Commonwealth v. Shaun Jenkins.

• Decision Date: 04 February 2011
• Docket Number: SJC–10144.
• Citation: 458 Mass. 791,941 N.E.2d 56
• Parties: COMMONWEALTHv.Shaun JENKINS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

458 Mass. 791

941 N.E.2d 56

COMMONWEALTH

v.Shaun JENKINS.

SJC–10144.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 5, 2010.Decided Feb. 4, 2011.

Stewart T. Graham, Jr., for the defendant.Helle Sachse, Assistant District Attorney, for the Commonwealth.Present: IRELAND, SPINA, COWIN, BOTSFORD, & GANTS, JJ.

COWIN, J.

The defendant was convicted by a jury in the Superior Court of murder in the first degree on the theory of deliberate premeditation. The defendant appeals from that conviction and from the denial of his motion for a new trial. He argues that, at the trial of the case, two allegedly hearsay statements were erroneously admitted; the prosecutor improperly cross-examined the defendant's mother without an adequate basis for certain questions; and the prosecutor's closing argument was improper. Further, the defendant contends that the judge erred in denying his motion for a new trial because he did not validly waive his right to testify. The defendant asserts also that he received ineffective assistance of counsel due to counsel's failure to impeach the Commonwealth's key witness; counsel's failure to object to the prosecutor's closing argument; and counsel's advice regarding whether the defendant should testify. We reject the defendant's arguments and, after review of the entire record, determine that there is no reason to exercise our extraordinary power pursuant to G.L. c. 278, § 33E, to reduce the murder verdict or grant him a new trial. We affirm the defendant's conviction and the order denying the motion for a new trial.

1. Facts. We briefly summarize the facts the jury could have found. Most of the evidence is discussed in conjunction with the specific arguments raised. The victim, Stephen Jenkins, was a cousin of the defendant. The defendant, an admitted drug dealer, “set up” the victim in the drug business (selling cocaine in Wareham) and introduced the victim to his own “clients.” The victim repaid the favor by encroaching on the defendant's business by selling bags of “crack” cocaine that were larger and cheaper than those sold by the defendant. Parties in this trade do not take their business disputes to court; rather, the defendant began threatening to kill the victim because of his unfair business practices, and, on December 15, 2001, the morning after the defendant was beaten and disrobed by the victim, the defendant carried out his threats and shot the victim in a car in the Dorchester section of Boston. After the killing, the defendant fled to North Carolina for a few days. Approximately one year later, he learned that there was a warrant for his arrest and turned himself in.

2. Hearsay statements. The defendant asserts error in the admission of two pieces of allegedly hearsay testimony. The defendant objected to the admission of both. First, the defendant maintains that certain testimony of Tamisha Miranda, the girl friend of the victim, should not have been admitted. Miranda was a Commonwealth witness and testified concerning an incident at a barber shop in Brockton several days before the killing. Miranda stated that, while waiting in a car in front of a barber shop for the victim, she saw the defendant and four other men. Street lights assisted her view of the group. She heard the defendant yell at the victim, accusing the victim of stealing his customers. The victim said that the defendant should not be upset, that it was just business. Miranda saw the defendant show the victim a gun. One of the other men screamed and said to the defendant, “You don't want to do this here.” The defendant and the four men jumped in a car and drove away. The victim returned to Miranda's car and, while driving erratically, said, “I can't believe he f'n pulled out a gun on me.” ¹

The defendant objected to the admission of the testimony that one of the men said, “You don't want to do this here.” The statement was admitted as a spontaneous utterance on the ground that displaying a firearm on a public street is a sufficiently exciting event that the stress of the moment is likely to render the declarant's statement reliable. See Commonwealth v. Moquette, 439 Mass. 697, 704–705, 791 N.E.2d 294 (2003). The defendant contends that the foundation was insufficient to qualify the statement as an excited utterance. We need not resolve this dispute.

