Commonwealth v. Newson

• Decision Date: 14 April 2015
• Docket Number: SJC–11471.
• Citation: 471 Mass. 222,27 N.E.3d 1282
• Parties: COMMONWEALTH v. Elbert NEWSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

471 Mass. 222

27 N.E.3d 1282

COMMONWEALTH

v.Elbert NEWSON.

SJC–11471.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 5, 2014.

Decided April 14, 2015.

Stephen Paul Maidman, Springfield, for the defendant.

Elisabeth Martino, Assistant District Attorney (Julie Higgins & David J. Fredette, Assistant District Attorneys, with her) for the Commonwealth.

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

Opinion

LENK, J.

Thomas Webb was fatally shot on September 15, 2008, while petting a neighbor's dog on a sidewalk outside an apartment building in Boston. The defendant was arrested a short time

later, after fleeing from police in a vehicle and then on foot. At trial, the Commonwealth did not offer evidence that the defendant fired the fatal shots. Instead, the Commonwealth proceeded against the defendant on a theory of joint venture with the individual who did fire the fatal shots, and who was in the vehicle with the defendant before the shooting and during the flight from police. The defendant, in turn, conceded his presence at the scene of the shooting and his involvement in the subsequent police chase. He asserted, however, that he did not know that the shooting was planned, and that his role was limited to aiding in the escape after the shooting occurred.

In December, 2011, a Superior Court jury found the defendant guilty of murder in the first degree on a theory of extreme atrocity or cruelty. The jury also found the defendant guilty of one count of possessing a firearm without a license, and not guilty of another count of possessing a firearm without a license. The defendant contends on appeal that the trial judge erred in (1) denying the defendant's motion to suppress statements that he made to police following his arrest, which were used to challenge his credibility when he testified at trial; and (2) declining to instruct the jury on the uncharged offense of accessory after the fact, which he argues deprived him of a defense. Because we conclude that there was no error, and our review of the entire record provides no basis to grant relief under G.L. c. 278, § 33E, we affirm the defendant's convictions.

1. Background. “We summarize the evidence at trial, in the light most favorable to the Commonwealth,” reserving some facts for later discussion. Commonwealth v. Deane, 458 Mass. 43, 44, 934 N.E.2d 794 (2010).

Shortly after 9 p.m. on September 15, 2008, two Boston police officers heard the sound of gunfire. One of the officers testified that he believed that the gunshots came “from two different firearms.”

Responding to the area from which the gunfire came, the officers observed a dark Nissan Maxima automobile, with tinted windows and Rhode Island registration plates, parked in the middle of Parker Street. A thin African–American man wearing a white T-shirt ran towards the vehicle's front passenger's side door and entered. The officers attempted to block the suspect vehicle using their police cruiser, but the vehicle evaded the police and drove off.

A chase ensued. While pursuing the suspect vehicle using their flashing blue lights and sirens, the officers observed an object

thrown out of the vehicle's passenger's side window. A .45 caliber semiautomatic pistol was later recovered from that spot along the chase route. The suspect vehicle eventually entered the Academy Homes housing development in Boston and stopped abruptly, and two individuals stepped out. The person who stepped from the passenger's side door was again an African–American man with a thin build wearing a white T-shirt. The person who emerged from the driver's side door was a shorter African–American man with a “stocky build,” wearing a “dark sweatshirt” and “dark jeans.”

The chase continued on foot, but the police officers lost sight of both individuals. A short time later, different police officers, responding to dispatches about the shooting and chase broadcast over the police radio, observed the defendant emerged from hedges onto a nearby sidewalk. The defendant was “sweating profusely” and “gasping for air.” He was wearing a red T-shirt and jeans. A gray hooded sweatshirt was later discovered next to some bushes and shrubbery near the location where the defendant was stopped. Approached by the officers, the defendant indicated that he was coming from the home of his girl friend, “Pookie.”

