Commonwealth v. Smith

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation946 N.E.2d 95,459 Mass. 538
Docket NumberSJC–10078.
Decision Date26 April 2011


Stewart T. Graham, Jr., for the defendant.Karen Carlo, Assistant District Attorney, for the Commonwealth.Present: IRELAND, SPINA, BOTSFORD, & GANTS, JJ.SPINA, J.

The defendant was convicted of murder in the first degree on the theories of deliberate premeditation and felony-murder. The defendant also was convicted of armed home invasion and illegal possession of a firearm. On appeal the defendant argues that (1) the armed home invasion indictment returned by the grand jury was not sufficiently specific; (2) evidence of threats made against a witness should not have been admitted; (3) the judge incorrectly instructed the jury regarding excessive force in self-defense; (4) the judge erred in denying him an evidentiary hearing regarding his motion for a new trial; and (5) the Commonwealth failed to present sufficient evidence of premeditation. The defendant also filed a motion for a new trial on the grounds that his trial counsel was ineffective in (a) failing properly to advise him of his right to testify; (b) failing to establish and argue that forensic evidence rendered the Commonwealth's theory of the case impossible; (c) failing to call an important witness; and (d) failing to request a provocation instruction. The defendant's appeal from the denial of his motion for a new trial has been consolidated with his direct appeal. We affirm the murder, and decline to exercise our power under G.L. c. 278, § 33E.

1. Background. The jury could have found the following facts. We reserve other details for discussion of particular issues.

In June, 2006, the defendant moved into the apartment of Patricia Higgs in North Adams where he lived (along with Higgs, her fiancé, and her daughter) for approximately three weeks. The defendant was a member of the Crips street gang and sold both powdered and “crack” cocaine, heroin, and other drugs from Higgs's apartment, employing Higgs in the business in exchange for money and product. While operating out of Higgs's apartment the defendant enjoyed a steady stream of business but he and Higgs ultimately had a falling out and Higgs asked him to leave.

Approximately one week after Higgs asked the defendant to leave, a member of the Bloods street gang known as “G–Money” moved into Higgs's apartment along with his girl friend, Angela Stark, and began operating a similar business. Shortly after G–Money's arrival, Higgs was sitting in her kitchen when two men entered the kitchen and told Higgs to be quiet. Higgs recognized one of the men as a member of the Crips whom she also understood to be the defendant's cousin. The two men then entered G–Money's bedroom, placed guns against the heads of G–Money and Stark, and proceeded to beat G–Money. Within hours of the beating, G–Money vacated the apartment. Several days after G–Money's departure another member of the Bloods, Kijona Osmond, moved into the apartment. Osmond, the murder victim, began selling drugs from the apartment using the same business model as his predecessors.

At approximately 2 a.m. on July 25, 2006, the defendant went to a Dunkin' Donuts restaurant in North Adams a short distance from Higgs's apartment. The defendant mentioned to one of the store employees that he was new in North Adams, which he then compared to his native New York City. The defendant was “antsy” and continued the conversation by comparing the “excitement” in the Bronx with the atmosphere in North Adams. He asked the employee whether she would contact the police if she saw someone get shot. The defendant then left the Dunkin' Donuts and proceeded to Higgs's apartment.

At approximately the same time, Higgs began watching a movie with the victim. Higgs heard a knock on her front door and asked who was there but the mumbled response made it impossible for her to determine who was knocking. The knocking continued. Higgs got off of the couch and unlocked the front door. The defendant was standing in the doorway holding a pistol.

The defendant did not say anything to Higgs but instead grabbed her by the neck and threw her against the wall of her apartment. He held his gun to Higgs's head and demanded to know where the “stuff” was. Higgs said, “Please don't do this, my baby is in the other room.” 1 The victim then got up from the couch and moved toward the apartment's kitchen where the back door was located. The defendant, holding his gun in one hand and directing Higgs with the other, released Higgs and attempted to grab the victim's shirt. The victim turned to struggle with the defendant at which point the defendant fired a single round into the victim's neck from approximately one to two feet away.