The testimony was not offered for the truth of its contents and thus was not hearsay. See Commonwealth v. Kenney, 437 Mass. 141, 152, 769 N.E.2d 1231 (2002). The statement was a part of the event described by the witness. Cf. Commonwealth v. Silva–Santiago, 453 Mass. 782, 802–803, 906 N.E.2d 299 (2009). It was not offered to prove a fact. Although the judge admitted the testimony on one basis, we may affirm the ruling if there is another basis for doing so. See Commonwealth v. McCutcheon, 51 Mass.App.Ct. 715, 720, 748 N.E.2d 489 (2001), citing Commonwealth v. King, 389 Mass. 233, 234, 449 N.E.2d 1217 (1983). Moreover, the testimony was merely cumulative of other testimony. Craig Jenkins,² another cousin of the defendant and the key Commonwealth witness, testified that several days before the killing, the defendant told him about a dispute with the victim at a barber shop in Brockton. Craig also said that the defendant stated that he had pulled out a gun on the victim and “tried to fuckin' buck that dude, man, but the gun got jammed.” Craig defined the word “buck” as meaning “attempted to shoot ... with a gun.” Thus, it is clear that the defendant was saying that he tried to shoot the victim and regretted that the gun “got jammed.” In view of this damning account of the incident from Craig, repeating the defendant's own words, Miranda's report that “another guy” said, “you don't want to do this here,” was no more than cumulative. Cf. Commonwealth v. Galicia, 447 Mass. 737, 747–748, 857 N.E.2d 463 (2006).

The other asserted hearsay testimony came from Craig repeating a statement of Kenitra Newton, the defendant's girl friend. Approximately one week before the murder, the defendant, his cousin Craig, and Newton were in a minivan. Angry with the victim for taking his drug business, the defendant stated, “[T]his wasn't a fucking game and ... he was going to fucking erase that dude.” Newton said, “Stephen [the victim] don't fuckin' know Shaun, Shaun will kill his ass.” Craig testified that he could not remember if the defendant said anything in response to Newton's remark. The defendant objects to the admission of Newton's statement that the defendant “will kill his ass.”

The Commonwealth argues that, because the defendant would be expected to deny any such intention, the statement was admissible as an adoptive admission. Such an admission is one “made in the presence of the defendant to which the defendant's response—whether by oral declaration, by gesture, or by revealing silence—objectively denotes the defendant's acceptance of the statement.” Commonwealth v. Stewart, 450 Mass. 25, 34, 875 N.E.2d 846 (2007), quoting Commonwealth v. Babbitt, 430 Mass. 700, 705, 723 N.E.2d 17 (2000). Because here the witness could not remember what, if anything, the defendant responded, there was no response, by silence or otherwise, that signifies the defendant's acceptance of the statement. Consequently, the admission of the statement was error. The error in admitting the statement, however, was not prejudicial. In the same conversation, the defendant himself was quoted as saying: “This wasn't a fucking game and that he was going to fucking erase that dude.” Thus, the erroneously admitted statement was merely cumulative. See Commonwealth v. Francis, 432 Mass. 353, 366–367, 734 N.E.2d 315 (2000).

3. Foundation for cross-examination. The defendant maintains that the prosecutor improperly cross-examined the defendant's mother. The defendant's mother was called as a witness by the Commonwealth and the prosecutor asked her a series of questions about keeping a gun for the defendant. When the defendant objected, the prosecutor justified the inquiries on the basis that George Hooker, a former boy friend of the mother, would testify to the facts supporting the questions. The prosecutor continued asking questions in an attempt to establish a connection between Hooker, the defendant, the murder, and a gun. The mother answered each inquiry in the negative.

The defendant contends that the prosecutor used innuendo to create an impression that the defendant kept a gun at his mother's home and that the defendant had argued with Hooker about it. The defendant argues that the tactic constituted “prosecutorial misconduct” in violation of Commonwealth v. Fordham, 417 Mass. 10, 20–21, 627 N.E.2d 901 (1994) (attorney may not create impressions by innuendo through questions answered in negative when questioner has no evidence to support such innuendo). The defendant did not object to the questions on this ground. Regardless, the prosecutor stated that Hooker was expected to testify, was “cooperative” with the police and that the mother's “own words” to Hooker were that she was holding a gun for the defendant. On this record, the fact that the Commonwealth eventually did not call Hooker as a witness does not affect the good faith basis of the questioning.³ In addition, any suggestion that the defendant possessed a firearm was cumulative of the testimony of other witnesses.⁴

4. Closing argument. The defendant maintains that the prosecutor argued improperly in several respects. Because there were no objections to these remarks, our inquiry is limited to whether these statements were improper and, if so, whether they created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Semedo, 456 Mass. 1, 15, 921 N.E.2d 57 (2010). We consider each in turn.

a. References to “justice.” The defendant alleges that the prosecutor improperly exhorted the jury to do justice. The prosecutor mentioned “justice” twice in his closing. At the outset, he said that ...