Commonwealth v. Simpson

• Decision Date: 09 March 2001
• Citation: 434 Mass. 570,750 N.E.2d 977
• Parties: (Mass. 2001) COMMONWEALTH vs. DALTON SIMPSON. 7354
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

750 N.E.2d 977 (Mass. 2001)

COMMONWEALTH vs. DALTON SIMPSON.

7354

Massachusetts Supreme Court

March 9, 2001.

July 13, 2001.

County: Suffolk.

Present: Marshall, C.J., Greaney, Ireland, Spina, & Cowin, JJ.

Summary: Practice, Criminal, Severance, Trial of indictments together, Venue, Discovery, Voluntariness of statement, Assistance of counsel, Argument by prosecutor, Instructions to jury, Presumptions and burden of proof, Capital case. Malice. Evidence, Exculpatory, Relevancy and materiality, Presumptions and burden of proof. Homicide.

Indictment found and returned in the Superior Court Department on February 25, 1994.

The case was tried before Sandra L. Hamlin, J., and a motion for a new trial was heard by her.

David H. Erickson for the defendant.

Cathryn A. Neaves, Assistant District Attorney, for the Commonwealth.

COWIN, J.

The defendant was convicted by a jury of murder in the first degree on the theory of deliberate premeditation. He was also convicted of unlawful possession of a firearm, receiving stolen property (a registration plate), and operating a motor vehicle negligently so as to endanger the public.¹ Represented by new counsel, the defendant filed a motion for a new trial, which the trial judge denied. The defendant appeals from his convictions and from the denial of his motion for a new trial. The defendant claims that (1) the judge erred in denying his motion to sever the unlawful possession of a firearm indictment from the other indictments; (2) the judge abused her discretion in denying his motion for a change of venue; (3) he was improperly denied discovery; (4) the Commonwealth failed to preserve exculpatory evidence; (5) he was denied due process, a fair trial, and the effective assistance of counsel by the improper admission of a statement he made at a hospital following his arrest; (6) the judge made several erroneous evidentiary rulings; (7) prosecutorial misconduct denied him due process and a fair trial; and (8) the judge erred in her instructions to the jury. The defendant also requests that we exercise our extraordinary power under G. L. c. 278, § 33E, to order a new trial or to reduce his murder conviction to a lesser degree of guilt. We affirm the convictions and the order denying the motion for a new trial and decline to exercise our power under G. L. c. 278, § 33E.

Facts and procedural history. We summarize the evidence. On February 5, 1994, between 4 P.M. and 5 P.M., the defendant was driving his black Volkswagen Rabbit automobile, bearing a stolen registration plate, at high speeds in a residential neighborhood in the Dorchester section of Boston. He sped down Millet Street (a one-way street) and hit the vehicle of Rodney Marcellus (Marcellus), as Marcellus pulled out from a parking space into the street. The defendant got out of his car, confronted Marcellus and screamed obscenities at him. The defendant returned to his Rabbit three times, slamming his car door each time. The defendant's aggressive behavior caused a nearby witness to dial 911. When Marcellus asked for the defendant's license, the defendant returned to his car again and sped away, with tires screeching and without heeding a stop sign. Police responded to the accident scene and after they left, the defendant returned in his Rabbit. He stopped his car and spoke to three boys on the sidewalk, who ran off. The defendant then sped away.

The defendant drove the wrong way down Spencer Street, a one-way street located one block from Millet Street. He stopped in front of a Dodge Caravan (van) driven by the victim, Berisford Wayne Anderson, an off-duty Boston police officer, who had just pulled out of his driveway onto the street. The van was going in the correct direction. The defendant got out of his Rabbit and stood toward the front of his automobile. The victim opened his driver's side door and leaned out. The two men exchanged words briefly. The defendant then lifted his hand and began shooting at the victim. The victim leaned into his vehicle, came out with a .38 caliber handgun, and returned fire. The victim ran to the back passenger side of his van and the defendant ran to the driver's side of his Rabbit. The two continued firing shots at one another. The defendant fired the last shot, got into his car, backed up the street and sped off. The victim tried to stand up, but fell to the ground. He died from a single gunshot wound to his chest. Several persons witnessed the incident.

