Commonwealth v. Long

• Decision Date: 24 February 2017
• Docket Number: SJC-11253
• Citation: 69 N.E.3d 981,476 Mass. 526
• Parties: COMMONWEALTH v. Deryck LONG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

476 Mass. 526

69 N.E.3d 981

COMMONWEALTH

v.Deryck LONG.

SJC-11253

Supreme Judicial Court of Massachusetts, Norfolk..

Argued October 11, 2016.

Decided February 24, 2017.

Robert F. Shaw, Jr., Cambridge, for the defendant.

Pamela Alford, Assistant District Attorney (Craig F. Kowalski, Assistant District Attorney, also present) for the Commonwealth.

Present: Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ.

GAZIANO, J.

A Superior Court jury found the defendant guilty of murder in the first degree, on a theory of deliberate premeditation, in the shooting death of Jamal Vaughn (victim) on January 9, 2006, in Quincy. Before us is the defendant's appeal from his convictions and from the denial of his motion for a new trial. He claims that his trial counsel's uninformed decision not to introduce cell site location information (CSLI) to contradict the testimony of a key prosecution witness constituted ineffective assistance of counsel, and that it was error for a motion judge to deny his pretrial motion to suppress the testimony of the same witness because the Commonwealth had obtained his testimony as a result of an illegal wiretap that this court previously had ordered suppressed. See Commonwealth v. Long, 454 Mass. 542, 911 N.E.2d 174 (2009).

We conclude that the defendant was not deprived of the effective assistance of trial counsel, and that there was no error in the motion judge's determination that the witness's testimony was sufficiently attenuated from the suppressed wiretap evidence to dissipate the taint of illegality. Accordingly, we affirm the conviction and the denial of the motion for a new trial, and decline to exercise our authority under G. L. c. 278, § 33E, to disturb the verdict.

1. Facts. We recite the facts that the jury could have found, reserving certain facts for our analysis of the particular issues.

From late 2005 to early 2006, the defendant would frequently stay with his girl friend, Janet Ojo, at her house on Franklin Street in Quincy. About two weeks before the shooting, the defendant and Ojo got into a dispute over money and she ended the relationship.

On the evening of January 9, 2006, the defendant asked Courtney Forde to drive him to Ojo's house to pick up some belongings that he had left behind. Forde picked the defendant up in his minivan. He also brought along his friend and drug dealing associate, Paul Brown, and a woman whom Forde had recently met.

When they arrived at Ojo's house, the defendant got out of the vehicle and went inside. Ojo was not home, but the defendant encountered a few of her friends, including the victim. The defendant and the victim got into a fistfight about some money that Ojo maintained the defendant had stolen from her. The fight spilled outside to the front yard. Brown got out of the minivan and attempted to tear off a door from a vehicle parked in the driveway. Now outnumbered, the victim ran inside the house. The defendant tried to re-enter the house and tossed a brick through one of the windows.

The defendant and Brown got back into the minivan and Forde drove a short distance down the street, then stopped the vehicle because the defendant had remembered that he had left some "IDs" behind in a shoebox. Forde, the defendant, and Brown walked back to the house. The victim was outside and ran back into the house when he saw the three approaching.

Forde drove back to Boston. Along the way, he dropped off the unnamed woman in Milton. Forde stopped at the house in the Mattapan section of Boston where the defendant was staying at that time, and the defendant was able to find his keys to Ojo's house. Forde, the defendant, and Brown returned there. This time, nobody was home. The three entered using the defendant's keys and took numerous items, some belonging to the defendant and some belonging to Ojo, including women's clothes, food, and electronics. They also took two handguns stored in a shoebox, a revolver and a "rusty" Tec-9 semiautomatic pistol. The defendant put the revolver "on his waist."

The defendant then directed Forde to drive to an apartment building on Willard Street in Quincy, where, Forde knew, the defendant had stayed with Ojo in the past. As they approached the building, Forde called two of his drug customers, who lived there. He intended to ask one of them to open the back door so that the defendant could enter the building. Neither answered.

Forde backed the minivan into a dimly-lit spot near some trees, far from the entrance to the building. At the same time, the victim left the building to retrieve a package of cigarettes from his vehicle. The defendant and Brown got out of Forde's vehicle, walked quickly over to the victim, and shot him several times.¹

At around midnight, a neighbor at the Willard Street building telephoned 911 to report hearing gunshots. Police and emergency services responded to the scene, where they discovered the victim with three gunshot wounds

. He was transported to a hospital where he was pronounced dead.

