Commonwealth v. Scott

• Citation: 463 Mass. 561,977 N.E.2d 490
• Decision Date: 22 October 2012
• Docket Number: SJC–09959.
• Parties: COMMONWEALTH v. Darryl SCOTT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

463 Mass. 561

977 N.E.2d 490

COMMONWEALTH

v.Darryl SCOTT.

SJC–09959.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Oct. 7, 2011.

Decided Oct. 22, 2012.

Alan Jay Black for the defendant.

Kathleen M. Celio, Assistant District Attorney (Edmond J. Zabin, Assistant District Attorney, with her) for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, & DUFFLY, JJ.

DUFFLY, J.

The defendant was convicted by a Superior Court jury of murder in the first degree in the shooting death of Nabil Essaid, armed assault with intent to kill Ahmed Obbada and Mohemmed Lebdoui, assault with a dangerous weapon on Boston municipal police Officer Matthew Clark, and various firearms offenses.¹ The defendant, who testified at trial, did not dispute that he shot Essaid; he maintained, however, that he acted in self-defense and in defense of his pregnant girl friend, as Essaid and his friends surrounded him and Obbada appeared to be reaching for a weapon in his waistband.

The denial of the defendant's motion for a new trial was consolidated with his direct appeal. The defendant alleges error in the judge's allowance of the peremptory challenge of an African–American juror; the admission of certain evidence concerning his juvenile record; portions of the prosecutor's closing argument; and the denial of his request for an instruction on defense of another. He asserts error also in the denial of his motion for a new trial, without an evidentiary hearing, in which he maintained that he had received ineffective assistance of trial counsel. Last, the defendant asks that we exercise our power under G.L. c. 278, § 33E, to grant him a new trial or to reduce the degree of guilt of the murder conviction. For the following reasons, we affirm the defendant's convictions and decline to grant him a new trial or to reduce the verdict to a lesser degree of guilt.

Background. Based on the evidence at trial, the jury could have found the following.

Essaid was shot on December 14, 2002, two weeks after he and several of his friends were involved in an altercation with the defendant and his friends. On December 1, the defendant and two of his friends, Andrew and Andre Kornegay, had had a confrontation with Essaid, Obbada, and Lebdoui, who claimed that the Kornegays had stolen their marijuana. The men were at Downtown Crossing in Boston when the Kornegays and the other three began arguing; the defendant ran over and intervened after he concluded that it was “getting heavy.”

1. Commonwealth's case. Obbada was the Commonwealth's key witness to the events surrounding the shooting.² At approximately 6 P.M. as the defendant and his then girl friend, Victoria Fernandes, who was pregnant, were leaving a movie theater on Tremont Street in Boston, they saw Essaid, Obbada, and Lebdoui outside the theater.³ The defendant told Fernandes to keep walking, which she did. He told the men to “[g]et the fuck out of here,” and the three started to walk up Tremont Street. The defendant followed, giving “the impression of someone who is looking for a fight.” When he was eight to ten feet from them, the defendant pulled out a nine millimeter Glock pistol (Glock) and fired at Obbada, who hid behind a car; one of the bullets hit his shoe. The defendant then fired at Lebdoui, who ran away, and, finally, the defendant fired several times at Essaid, who was hit by two bullets and fell to the ground. The defendant ran up Tremont Street toward the Park Street subway station. As he was running, his Red Sox baseball cap flew off his head. He turned around and ran back to pick it up, and then continued running toward Park Street station.

Two female pedestrians on Tremont Street saw a man approach three teen-aged males outside the theater. One of the three said, “Don't bring that shit to me” and another said, “No, no, no, that's between you and him.” The women kept walking, and, moments later, heard three “loud pops”; a man ran past them, dropped something, picked it up, and ran on. A male pedestrian also saw a man with a Red Sox hat running toward the Park Street station, coming from the location where a man was lying in the street, a few seconds after the pedestrian heard gunshots.

There were no leads in the shooting until February 6, 2003, when the defendant and two others (one was Andre Kornegay) were observed by undercover Boston police officers standing in front of a restaurant, looking up and down the street; Kornegay and the other man walked a slight distance away from the restaurant and apparently engaged in a drug transaction. The surveillance officers were directed to arrest Kornegay and to obtain identification from the defendant.⁴ When officers approached the defendant,he ran (narrowly avoiding being hit by a passing automobile) and officers gave chase.

