Commonwealth v. McAfee

• Decision Date: 28 December 1999
• Citation: 722 NE 2d 1,430 Mass. 483
• Parties: COMMONWEALTH v. MICHAEL McAFEE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

430 Mass. 483

722 NE 2d 1

COMMONWEALTH v. MICHAEL McAFEE.

Supreme Judicial Court of Massachusetts, Suffolk.

October 6, 1999.

December 28, 1999.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, & IRELAND, JJ.

Daniel J. O'Connell, III, for the defendant.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

LYNCH, J.

After being tried in the Superior Court jointly with his codefendant, Ronny Elliot, see Commonwealth v. Elliot, post 498 (1999), the defendant, Michael McAfee, was found guilty of murder in the first degree on theories of both deliberate premeditation and extreme atrocity or cruelty, armed assault with intent to murder, and illegal possession of a rifle. On appeal, he claims numerous errors warranting reversal of his convictions and an order for a new trial. Alternatively, he requests that we exercise our authority pursuant to G. L. c. 278, § 33E, to reduce the homicide verdict to manslaughter or murder in the second degree. We affirm the convictions and decline his request to reduce the verdict.

1. Facts. We recite the facts as the jury could have found them, reserving certain facts for discussion in connection with specific issues raised on appeal. On July 10, 1995, the defendant and Ronny Elliot, along with three companions, were involved in a fight at a McDonald's restaurant in the Roxbury section of Boston with another young man, Steve Clinton, nicknamed "Country." Clinton was punched and kicked by the codefendants and their companions before he managed to run into the restaurant. Alvaro Sanders, whom Clinton approached for assistance, intervened and suggested that the defendant fight Clinton one-on-one. The defendant laughed and swore at Sanders, and two of his companions approached Sanders in a threatening manner, but backed off when Sanders warned them that he, unlike Clinton, would fight back. Sanders was angry, feeling that he had been "disrespected" by the defendant, but, because he was outnumbered, left the scene in his automobile. He then sought the assistance of the victim to retaliate against the defendant and Elliot.

Approximately two hours later, Sanders and the victim located the codefendants on Walnut Avenue in Roxbury. After a brief chase — Sanders in his automobile, the codefendants on bicycles — Sanders drove the wrong way down Catawba Street, stopping in front of Elliot's house, to where the codefendants had fled. Sanders and the victim got out of the automobile. As Elliot ran inside his house, the defendant ran down an alley adjacent to the house. Moments later, Elliot emerged from the house carrying a rifle, stood on the porch, and then joined the defendant, who had reappeared from the alley, on the sidewalk behind an automobile. The victim was standing in the middle of the street, directly in front of the codefendants, at a distance of about ten to fifteen feet; Sanders was standing approximately ten feet to the victim's right. As Elliot raised the rifle and alternated pointing it at the victim and Sanders, the defendant, who was standing two or three feet from Elliot, twice yelled at Elliot, "Lace them niggers." When Elliot did not fire, the defendant took the rifle from him in a "pass and grab" motion, cocked it, pointed it at the victim and said, "Fuck this. I'm about to lace these niggers." The victim raised his hands in the air, telling the defendant, "Come downstairs and fight us up and up," meaning that the defendant should put down the rifle and fight him with fists. The defendant then shot the victim six times, once in the back, and fired once at Sanders as he ran from the scene, missing him. Someone standing near the defendant then threw a bottle at the victim, which shattered on the ground near his feet. The victim collapsed at the scene; he was later transported by emergency medical personnel to Boston City Hospital, where he was pronounced dead. The defendant, still carrying the rifle, ran down Catawba Street. Four days later, Boston police recovered a rifle in a narrow space between fences at a nearby address on Catawba Street, and ballistics tests confirmed that it matched all the shell casings found at the scene and one of the bullets that had lodged in the victim's chest; the other bullets that had struck the victim were too damaged to be linked conclusively to the rifle.

Sanders immediately reported the shooting to Boston police. He told the police that night that the shooter's first name was "Mike," but that he did not know his last name, and the next day he selected the defendant's and Elliot's photographs from photographic arrays. The defendant was arrested two days after the shooting, and Elliot eight weeks later.

2. Denials of motions for severance.

a. Mutually antagonistic defenses. The defendant argues, citing Commonwealth v. Moran, 387 Mass. 644, 659 (1982), that the judge's denial of his motions to sever his trial from Elliot's was prejudicial error because their defense theories were in irreconcilable conflict. We disagree.

