Commonwealth v. Meas

• Decision Date: 12 March 2014
• Parties: COMMONWEALTH v. Jerry MEAS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

467 Mass. 434

5 N.E.3d 864

COMMONWEALTH

v.Jerry MEAS.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Nov. 8, 2013.

Decided March 12, 2014.

David H. Mirsky for the defendant.

Jessica Langsam, Assistant District Attorney (Elizabeth Dunigan, Assistant District Attorney, with her) for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, DUFFLY, & LENK, JJ.

IRELAND, C.J.

On December 16, 2008, a jury convicted the defendant, Jerry Meas, of murder in the first degree on a theory of deliberate premeditation and of unlawful possession of a firearm.¹ Represented by new counsel on appeal, the defendant argues error in (1) the form of the murder indictment; (2) the denial of his motion to suppress identification evidence; (3) the admission at trial of surveillance videotape recordings; (4) the judge's limitation on cross-examination of a witness on the issue of bias; (5) the judge's decision not to discharge a juror; and (6) the judge's instructions to the jury. We affirm the order denying the defendant's motion to suppress and affirm his convictions. We discern no basis to exercise our authority pursuant to G.L. c. 278, § 33E.

1. Form of indictment. Contrary to the defendant's contention, his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution were not violated on the ground that the murder indictment did not specify any theory of murder. Because the indictment in this case is in the statutory form prescribed by G.L. c. 277, § 79, it “encompasses all theories of murder in the first degree and is sufficient to charge murder by whatever means it may have been committed.” Commonwealth v. DePace, 442 Mass. 739, 743, 816 N.E.2d 1215 (2004), cert. denied, 544 U.S. 980, 125 S.Ct. 1842, 161 L.Ed.2d 735 (2005). The cases to which the defendant cites have no application here. The case of Blakely v. Washington, 542 U.S. 296, 304, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), concerns certain constitutional requirements for enhanced penalty sentencing, and Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is similarly withoutforce. See Commonwealth v. DePace, supra (“The Apprendi case was not concerned with the sufficiency of a grand jury indictment”). See also Commonwealth v. Morales, 453 Mass. 40, 52, 899 N.E.2d 96 (2009) (declining to overrule Commonwealth v. DePace, supra, and stating that form of indictment does not offend Apprendi ).

2. Suppression of identification evidence. The defendant argues that the judge ² erred in denying his motion to suppress the results of the showup identifications made in the aftermath of the shooting. He claims that the identification procedure was “unnecessarily and unconstitutionally suggestive.” After conducting an evidentiary hearing, the judge denied the motion, concluding that there was good reason to use the showup identification procedure and that the identifications did not violate due process. We set forth the material evidence from the hearing as summarized in the judge's findings of fact.

On June 13, 2006, at approximately 11 p.m., the victim was shot and killed while seated in the driver's seat of his automobile, which was parked in front of a convenience store located at the corner of Chelmsford and Westford Streets in Lowell. With the victim at the time were his friend, Vicheth San, who sat in the front passenger seat, and his niece, Vannika Pen, who was in the rear passenger seat. Other witnesses to the shooting or events surrounding the shooting included Douglas Anderson, Fernando Badillo, and Pedro Garcia Cardona.

Before the shooting, the victim parked his automobile in a spot in front of the store. Nearby there was a black Honda Accord automobile in a parking spot. The Honda's driver, who was Cambodian, and an individual seated in the rear passenger seat of that vehicle stared at the occupants of the victim's automobile. Inside the store, Badillo observed the defendant being loud and acting tough. Badillo described the defendant as an Asian male with long dark hair worn in a ponytail. Badillo observed that the defendant was wearing a bandana, black hat, black jacket, and dark-colored khaki pants.

After the defendant left the store, he approached the victim's automobile, speaking to the victim as he approached. The victim told the defendant to “calm down.”

Another passenger of the Honda, who was wearing a hat with a “B” on it, went to the passenger's side of the victim's automobile and asked San, “What up, Blood?” The defendant then raised a firearm and shot the victim. He tried to shoot the gun again, but it did not discharge and only made clicking noises. The defendant and the other individual returned to the black Honda and drove down Chelmsford Street.

