Commonwealth v. Robertson

• Decision Date: 28 February 2022
• Docket Number: SJC-12677
• Citation: 181 N.E.3d 1065
• Parties: COMMONWEALTH v. Andrew ROBERTSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

181 N.E.3d 1065

COMMONWEALTH

v.Andrew ROBERTSON.

SJC-12677

Supreme Judicial Court of Massachusetts, Suffolk.

Argued January 10, 2022.

Decided February 28, 2022.

David H. Mirsky, for the defendant.

Darcy A. Jordan, Assistant District Attorney (Ian Polumbaum, Assistant District Attorney, also present) for the Commonwealth.

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

LOWY, J.

After a mistrial due to a hung jury, the defendant, Andrew Robertson, was convicted at a second trial of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.¹ He appeals from his convictions, arguing that (1) there was insufficient evidence to convict him at the first and second trials, (2) the defendant's motion to sever should have been allowed, (3) various pieces of evidence were admitted erroneously, (4) the prosecutor improperly expressed his opinion in closing argument, (5) the judge's instruction on accessory after the fact was improper, (6) the defendant was denied the right to a fair trial when a codefendant attacked him as the verdicts were being read, and (7) we should reduce the verdict of murder in the first degree pursuant to G. L. c. 278, § 33E. We affirm.

Background. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following at both the first and second trials. See Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979).²

The victim, Romeo McCubbin, was shot multiple times and killed while sitting in his sport utility vehicle (SUV). Surveillance video footage caught the shooting on camera. In the footage, a small SUV parks parallel to a sidewalk. An individual wearing a scarf and white-soled shoes -- the defendant -- runs onscreen from the left with his arm extended, stops facing the SUV's front driver's side window, and fires multiple shots into it. The vehicle then rolls forward, and the victim falls out of the front passenger's side door. The shooter jumps into the front passenger's side of a waiting SUV, which speeds away. A second person then runs up and shoots the prone victim multiple times; a third person then kicks the victim once.

A detective responding to the shooting followed an SUV being driven quickly away from the area of the scene of the shooting. The vehicle eventually turned into a driveway. Omar Bonner and Omar Denton got out of the SUV and were arrested after a chase. While in custody after his arrest, Denton said to Bonner that he "told Sophie to call SP" and "called SP" from "the wagon."³ The defendant's nickname was "Spoilers," and he received a call from Denton around the time that Denton was arrested.

The defendant used his cell phone to communicate or attempt to communicate with Bonner immediately before and after the killing, and he received calls from Javaine Watson, who was a friend of the defendant, the night of the incident. In the month leading up to the shooting, the defendant engaged in hundreds of telephone contacts with Watson, Denton, and Bonner. The defendant asked his girlfriend to cancel his cell phone number the day after the shooting.

Police recovered from the property where they had chased Denton and Bonner a gun that had fired ballistics found at the scene of the shooting, including the bullets found in the victim's jacket and in the victim's head. Police also investigated a red SUV blocking a driveway down the street from where the chase had occurred. The SUV was still on, in reverse, and resting against a fence. They took custody of this vehicle, as well as the one Denton and Bonner had been driving.

Watson's cell phone was in the red SUV. He had borrowed the vehicle from his girlfriend that day and had told her it was parked in front of a driveway. His girlfriend had rented the vehicle the day before Watson borrowed it. Photographs introduced at trial revealed the SUV to be nearly identical to the first shooter's getaway vehicle, as shown in the videotape of the shooting. The defendant's fingerprints were on the SUV, including on the front passenger's door's handle. Bonner's, Denton's, and Watson's fingerprints also were on the vehicle.

The defendant was at a nightclub down the street from the shooting on the night of the incident, wearing a scarf and white-soled shoes.⁴ Denton, Bonner, and Watson also were at the club that night, as was the victim. A photograph from that night at the club shows the defendant, Denton, and Bonner standing near each other.

The jury could not reach a verdict regarding the charges against the defendant after a trial against the defendant, Denton, and Bonner.⁵ Following a second trial, which was against the defendant, Denton, Bonner, and Watson, the jury found the defendant guilty of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty, as well as unlawfully possessing a firearm.

