Commonwealth v. Ray

• Decision Date: 12 February 2014
• Docket Number: SJC–10535.
• Citation: 467 Mass. 115,4 N.E.3d 221
• Parties: COMMONWEALTH v. Charon RAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

467 Mass. 115

4 N.E.3d 221

COMMONWEALTH

v.Charon RAY.

SJC–10535.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Oct. 11, 2013.

Decided Feb. 12, 2014.

Limitation Recognized

M.G.L.A. c. 265, § 2

Robert F. Shaw, Jr., Cambridge, for the defendant.

Helle Sachse, Assistant District Attorney, for the Commonwealth.

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

CORDY, J.

On the evening of June 10, 2004, two teenage boys were shot from behind on Hazelwood Street in the Roxbury section of Boston following ongoing animosity between two groups of local teenagers. One was injured, and the other, Dakeem Galloway (Dakeem), fourteen years of age, died from a gunshot wound to the head. The defendant, Charon Ray, who was sixteen years of age at the time of the shooting, was subsequently indicted for the murder. In June, 2007, after a jury trial, he was found guilty of deliberately premeditated murder in the first degree.¹ He appealed from the convictions, as well as from the denial of his third motion for a new trial, which asserted that his right to a public trial was violated by a full closure of the court room during jury selection and a partial closure during trial, and that he was denied effective assistance of counsel due to trial counsel's inadequate preparation and failure to investigate and procure the testimony of a potential eyewitness. On appeal, the defendant also asserts that the judge erred in denying his request for a continuance and his motion to suppress statements he made to the police, impermissibly limited his cross-examination of a Commonwealth witness, and wrongly permitted a sleeping juror to participate in deliberations in violation of his right to a fair and impartial jury. Finally, he asserts that, in light of the decision of the United States Supreme Court in Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), his sentence to life imprisonment without the possibility of parole violates the Eighth Amendment to the United States Constitution. Because we find no reversible error and discern no basis to exercise our authority under G.L. c. 278, § 33E, we affirm the defendant's convictions. However, in light of our decision in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 1 N.E.3d 270 (2013), interpreting Miller, we vacate the sentence and remand the case to the Superior Court for resentencing.

Background. We summarize the evidence presented by the Commonwealth at trial, reserving certain details for our discussion of the issues raised.

For several years prior to the shooting, there had been tension and conflict between two groups of friends based around neighboring housing complexes located in Roxbury, known as Charlame I and Charlame II. In June, 2004, the defendant; brothers Rasheed Moore, Marcel Campbell, and Anthony Yancy; and brothers Julian, Jonathan, and Ronald Rogers were considered part of the Charlame I group. Dakeem (the victim), Jarrod Baskin, Thomas Burns, Javone Cole, Vincent Lockett, Jumani Mobley, and La–Lance Smith were considered part of the Charlame II group.

On June 10, 2004, there was a series of altercations between these groups. After school that day, Dakeem and his Charlame II friends, Baskin, Burns, Cole, Lockett, and Smith, apparently played basketball, as was their usual routine. At approximately 3 p.m., the boys walked to a store nearby to buy sodas and encountered the defendant. They exchanged words. On their return to Charlame II, the boys took a different route. At approximately 4 p.m., Dakeem indicated that he needed to return to the store for his mother. Smith accompanied him, and on the way they were approached by the defendant, accompanied by Moore and a third boy from Charlame I. They again exchanged words, and this time engaged in a physical fight. Dakeem and Smith then returned to Charlame II between 4 and 5 p.m.

Also that day, Campbell (of Charlame I) and Mobley (of Charlame II) had a fight outside the Lewis basketball court. The dispute arose from the taking by the Charlame I boys of a hat belonging to Dakeem. Dakeem and Smith had earlier tried to retrieve the hat with the help of Dakeem's stepfather but were unsuccessful. During the fight, Campbell attempted to pull out a knife, but a man identified as Kyrice Grady took it from him. When the boys dispersed, Mobley and his friends returned to Charlame II.²

At approximately 8:30 p.m., Smith, who lived a bus ride away from Charlame II, decided he wanted to go home. Dakeem, Baskin, Burns, Cole, and Lockett accompanied Smith to the bus stop because of the earlier conflict between Mobley and Campbell. Although Smith normally would walk along Martin Luther King Jr. Boulevard or Catawba Street to reach the bus stop on Warren Street, the boys took the longer route along Humboldt Court and Hazelwood Street, because they wanted to avoid further problems with the Charlame I group. From their route, they could see numerous people gathered at Charlame I. At trial, Baskin testified that in the group he saw the defendant, wearing a white T-shirt and jeans, and Moore, wearing a sports jersey. He said that Moore was giving the defendant a black Champion-brand sweatshirt with a hood that was pointed at the top. As the Charlame II boys continued to walk down Hazelwood Street, a shooter located behind them fired six to seven gunshots. The boys ran down Hazelwood Street toward Warren Street. Burns was grazed by a bullet, and Dakeem was fatally injured by a gunshot wound to the head.

