Commonwealth v. NG, SJC-10476

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation182 N.E.3d 287,489 Mass. 242
Docket NumberSJC-10476
Parties COMMONWEALTH v. Yat Fung NG.
Decision Date03 March 2022

489 Mass. 242
182 N.E.3d 287

Yat Fung NG.


Supreme Judicial Court of Massachusetts, Suffolk.

Argued October 4, 2021.
Decided March 3, 2022.

Ian MacLean, Assistant District Attorney (Lynn S. Feigenbaum, Assistant District Attorney, also present) for the Commonwealth.

James L. Sultan, Boston, for the defendant.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.


489 Mass. 243

In the early morning hours of May 23, 2004, the defendant, Yat Fung Ng, met Karriem Brown, the victim, outside a bar in the Fenway area of Boston. A verbal confrontation ensued, and minutes later, the defendant shot the victim once in the forehead, resulting in the victim's death thirty days later. A jury convicted the defendant of murder in the first degree and unlawful possession of a firearm. The trial judge sentenced the defendant to imprisonment for life without the possibility of parole on the murder conviction.1 Following his convictions, the defendant filed a motion for a new trial, which was denied. This court consolidated the defendant's appeal from the denial of his motion for a new trial with the direct appeal from his convictions. Following oral argument on the consolidated appeal, our review of the case pursuant to G. L. c. 278, § 33E ( § 33E ), alerted us that trial counsel's performance may have been constitutionally ineffective, but review of that issue was impeded because the defendant did not raise a claim of ineffective assistance of counsel in his motion for a new trial or appellate brief, and therefore, no evidentiary hearing had been conducted on the issue. This court then remanded the case for an evidentiary hearing on the sole issue of trial counsel's performance with instructions that, should the judge determine that trial counsel had been constitutionally ineffective, the judge should order a new trial.

After the case had been remanded but before an evidentiary hearing had been held, the defendant's appellate counsel filed a second motion for a new trial on the ground that trial counsel had provided ineffective assistance, addressing the issues identified in this court's order of remand and raising an additional issue related to trial counsel's potential ineffective assistance. After an evidentiary hearing, the motion judge concluded that the defendant had received constitutionally ineffective assistance at trial and, therefore, allowed the

182 N.E.3d 294

defendant's second motion for a new trial. The case is now before this court on the Commonwealth's appeal from the judge's allowance of the defendant's second motion for a new trial. For the reasons discussed below, we reverse.

Background. We recite the relevant facts as found by the motion judge, supplemented by the record, reserving certain facts

489 Mass. 244

for later discussion. We consider the facts in the light most favorable to the defendant. See Commonwealth v. Howard, 479 Mass. 52, 57, 91 N.E.3d 1108 (2018) ; Commonwealth v. Acevedo, 446 Mass. 435, 442-443, 845 N.E.2d 274 (2006).

A bar in the Fenway area of Boston closed at around 2 A.M. on May 23, 2004, and the staff ushered out the patrons. Once outside the bar, two groups of patrons engaged in a verbal altercation that eventually became physical, with some amount of pushing and punching. The victim did not initiate the fight but, after witnessing it, joined in the aid of his friends. During the fight, the victim "start[ed] throwing bodies," and when "somebody tried to hit [the victim], ... [the victim] hit him and punche[d] through." The victim also pushed a woman and a man to the ground. There is no evidence in the record suggesting that either individual was injured. When the woman said that she was going to call the police, the victim grabbed her purse and threw it onto the median in the middle of the street. The victim did not pursue the woman as she then retrieved her purse. According to one witness, the victim was "waving his arms, kind of ranting," "his eyes were crazy," and he appeared to be "on something besides alcohol." As the fight was ending, the victim's friend retrieved a fraternity cane2 from his car and began twirling it, telling members of the other group involved in the fight, "You don't want any of this." The friend never struck or touched anyone with the cane. The victim was never armed and was observed to have nothing in his hands throughout and after the fight.