This shot to the neck caused the victim to collapse instantly, although the medical examiner concluded that it was not the cause of death. The victim collapsed with the left side of his face on the floor. The victim was lying wounded, bleeding profusely, and was not an immediate threat to the defendant. The defendant, however, stepped over the victim, straddled his prone body, and fired a second shot into the back of the victim's head.

After firing the second, fatal, shot, the defendant stooped to pull money and drugs from the victim's pockets. While the defendant was examining the victim's pockets, Higgs's fiancé began screaming from the couple's bedroom. The defendant ran into the bedroom, waved and pointed his gun at Higgs's fiancé and their daughter, and told the fiancé to keep his mouth shut. Taking advantage of this distraction, Higgs fled the apartment and hid behind a neighboring building. The defendant then left the apartment and the area.

Having seen the defendant depart, Higgs returned to the apartment. Stark, who had been in the kitchen at the time of the shooting, informed Higgs that her fiancé had taken their daughter from the apartment through the back door. Higgs and Stark then discussed the repercussions if contraband were found on the victim's body in Higgs's apartment, prompting Higgs to search the victim's pockets for drugs and money that the defendant may have left. She handed what she found to Stark. Higgs and Stark then left the apartment and Higgs telephoned the police on Stark's cellular telephone. North Adams police officers and a Massachusetts State trooper arrived and secured the scene. On entering the apartment police discovered a loaded handgun lying on the floor beside the victim.

The defendant went to the home of Theresa Iberra and John Ceasar with whom he was friendly. Before the defendant arrived, Iberra had learned while listening to a police scanner that police were looking for the defendant regarding the killing. She received a telephone call from the defendant asking that he be let in to her apartment. Before Iberra could open the door the defendant forced it open. The defendant told Iberra and Ceasar that he had entered Higgs's apartment, held a gun to Higgs, that the victim had begun walking toward him, that he believed the victim was going to shoot him, that he had shot the victim in the throat, that the victim had fallen face down on the floor, and that he had then shot the victim a second time in the back of the head. The defendant told Iberra that he was motivated by the fact that they were making the money and he wasn't.” The defendant also told Iberra that he wished he had shot another member of the Bloods rather than the victim whom he made no mention of having met before. While they talked, the defendant showed his pistol to Iberra and Ceasar and informed them that, because they were now witnesses to his confession, he was going to have to kill everyone in their family. When asked about this threat to her family, Iberra testified that the defendant insisted, “There will be no witnesses” and that as a result, “Everyone must die.”

After calming down somewhat, the defendant slept at Iberra's house and was awake later in the morning when North Adams police arrived for purposes of interviewing Iberra. Iberra answered the door and informed police that the defendant was in a rear bedroom with her son. The defendant, who had fled through a window, was found beneath the porch of a neighboring building. Two days after arresting the defendant, North Adams police returned to Iberra's home to investigate the premises further and discovered, written on the screen of Iberra and Ceasar's television, a message reading in part, “You all die, bitch.”

The jury found the defendant guilty of murder in the first degree on theories of both deliberate premeditation and felony-murder. The predicate felony for felony-murder was the armed home invasion. The jury also convicted the defendant of armed home invasion and unlawful possession of a firearm while acquitting on charges of assaulting Higgs's daughter and fiancé by means of a dangerous weapon and intimidation of the fiancé.

2. Insufficiency of indictment. The defendant was indicted on a single charge of armed home invasion. The indictment specified that the charged offense occurred in North Adams on July 25, 2006, but did not identify the victim or the home. At trial the prosecutor presented evidence tending to show that the defendant (1) knowingly entered the dwelling place of both Higgs and Iberra; (2) knew that one or more persons were present within those dwelling places; (3) was armed with a handgun when so entering; and (4) used force against Higgs and threatened to kill the occupants of Iberra's apartment. See Commonwealth v. Smith, 458 Mass. 1012, 1013, 935 N.E.2d 770 (2010), quoting Commonwealth v. Doucette, 430 Mass. 461, 465–466, 720 N.E.2d 806 (1999) (elements of armed home invasion). Following the close of the Commonwealth's case the defendant moved for a required finding of not guilty due to the failure of the indictment to specify the offense for which the defendant was charged....

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