around and returned to the apartment to call the police.

The victim was found in the early morning hours of March 18, 1994, lying face up in the dumpster area of University Heights. He was fully clothed, except that his penis was outside of his pants. The first officers dispatched, at 7:16 p.m. on March 17, did not find the victim's body because the area was very dark and covered in deep snow. After a second dispatch, emergency medical technicians arrived shortly after midnight and located the victim. The victim had been shot once on the left cheek and once on the back left side of his head near his neck. Either shot would have killed him, and he likely died in seconds.

Police officers interviewed fifty to one hundred people during their investigation, but did not establish any concrete leads. They did not talk to Surprenant during their initial investigation.

Twelve years after the murder, in April, 2006, two police officers went to the house that Surprenant shared with his pregnant

wife to talk to him. The police officers asked Surprenant if he would come with them to talk, which he understood to be in regard to the death of the victim. Surprenant asked if he would be coming home that night, and the officers said that he would. The officers drove him to Skyline Drive, where he described the victim's murder to them. Surprenant told the officers that on the evening of the murder, the defendant called Surprenant at the apartment they shared at about 6 p.m. and asked him to retrieve a gun from a reclining chair in the defendant's bedroom. The defendant explained that the victim was with him at the Chelmsford Street Projects. Surprenant eventually found the gun and took it to Ayotte's house. He drove the defendant's blue Toyota Corolla automobile.

The defendant met Surprenant outside Ayotte's house. The defendant explained to Surprenant that he and the victim would get into the vehicle with Surprenant and expounded, “I told [the victim] I was going to take him to my dealers.”2 The victim sat in the back seat of the vehicle and the defendant sat in the passenger seat. The victim thought they were going to the defendant's drug dealer to rob him. The defendant asked Surprenant to stop at a convenience store. During this stop, Surprenant gave the defendant the gun while the victim was not looking.

The three got back into the same seats in the vehicle and, following the defendant's directions, Surprenant drove to University Heights. The defendant asked Surprenant to park next to the dumpster and got out of the vehicle, stating that he was going to “take a piss.” The victim said he would go with the defendant. Surprenant stayed in the driver's seat and turned the vehicle's lights off; he left the engine running.

34 N.E.3d 326

The defendant and the victim walked toward the side of the building. About three to four minutes later, Surprenant heard two gunshots fired about three to five seconds apart. About thirty seconds later, the defendant came back to the car alone and Surprenant drove out of the apartment complex. The defendant said that he “shot [the victim] while we was taking a piss while he had his dick in his hand.” The defendant said he shot the

victim in the head and the face, but that he wanted to go back and make sure the victim was dead. The two drove to their former foster home, where they stayed for approximately five minutes before Surprenant recommended that they go to the Tyngsboro bridge and dispose of the gun. Surprenant parked near the bridge and the defendant walked up and threw the gun off the side. Surprenant drove back to their apartment.

Surprenant continued to sell drugs for the defendant until August, 1994, when Surprenant was arrested for selling cocaine. Although he and the defendant remained friends, the two never discussed the murder except for the first couple of weeks following the murder, when the defendant told Surprenant that he told a couple of people that he killed the victim. Surprenant told his former girl friend, Kristin Tatro, about the murder in 1996 or 1997, and told his brother, Jason, and a foster brother about the murder in 1999. Jason told Surprenant never to tell anyone else about what had happened or else he would be “locked up for the case.”

In addition to the statement Surprenant made in the police cruiser, he made a video recorded statement that night at the Lowell police station. He also led the police to the Tyngsboro bridge, where the two had disposed of the gun, and the police then took him home. The following month, a warrant issued for Surprenant's arrest, and Surprenant turned himself in. Surprenant's attorney negotiated a deal whereby Surprenant would testify against the defendant in exchange for five years in State prison on a manslaughter charge. Surprenant remained in custody from May, 2006, through trial.

The defense vigorously cross-examined Surprenant regarding recent contrivance, motive to lie, and bias, highlighting the terms of the deal that Surprenant made with the prosecution and suggesting that he contrived the testimony in an attempt to keep himself out of trouble. Defense counsel also impeached Surprenant with inconsistencies in his testimony at trial, his...

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    ...a miscarriage of justice. Accordingly, counsel was not ineffective for failing to object to this testimony. See Commonwealth v. Lessieur, 472 Mass. 317, 326, 34 N.E.3d 321, cert. denied, ––– U.S. ––––, 136 S. Ct. 418, 193 L.Ed.2d 328 (2015) (claims of ineffective assistance of counsel revie......
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    ...judge) and, if there was, whether that error was likely to have influenced the jury's conclusion." Id., quoting Commonwealth v. Lessieur, 472 Mass. 317, 327, 34 N.E.3d 321, cert. denied, 577 U.S. 963, 136 S.Ct. 418, 193 L.Ed.2d 328 (2015). If a defendant's claim of ineffective assistance is......
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    ...if there was, whether that error was likely to have influenced the jury's conclusion." Vargas, supra, quoting Commonwealth v. Lessieur, 472 Mass. 317, 327, 34 N.E.3d 321, cert. denied, 487 Mass. 540 577 U.S. 963, 136 S.Ct. 418, 193 L.Ed.2d 328 (2015). Where, as here, however, the defendant'......
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