Police recovered two spent projectiles, fired from two different weapons, from the victim's body, and seven shell casings, all of which came from the same nine millimeter pistol. They also found on the ground near the victim's jacket a spent projectile that was "mostly" consistent with having been shot from a revolver.

After the shooting, Forde drove to back to his house in Boston from Quincy. Forde then went to the house of one of his friends, where the three men unloaded all of the items taken from Ojo's house, including a shoebox containing a rusty firearm and its magazine.

2. Discussion. a. Ineffective assistance of counsel. The defendant argues, as he did in his motion for a new trial, that his trial counsel was constitutionally ineffective. He contends that counsel should have introduced CSLI evidence to challenge the testimony of Forde, who testified pursuant to a plea agreement, concerning his whereabouts during a specific period of time near the time of the shooting. The defendant also maintains that counsel failed to investigate, and did not understand, the significance of the CSLI evidence.²

In reviewing a claim of ineffective assistance in a case of murder in the first degree, we apply the more favorable standard of review of a substantial likelihood of a miscarriage justice, pursuant to G. L. c. 233, § 33E. See Commonwealth v. Vargas, 475 Mass. 338, 358, 57 N.E.3d 920 (2016). Under this standard, "[w]e consider whether there was an error in the course of the trial (by defense counsel, the prosecutor, or the 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, ––– U.S. ––––, 136 S.Ct. 418, 193 L.Ed.2d 328 (2015). Where the defendant's ineffective assistance claim is based on a tactical or strategic decision, we apply the more rigorous standard that, to be ineffective, the attorney's decision must have been "manifestly unreasonable." Commonwealth v. Lang, 473 Mass. 1, 14, 38 N.E.3d 262 (2015).

i. Failure to introduce exculpatory CSLI evidence. The defendant argues that portions of the CSLI evidence that was not introduced at trial would have served to challenge, and discredit, a portion of Forde's testimony about his actions following the confrontation with the victim at the Franklin Street residence, and before the return there later that evening. He contests the accuracy of Forde's testimony that he and the defendant left Franklin Street, traveled to Mattapan for a brief period of time, and then returned to Franklin Street, without mentioning any stops along the way, particularly other stops in Mattapan and the Dorchester section of Boston. The defendant points to CSLI evidence showing that Forde's telephone was absent from Quincy for more than one hour, and traveled to several locations in Mattapan and Dorchester during that time frame.³ He argues that trial counsel was ineffective because he failed to introduce this independent evidence to discredit Forde's testimony.

The judge determined that, while Forde's credibility "was an essential issue for the jury" because of his "indisputably critical" role in the Commonwealth's case, the defendant failed to establish that the decision not to use the CSLI was manifestly unreasonable. The judge noted that the CSLI was a double-edged sword that both called into question Forde's earlier timeline and placed the defendant at the scene of the shooting. In addition, the judge concluded that trial counsel effectively challenged Forde's credibility through rigorous cross-examination.

We afford particular deference to a decision on a motion for a new trial where the motion judge was also the trial judge, see Commonwealth v. Forte, 469 Mass. 469, 488, 14 N.E.3d 900 (2014), and discern no abuse of discretion in this case. The CSLI evidence did not materially impeach Forde's trial testimony. Forde did not specify how long he, the defendant, and Brown were in Boston between the two trips to Quincy. He testified, without providing any time frame, that they left Franklin Street, went to Milton to drop off the woman who had been with them, went to the house where the defendant was staying in Mattapan where the defendant went inside for five minutes to get his keys, from there went to a liquor store, and then drove back to Quincy.

Forde's cellular telephone, according to the CSLI evidence, was in Quincy at 9:48 P.M. ; Mattapan and Dorchester from 10:17 through 10:45 P.M. ; and again in Quincy or Braintree from 11:19 P.M. until at least 11:52 P.M. Police received the 911 call concerning shots fired in Quincy at 11:55 P.M. The CSLI evidence thus contains a period of approximately twenty to twenty-five minutes that Forde did not describe during his trial testimony.⁴

The CSLI evidence may have cast some doubt on Forde's testimony concerning his whereabouts in Boston during that discrete time period. The problem with the evidence, however, is that it...