Within minutes of the shooting and in response to a 911 telephone call, Lowell police officers stopped a black Honda Accord with a very similar license plate number to that which had been provided to the police. This stop occurred at the corner of Branch and School Streets, approximately four to five blocks, or one-quarter mile, from the store.

The four occupants of the Honda were ordered out of the automobile, pat frisked for weapons, and handcuffed. The officers knew the occupants as members of the “Asian Boyz” gang. In addition to the defendant, the occupants of the automobile included Phalla Nou, Yoeun Chhay, and a juvenile with the street name “Silent.” Chhay was found with a serrated knife, and a loaded gun was located on the floor of the rear passenger's side of the Honda, where Silent had been seated. A shell casing was found on the floor of the rear driver's side, where the defendant had been seated.

The police decided to conduct showup identification procedures at the location where the black Honda Accord had been stopped. This area was near a liquor store parking lot, and flood lights from that store, as well as street lights and lights from police cruisers on the scene, contributed to illuminating the location. The showups were purportedly conducted in accordance with “Eyewitness Identification Procedure Guidelines” prepared by the Middlesex County district attorney's office. There were at least six uniformed police officers in the area of the showup as well as multiple police cruisers. The four men from the black Honda were placed in a line and handcuffed behind their backs. For each of the five identification procedures that night, a “Show–Up Identification Checklist” form was used. One side of that form contained the following advisements to be given to witnesses before the presentation:

“1. You are going to be shown an individual.

“2. This may or may not be the person who committed the crime, so you should not feel compelled to make an identification.

“3. It is just as important to clear innocent people, as it is to identify possible perpetrators.

“4. Whether or not you identify someone, the police will continue to investigate.

“5. After you are done, I will not be able to provide you with any feedback or comment on the results of the process.

“6. Please do not discuss this identification procedure or the results with other witnesses in this case or with the media.

“7. Focus on the event: the place, view, lighting, your frame of mind, etc. Take as much time as you need.

“8. People may not appear exactly as they did at the time of the [e]vent, because features such as clothing and hair style may change, even in a short period of time.

“9. As you look at this person, tell me if you recognize him/her. If you do, please tell me how you know the person, and in your own words, how sure you are of the identification.”

There were check boxes next to each of the enumerated advisements to enable the officer conducting the showup to indicate which advisement was given to the witness, and the form contained signature and date lines for the witness and the officer to fill in. The other side of the form required the officer to identify himself, other officers present, and the witness, and to indicate the number of persons shown to the witness and the circumstances warranting the showup, including the proximity of the crime and the match of the description provided. The form also provided space to indicate the characteristics of the showup, including its location, the lighting, and the position of the suspects, as well as the location of police officers to the suspects and whether the suspects were wearing handcuffs. The form further provided a space for statements made during the identification procedure by other people.

From 11:11 p.m. on June 13, 2006, to at least 12:15 a.m. on June 14, 2006, five showup procedures were conducted. The first witness was Anderson, who identified Nou as the shooter. Thereafter, Anderson was not taken to the police station to provide a formal statement.

At 11:20 p.m., Badillo was next taken to the showup. Badillo recalled receiving the advisements from the police and observing six to ten cruisers and six to eight police officers in the area of the identification. He was not pressured by the police to select anyone, and he identified the defendant based on the clothing he had observed earlier. Badillo stated that the defendant was “definitely him.” Badillo was approximately two to three car lengths away when he made his identification of the defendant as the shooter.

Cardona was the third witness to view the suspects, at 11:35 p.m., and he, too, signed an advisement form. He observed six cruisers at the showup scene and made his identification from ten yards away. Cardona had heard shots while parked at the store and had observed the shooter and the vehicles. Cardona identified the defendant as the shooter, having observed that the shooter was an Asian male with long hair who wore black pants and a blue bandana around his neck.

San was the next identifying witness, at 11:53 p.m. He signed an advisement form and identified the defendant as the shooter. He specifically indicated that the...