Discussion. 1. Sufficiency of the evidence. The defendant argues that there was insufficient evidence to convict him at both his first and second trials because the Commonwealth failed to prove at both trials that he was the first shooter. See Berry v. Commonwealth, 393 Mass. 793, 798, 473 N.E.2d 1115 (1985) (pursuant to double jeopardy principles, Commonwealth may not retry defendant after hung jury if there was insufficient evidence to convict). We disagree.

As a preliminary matter, the Commonwealth argues that the defendant has waived his right to contest the sufficiency of the evidence at his first trial because, before his second trial, he did not appeal from the denial of his motion to dismiss on double jeopardy grounds. This is incorrect. "[T]he defendant's contention that the evidence at his first trial was insufficient to warrant a conviction can ... be raised at least as well in the appeal following his second trial as it could have been raised under G. L. c. 211, § 3." Commonwealth v. Preston, 396 Mass. 1006, 1006, 486 N.E.2d 57 (1985).

Nevertheless, the defendant's sufficiency argument fails. Considering all the evidence in the light most favorable to the Commonwealth, the evidence at both trials was sufficient to show beyond a reasonable doubt that the defendant was the first shooter. See Latimore, 378 Mass. at 677-678, 393 N.E.2d 370.

The evidence, along with reasonable inferences therefrom, showed that the defendant was associated with Denton and Bonner, at least one of whom was in possession of one of the guns used to shoot the victim, and Watson, whose cell phone was in the getaway vehicle. The defendant communicated with Watson, Denton, and Bonner hundreds of times in the month leading up to the shooting, including immediately before and after the incident. See Commonwealth v. Barbosa, 477 Mass. 658, 667, 81 N.E.3d 293 (2017) (defendant's "telephone calls with his suspected coventurers immediately before the shooting and in the thirty minutes after ... allow the reasonable inference of the defendant's participation in and shared intent to commit the murder"). The defendant, Denton, Bonner, Watson, and the victim were at a club near the shooting on the night of the murder. The defendant was wearing a scarf and white-soled shoes that night, as was the first shooter. His fingerprints were on the door handle of the getaway vehicle, which had been rented the day before. See Commonwealth v. Netto, 438 Mass. 686, 701-702, 783 N.E.2d 439 (2003) (fingerprint evidence may suggest defendant's guilt when coupled with other evidence). Finally, the defendant asked his girlfriend to cancel his cell phone number the day after the shooting, demonstrating consciousness of guilt. See Commonwealth v. Porter, 384 Mass. 647, 653, 429 N.E.2d 14 (1981) (consciousness of guilt, coupled with other evidence, may suggest defendant's guilt). This evidence was more than sufficient for a rational jury to identify the defendant as the first shooter beyond a reasonable doubt.

2. Evidentiary issues. a. Hearsay. The defendant argues that Denton's statements that he "told Sophie to call SP" and "called SP" from "the wagon" should not have been admitted against the defendant, whose nickname was "Spoilers," as they were inadmissible hearsay. The Commonwealth argues that the statements were admissible against the defendant under the joint venture exemption to the rule against hearsay. See Mass. G. Evid. § 801(d)(2)(E) (2021). We conclude that the judge did not abuse her discretion in admitting the statement.

An out-of-court statement presented for its truth is exempted from the rule against hearsay if it "is offered against an opposing party and ... was made by the party's coconspirator or joint venturer during the cooperative effort and in furtherance of its goal, if the existence of the conspiracy or joint venture is shown by evidence independent of the statement." Mass. G. Evid. § 801(d)(2)(E). "To admit the statement of a joint venturer, the judge must make a preliminary determination, based on a preponderance of the evidence, other than the out-of-court statement itself," that the statement was made during, and in furtherance of, a joint venture between the declarant and the defendant. Commonwealth v. Rakes, 478 Mass. 22, 37, 82 N.E.3d 403 (2017). See Mass. G. Evid. § 104(a). "This determination permits the statement to be placed in front of the jury ... but does not suffice for the jury to consider it as bearing on the defendant's guilt." Rakes, supra. "The jury must first make their own independent determination, again based on a preponderance of the evidence other than the statement itself, that a joint venture existed and that the statement was made [during and] in furtherance thereof." Id.⁶ "We review the judge's decision to place a joint venturer's statement before the jury for abuse of discretion." Id.

Here, as discussed supra, there was sufficient evidence for a rational jury to conclude beyond a reasonable doubt that the defendant, Denton, Bonner, and Watson were coconspirators in the victim's murder. Accordingly, there...