Commonwealth v. O'neil Francis
| Decision Date | 09 November 2010 |
| Docket Number | 09-P-440 |
| Parties | COMMONWEALTH v. O'NEIL FRANCIS (and three companion cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
On March 18, 2005, Tacary Jones was shot and killed while boarding an MBTA bus in the Dorchester section of Boston. The defendants, O'Neil Francis and Ivan Hodge, were charged with his murder, see G. L. c. 265, § 1, and with carrying a firearm without a license, see G. L. c. 269, § 10(a). After a joint trial before a jury in the Superior Court, each of the defendants was convicted of both charges. We affirm.
1. Arguments specific to Francis. a. Severance. There is no merit to Francis's contention he was entitled to have his case severed from that of Hodge. The defendants did not have mutually antagonistic defenses. See Commonwealth v. Moran, 387 Mass. 644, 659 (1982). From the outset of the trial, their strategy was to advocate for their individual innocence by focusing upon contradictory testimony, lack of forensic evidence, and other alleged weaknesses in the Commonwealth's case, without implicating each other.
Even if we assume that, as the trial progressed, an implicit conflict developed as to which of them was the gunman, Francis is not entitled to a new trial. 'Where there is no compelling prejudice, there is no requirement of severance ' no matter how inconsistent or antagonistic the defenses or trial strategies of the two defendants." Commonwealth v. Twing, 39 Mass. App. Ct. 75, 78 (1995), quoting from Commonwealth v. Cordeiro, 410 Mass. 843, 853 (1988). Here, the Commonwealth presented an exceptionally strong case, based upon the testimony of numerous eyewitnesses who confirmed the presence and active participation of both defendants in the episode resulting in the victim's death. That being so, the failure to sever cannot be said to have resulted in compelling prejudice to Francis. See Commonwealth v. Stewart, 450 Mass. 25, 31 (2007), and cases cited.
b. Joint venture. The Commonwealth adduced more than sufficient evidence to prove that Francis acted as a participant in a joint venture. Eyewitnesses testified that the defendants boarded the bus together and sat down together. As the bus approached the Geneva Avenue bus stop, witnesses saw Hodge pass a camouflage knife to Francis, who passed it back to Hodge; and, when the victim and his friends boarded the bus at that stop, both defendants got up to exit and confront the victim. Shalonda Smith testified that she heard Hodge say, '[W]e've got that thing, ' and '[W]e could get him now, why wait, like, what are we waiting for, ' and 'I should shank him up, ' at which point Francis pulled out a palm-sized gun. Another witness, who was driving directly behind the bus, heard a 'loud pop, ' and saw both defendants standing outside the rear of the bus, smiling and laughing. The same witness also saw Hodge tuck a black, semiautomatic gun into his waistband or pants pocket. The defendants were observed fleeing from the scene together and later were seen running away from the place where the murder weapon was found together with an army knife and clothing matching that worn by Hodge. On the basis of this evidence, a reasonable jury could find that Francis was guilty of second degree murder and unlawful possession of a firearm regardless of who fired the fatal shot. 2
2. Arguments specific to Hodge. a. Exclusion of statement by Francis. The trial judge properly excluded evidence of Francis's statement to Hodge's family and attorney. As the judge ruled, Francis's statement did not qualify as a statement against penal interest in two respects: it was not a statement that would have subjected him to criminal liability, 3 and there were no circumstances indicating that the statement was trustworthy. See Commonwealth v. Hearn, 31 Mass. App. Ct. 707, 711 (1991). Contrary to Hodge's position, the Commonwealth's opposition to Francis's motion to suppress the statement was not inconsistent with its position at trial. At the suppression hearing, the only issue was whether the statement was made voluntarily, while at trial, the question was whether it could be introduced in evidence by Hodge. 4
b. Hodge's recorded statement. The trial judge did not err in admitting a portion of Hodge's initial, unrecorded statement to police while...
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