Absent a constitutional requirement for severance, joinder and severance are matters committed to the sound discretion of the trial judge. See Commonwealth v. Vieira, 401 Mass. 828, 836-837 (1988); Commonwealth v. Moran, supra at 658. A judge's refusal to allow a timely motion for severance constitutes an abuse of discretion when "the prejudice resulting from a joint trial is so compelling that it prevents a defendant from obtaining a fair trial." Id. In order for such compelling prejudice to arise, it is not enough that the defendants are hostile to one another or that one defendant would have a better chance of acquittal if tried alone. See Commonwealth v. Moran, supra at 659. Rather, severance is mandated only if their defenses conflict to the point of being mutually antagonistic and irreconcilable. See id.

Here, the judge did not abuse his discretion in denying the defendant's multiple motions for severance, as the defenses offered by the two codefendants were not in conflict, let alone irreconcilable. The defendant argued that he was misidentified as the shooter by the Commonwealth's key eyewitness, Alvaro Sanders. Elliot denied being a joint venturer in the murder, claiming that his companion, whom he did not identify as the defendant, was the actual shooter; he argued, alternatively, that the shooting was in self-defense. Elliot's defense thus did not contradict the defendant's claim that he was not Elliot's companion at the crime scene and that he was the subject of wilful misidentification by a biased prosecution witness. See, e.g., Commonwealth v. Clarke, 418 Mass. 207, 217 (1994) (defenses not mutually antagonistic where one defendant claimed he was present at crime scene but not a participant, and the other defendant claimed that prosecution witnesses were not credible); Commonwealth v. Craig C., 44 Mass. App. Ct. 209, 216 (1998) (severance not warranted where defendant claimed he was merely bystander at crime scene and codefendant claimed that eyewitness had misidentified him as shooter). Moreover, both defendants vigorously attacked the credibility of eyewitness Sanders, thereby indicating that they "shared a common approach to raising a reasonable doubt" about their guilt in the jury's minds. Commonwealth v. Smith, 418 Mass. 120, 126 (1994), quoting Commonwealth v. Mahoney, 406 Mass. 843, 849 (1990). In short, this was not a case where each defendant was pitted against the other or sought to escape conviction by blaming his codefendant.¹ See Commonwealth v. Moran, supra.

Finally, even if the defendant's and the codefendant's defenses could be construed as mutually antagonistic, the judge's refusal to grant severance in the circumstances did not result in substantial prejudice to either defendant. Unlike Commonwealth v. Moran, supra at 654, 660, where the prosecution had no eyewitnesses to the crime who could testify to the presence and participation of both defendants and therefore had to rely on each inculpating the other, here the Commonwealth had an eyewitness who testified that both defendants participated in the shooting. Accordingly, the jury had the option to disbelieve both defendants' proffered defenses and to credit the testimony of the eyewitness instead. In such circumstances, we have held that any prejudice that might have resulted from a failure to sever was not sufficiently compelling to warrant appellate relief. See Commonwealth v. Gordon, 422 Mass. 816, 825-826 (1996); Commonwealth v. Cordeiro, 401 Mass. 843, 853 (1988); Commonwealth v. Sinnott, 399 Mass. 863, 874-875 (1987).

b. The Bruton issue. The judge admitted a statement that Elliot made to police after the murder, in which he denied participating in, or even witnessing, the shooting; denied any prior acquaintance with the defendant; and confirmed his previous identification of the defendant from a photograph shown to him by police. At the defendant's request, the judge twice instructed the jury that they could consider the statement only against Elliot and not against the defendant. The defendant argues, citing Bruton v. United States, 391 U.S. 123 (1968), that severance was constitutionally required because admission in evidence of this extrajudicial statement, when Elliot did not testify at trial and was thus unavailable for cross-examination, violated his constitutional right to confront adverse witnesses. Although Elliot's statement did not expressly inculpate the defendant in the murder, the defendant argues that, because the truth of this statement was effectively impeached by the Commonwealth, the jury might have inferred that the defendant's theory of misidentification was likewise not credible, thereby making Elliot's statement inculpatory of the defendant in the context of other evidence adduced at trial. In these circumstances, defendant alleges, the judge's refusal to grant severance was prejudicial error. We reject this argument.

"Where a nontestifying codefendant's statement `"expressly...