At approximately 9 p.m., officers and paramedics responded to a 911 telephone call from the scene. During a search of the area, the detectives found five spent casings fired by an unrecovered .25 caliber pistol, and a bag approximately the size of a golf ball, likely containing marijuana, near a large blood stain. No identifiable fingerprints were found on the casings or bag. The police also recovered a Razor-brand scooter from the scene.

1. Identification witnesses. None of the witnesses brought to the police station on the night of the shooting and interviewed by the detectives identified the shooter. Smith and Baskin, who both had accompanied Dakeem that night, denied recognizing the shooter in the police interviews. At a subsequent grand jury proceeding, however, Baskin testified that the defendant was the shooter, and at trial he testified that when he looked back as they were running, he saw “the same hoodie and a white [T]-shirt ... that [the defendant] had on” and could tell that it was the defendant by his outfit. He also testified that he saw the shooter run through an alley toward Humboldt Court. Smith continued to deny that he saw anyone when he testified at the grand jury proceeding. At trial, however, he testified that he looked back at the shooter and saw “a Champ hoodie” tied a specific way and light eyes that resembled those of the defendant or Moore. Tatiana Magazine, Mobley's foster sister and the defendant's schoolmate, also testified at trial that at school the next day, she accused the defendant of being the shooter, and he did not deny it. One witness testified that she saw a young man, in a dark hooded sweatshirt with the hood up, run toward the group of boys just before the shooting and extend his arm out toward the group. Another witness testified that the shooter had on a fitted baseball cap, and that she saw him run up the stairs at the alley near Humboldt Court, trip, and fall.

2. Kyrice Grady's testimony. At trial, and contradictory to the testimony he gave before the grand jury, Kyrice Grady denied knowing the defendant and being present on the night of the shooting. Consequently,the testimony that Grady gave before the grand jury regarding what he observed on the evening of the shooting was read into evidence.³

According to Grady's grand jury testimony, near the time of the shooting, Grady and Stephen Galloway were hanging out at Charlame II. When Dakeem said he wanted to go to the store, Grady warned him that there were many Charlame I people out there. Grady saw Dakeem, Baskin, Smith, and a few others walk up Humboldt Avenue and turn into Humboldt Court, which connects to Hazelwood Street. Grady knew the defendant well, and had “watched him grow up.” From his viewpoint at Charlame II, Grady could see that a blue van had pulled up at Charlame I, and someone had brought the defendant “the [black] Champ,” which the defendant put on over his white T-shirt and baseball hat. The defendant then ran to Charlame First Court, which leads to Martin Luther King Jr. Boulevard, crossed the boulevard, and ran up the stairs leading to Humboldt Court and Hazelwood Court. Grady, concerned about what might happen to his Charlame I friends, followed the defendant on a Razor-brand scooter. He then heard six or seven gunshots but did not know who the shooter was at that moment. Immediately thereafter, the defendant literally ran into Grady in the alley near Humboldt Court and Hazelwood Court, close to where the shots had come from. Grady testified that the defendant lifted his hand up and had a silver semiautomatic gun. The defendant looked at Grady and then turned and ran up the stairs, falling on his way. Grady briefly chased the defendant and encountered him again, at which time the defendant had taken off the black Champ and was once again wearing a white T-shirt and a baseball hat. Grady then returned to the scene of the shooting, where he left the scooter and observed a bag of marijuana on the ground. In Grady's account, Stephen Galloway accompanied him for most of this pursuit. At the grand jury proceeding, Grady also identified the defendant as the shooter from a photographic array.

3. Stephen Galloway's testimony. Galloway was Dakeem's cousin and shared an apartment with Grady. At trial, Galloway corroborated much of Grady's grand jury testimony. He testified that he and Grady were at Charlame II the night of the shooting. A group of boys, including the...