Several groups of officers from different divisions of the Boston police department were ultimately involved in the chase. Officer Thomas Rose testified that he became involved in the chase and attempted to tackle the defendant, but the defendant evaded him and Rose fell. While Rose was on the ground, the defendant pulled out his gun and pointed it at Rose, and then turned and pointed it at Officer Matthew Clark, who had also joined in the chase. Clark pulled out his own firearm and ordered the defendant to drop his weapon; the defendant instead turned and ran. At some point, Officer Steven Sweeney saw the defendant trying to climb over a stockade fence.⁵ When the defendant saw the officer, he turned and shot off one round, hitting nothing, and then hid under a tarp, and was temporarily lost from the officer's sight. Officer Richard Kelley noticed a baseball cap on the ground near the tarp, and commented that “he's gotta be somewhere, his hat is right there.” The defendant, who had heard the comment and did not want police to “plug [him] up,” jumped out from under the tarp, holding a gun to his head and yelling, “Shoot me, shoot me, shoot me, kill me, kill me, kill me.”

As officers surrounded the defendant, all with weapons drawn, the defendant said that he could not go to jail for a long time and that he would kill himself. As Rose was pointing his own weapon at the defendant's chest, the defendant was shouting, “Kill me, shoot me, I can't go to jail.” Lieutenant Detective Stephen Meade, commander of the Boston police drug control unit and one of the officers who had been conducting the drug surveillance, testified that the defendant, who was very agitated and upset, said, “I'm not going to prison, I don't want to go to jail, I'm going to kill myself.” Special operations officers were called to the scene. The defendant continued to point the gun at his head, crying and talking on a cellular telephone, saying that he could not serve a long time in jail, while police told him his sentence would not be longer than one year, because it was only a gun possession charge. Officer Martin O'Malley said that it was only a gun charge and the defendant had a good chance of “beating it.” Kelley said, “You're not going to do any time in jail,” and “How many of your friends do you know that have gone to jail for illegal possession of a handgun? None.” The defendant said, “[N]one,” and then added, “[I]t's been used before.”

Hostage negotiators were called in. The defendant was agitated, banging his head and repeating that he could not go to jail for a long time; when hostage negotiator Sergeant Matthew Kervin said it was only a year for a firearms charge, the defendant responded that he could not “do a year,” and also told the officer, “You don't understand.” Lieutenant Detective Robert Merner arrived at the scene and replaced Kervin as negotiator. The defendant was talking on his cellular telephone, sobbing and saying, “It's over, this is over, this is it,” while continuing to hold the gun to his head. Merner told the defendant to put down the telephone and the defendant said, “You don't understand, my life is over, you don't understand,” and “I hear them saying on the radio that I shot at a policeman.” The defendant alternated between being extremely agitated and sobbing, and then relaxing his hand on the trigger. At one point, approximately ten minutes into the standoff, the defendant said, “I'm tired,” removed the gun from his right temple and pointed it in the air, and then switched to holding it with his left hand and pointing it at his left temple. When the defendant's father arrived at the scene, the defendant dropped the gun and surrendered.

A receipt for the purchase of the Glock in September, 2002, from a pawn shop in Arizona, was retrieved from the defendant during the booking process; the spent cartridge from the round that the defendant had fired near the fence was also recovered. Ballistics investigation showed that spent cartridge casings recovered from the area where Essaid was shot matched the defendant's Glock, and were fired from the same weapon.

Police then interviewed Obbada, who selected the defendant's photograph from a photographic array and said that the defendant had shot at him, Essaid, and Lebdoui. The male pedestrian identified the defendant's photograph as that of the man he had seen running on Tremont Street on the evening of December 14, 2002. Neither of the female pedestrians was able to identify the man she saw approach the three Middle Eastern men moments before the shots were fired. ⁶

2. The defendant's case. Fernandes testified that, as she and the defendant left the theater, they saw three men of Middle Eastern descent leaning against a wall. The men said, “What up?” as though they knew the defendant and wanted to start “trouble,” and then followed close behind the couple as they walked towards the Park Street subway station. The defendant told Fernandes to keep walking, and she did so. She heard three gunshots soon thereafter, and saw the defendant run past her toward the subway station. Fernandes boarded the train at Park Street. A few stops later, the defendant...