The defendant was handcuffed and taken to the homicide unit at Boston police headquarters. When detectives first approached the defendant seeking to interview him, he became ill and vomited. The defendant smelled of alcohol, and it was clear to Detective Dennis Harris, the interviewing detective, that the defendant had been drinking. Indeed, during the interview, the defendant stated several times that he was “drunk,” was feeling “nice,” and was “totaled from the junk.” He also indicated that he was “nauseous” and that his “stomach [was] bubbling.” Nevertheless, Harris testified that the defendant was not “stumbling or staggering” and “walked unassisted ... into the interview room,” and that during the interview the defendant appeared nervous but alert. During the course of the interview, which lasted approximately two hours and twenty minutes, the defendant took two breaks, was permitted to use the telephone and the bathroom facilities, and was provided water and snacks.

At the beginning of the interview, Harris read the defendant the Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the defendant initialed and signed a form confirming that the warnings had been given. The defendant also consented to have the interview electronically recorded, as urged by this court in Commonwealth v. DiGiambattista, 442 Mass. 423, 813 N.E.2d 516 (2004).

When the defendant asked near the beginning of the interview whether he was “being arrested,” however, Harris responded, “No,” indicating, “this is just an interview at this point.”

Throughout the interview, the defendant continued to assert that he had no involvement in either the shooting or the police chase, and had been with his girl friend “Pookie” prior to his arrest. He stated that “Pookie” resided in the Academy Homes housing development. He could not, however, give her address, full name, or telephone number, and could not say definitively how long he had been with her prior to being stopped by the police.

At no point during the interview did the defendant make an inculpatory statement. After Harris repeatedly exhorted the defendant to provide any information that he might have about the shooting and the police chase, the defendant asked if he could leave. Harris indicated that the defendant could not leave, because he was under arrest for possessing marijuana that had been found on his person when he was stopped by police.¹ After Harris urged the defendant once more to tell him anything that he knew about the shooting, the defendant invoked his right to counsel, and the interview concluded.

During the second break in the interview, the detectives took the defendant's clothing and provided him with other clothes to wear. The detectives also took swabbings from the defendant's hands to test for gunshot residue. In the right front pocket of the defendant's jeans the detectives found a door key to a Nissan Maxima; this key opened the vehicle abandoned near the Academy Homes housing development following the police chase. Inside the vehicle police found a cellular telephone matching a holder carried by the defendant when he was arrested. During the police interview, however, the defendant had indicated that he had left his telephone with his mother that day. Forensic examination of the vehicle's contents also identified several objects with the defendant's fingerprints. These included a .38 caliber revolver, which was found on the floor of the front passenger area and contained two of the defendant's fingerprints, along with the fingerprint of Richard Allen, a friend of the defendant. Neither the defendant's nor Allen's fingerprints, however, were found on the

.45 caliber pistol that police had seen thrown from the suspect vehicle during the pursuit. Instead, forensic examination of that pistol revealed the fingerprint of another individual, Michael Gaines.

Five shell casings were recovered from the scene of the shooting. The Commonwealth's ballistics expert testified at trial that, “to a reasonable degree of ballistic certainty,” all had been shot by the .45 caliber pistol that police had recovered along the chase route.² Five bullets or bullet casings were also recovered: one from Ziegler Street, where another shooting had taken place approximately twenty minutes before the shooting on Parker Street; two from the victim's body; and two others from Parker Street. The Commonwealth's ballistics expert testified, again “to a reasonable degree of ballistic[ ] certainty,” that all came from the same .45 caliber pistol. No projectiles were conclusively traced to the .38 caliber revolver, although there were several projectiles that the Commonwealth's ballistics expert testified could have come from the revolver.

The defendant was indicted for murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty, and for two counts of carrying a firearm without a license, based on the .45 caliber pistol and the .38 caliber revolver. At trial, the Commonwealth did not seek to establish that the defendant fired any of the shots that killed the victim. Instead, the Commonwealth contended that the defendant was responsible because he assisted another individual, whom the Commonwealth never expressly identified, who carried the .45 caliber pistol and fired the fatal shots.

The core issue at trial was the defendant's mental state at the time of the shooting. The Commonwealth offered evidence to establish the defendant's prior awareness of and intent to participate in the shooting. The Commonwealth presented testimony indicating that...