As Boston police Officer Jonathan M. Stratton approached Spencer Street in response to a radio dispatch of shots fired, he saw the defendant driving his Rabbit and followed him. The defendant parked his car in a driveway on Crowell Street. As the defendant got out of the vehicle, Stratton ordered him to stop. The defendant stood by the car and started to place his hands on the top of the vehicle, but then began running. Stratton chased him, and the defendant dropped his gun, which Stratton picked up. The gun was jammed. Stratton continued chasing the defendant. Another officer, Richard Walker (Walker), driving a cruiser, eventually joined in the chase and apprehended the defendant. Walker tackled the defendant and knocked him down in a snowbank.

Boston police Officers Robert Kenney (Kenney) and Jerry Cofield transported the defendant to a police station in a cruiser. During the ride, the defendant became agitated, stated that he was in pain, and at one point started kicking the door and the window glass. When they arrived at the station, Kenney led the defendant to the prisoner bay. As Kenney was handing a set of keys to Cofield, the defendant, who was being held by the chain between the handcuffs, started to run out of the prisoner bay. Kenney pulled in and up on the chain, and the defendant ran into the prisoner bay wall, striking and cutting his head on the wall. The officers placed the defendant in a holding cell and emergency medical technicians (EMTs) transported the defendant to the emergency room at Faulkner Hospital.

At the emergency room, Kenney remained with the defendant who was handcuffed to a stretcher. The defendant was agitated at times and at other times calm. While waiting for a doctor, the defendant stated, "If I had a bullet, I'd shoot the cop that hurt my head."

The defendant did not testify at trial. His defense was that he acted in self-defense. The defendant's witnesses were a ballistics expert, and one of the EMTs who transported him to the hospital. The ballistics expert, Carl M. Majeskey, testified that he had examined the defendant's firearm, which appeared to have been thrown and damaged. He stated that a gun such as the defendant's may jam when it strikes the pavement. The EMT, Charles Haight, testified that he had treated the defendant's head injury and that the defendant had related that he had been assaulted. He also said that the defendant was extremely agitated, cried, and was hysterical, uncooperative, and belligerent, spitting at the EMTs.

Approximately two years after his convictions, the defendant, represented by new counsel, moved for a new trial² on the ground that trial counsel provided ineffective assistance during the hearing on the voluntariness of the defendant's statement at the hospital that, "If [he] had a bullet, [he] would shoot the cop [Kenney] that hurt [his] head." The defendant contends that trial counsel failed to introduce certain evidence that would have altered the judge's decision regarding voluntariness: (1) all the defendant's medical records from the hospital concerning the treatment of the head injury he sustained at the police station; and (2) testimony that, several hours before the murder, one of the defendant's friends, Anthony Gordon, declined a ride with the defendant due to the defendant's alleged intoxication. The motion judge, who was the trial judge, denied the motion for a new trial.

1. Severance. The defendant claims that the judge erred in failing to sever the unlawful possession of a firearm indictment from the remaining indictments and that the resulting prejudice denied him a fair trial. Specifically, the defendant argues that evidence of the illegal possession of the weapon portrayed him as a person with a "complete disregard for human life." Rule 9 (a) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 859 (1979), provides that offenses are related "if they are based on the same criminal conduct." The trial judge "shall join" charges for "related offenses" for trial "unless [the judge] determines that joinder is not in the best interests of justice." Mass. R. Crim. P. 9 (a) (3), 378 Mass. 859 (1979). See Commonwealth v. Sylvester, 388 Mass. 749, 758 (1983).

The decision regarding joinder of related offenses rests in the trial judge's discretion. Commonwealth v. Delaney, 425 Mass. 587, 593 (1997), cert. denied, 522 U.S. 1058 (1998). Offenses are "related" when the evidence "in its totality shows a common scheme and pattern of operation that tends to prove all the indictments." Id. at 594, quoting Commonwealth v. Feijoo, 419 Mass. 486, 494-495 (1995). The offenses here were clearly related as they were based on the same criminal conduct, the defendant's irrational and aggressive behavior on the afternoon of February 5, 1994. The weapon the defendant used to kill the victim is the gun that is the subject of his indictment charging unlawful possession of a firearm. The evidence regarding the firearm charge was intertwined with the evidence concerning the indictments charging murder, possession of a stolen registration plate, and operating a motor vehicle to endanger. The decision to deny the motion to sever was within the sound discretion of the trial judge. Commonwealth v. Jervis, 368 Mass. 638, 645 (1975), and cases cited.

2. Change of venue. The defendant contends that the judge abused her discretion by failing to transfer the case to another county because the pretrial publicity surrounding this incident was "extensive and...