The defendant was not a member of either group, nor was he involved in the fight. After the victim pushed the woman to the ground, the defendant "instinctively took his jacket off and ran right over to the scene." The defendant angrily confronted the victim and his friends, threatening them by saying, "You think you're bullet proof, you think you're bullet proof," "What's up, tough guys? You think you're bullet proof? I got something for you. I got something for you in my trunk. You think you're bullet proof?" The defendant then specified that what he had in the trunk for the victim and victim's friends was a gun.

The victim and defendant continued to exchange words after the victim entered his friend's car. The victim eventually got out of the car, threw his jacket on the ground, and began walking

489 Mass. 245

toward the defendant while hitting his own chest and angrily asking the defendant why the defendant was threatening him. The defendant walked toward the defendant's car, with the victim walking after him. The victim continued to yell at the defendant as he walked, at one point telling the defendant that he "better run." The defendant did not respond but quickened his pace and continued walking toward his car in a manner that one witness described as "with a purpose." According to this witness's uncontroverted testimony, the witness told the defendant something to the effect of, "It's over," to which the defendant responded, "It's not over for me" or "I have business."

182 N.E.3d 295

When the defendant reached his car, he stopped at the driver's side door, and then searched through the trunk and emerged with a gun.3 The defendant pointed the gun at the victim and said, "Yeah, you want this? You want this?" The victim, who was unarmed, responded, "Go ahead, do it. Do it," and "What are you gonna do, shoot me? Go ahead, shoot me." The victim and defendant were at least ten feet apart when the defendant fired the fatal shot, hitting the victim in the forehead.4 The defendant then

489 Mass. 246

got into his car and fled the scene.

The defendant, who did not testify, did not contest at trial that he was the shooter. The defendant's trial counsel had decided before trial to argue that the defendant shot the victim in self-defense, largely based on the anticipated testimony of Omar Sierra about a call with the defendant that occurred approximately twenty minutes after the shooting. Trial counsel anticipated that Sierra would testify that the defendant had stated, "[H]e came at me, he came at me, so I had to shoot him." Trial counsel previewed this anticipated testimony in her opening statement. A few days later, after trial counsel had argued that the statements would be admissible either for the nonhearsay purpose of showing the defendant's state of mind or pursuant to the spontaneous utterance exception to the hearsay rule, the trial judge ruled that the defendant's statements to Sierra were inadmissible, and Sierra did not testify. Trial counsel continued to argue a theory of self-defense and did not pivot to a theory that the shooting was mitigated from murder to manslaughter by heat of passion upon reasonable provocation. Although the Commonwealth and trial counsel previously had submitted proposed jury instructions that included instructions on both self-defense and heat of passion upon reasonable provocation, the Commonwealth

182 N.E.3d 296

did not renew or otherwise discuss this request at the charge conference, at which the judge discussed only a possible self-defense instruction. At an exchange at sidebar immediately following the jury charge, the Commonwealth asked whether trial counsel was "requesting heat of passion and sudden combat for manslaughter?" Trial counsel asserted that she was seeking only an instruction on self-defense, effectively waiving an instruction on reasonable provocation. The Commonwealth then stated, "So you are not seeking the other two, any other prongs [other than self-defense]? That's fine." The defendant was convicted of murder in the first degree.

At an evidentiary hearing on the issue of the defendant's trial counsel's performance, the motion judge credited trial counsel's testimony in its entirety. In granting the defendant's second motion for a new trial, the judge found that trial counsel's preview of

489 Mass. 247

Sierra's anticipated testimony in her opening statement and her failure to pivot from a theory of self-defense to a theory of reasonable provocation after the exclusion of...

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    • 9 Agosto 2022 objection at trial, we review any error for a "substantial likelihood of a miscarriage of justice." See Commonwealth v. Yat Fung Ng, 489 Mass. 242, 247, 182 N.E.3d 287 (2022).We begin by emphasizing two crucial points. First, when the trial judge gave the instructions at issue here, she ......
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