Commonwealth v. Walker, 200410099

CourtSuperior Court of Massachusetts
Writing for the CourtJudge (with first initial, no space for Sullivan, Dorsey, and Walsh): Brassard, Raymond J., J.
Citation09 MBAR 0026
PartiesCommonwealth v. Andre Walker(fn1)
Docket Number200410099
Decision Date11 February 2009


Andre Walker(fn1)

No. 200410099

Superior Court of Massachusetts

February 11, 2009

Opinion No.: 105767

As-is Docket Number: 2004-10099

Venue: Suffolk

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Brassard, Raymond J., J.


On December 9, 2005, a jury convicted defendant Andre Walker of murder in the first degree of Francis Stephens based on theories of deliberate premeditation and extreme atrocity or cruelty, in violation of G.L.c. 265, §1. The jury also convicted the defendant of armed assault with intent to murder Jose Astacio, in violation of G.L.c. 265, §18(b); and of unlicensed possession of a firearm, in violation of G.L.c. 269, §10(a). (fn2)

The defendant now moves for a new trial on the grounds that he received ineffective assistance of counsel in violation of his rights under art. 12 of the Declaration of Rights of the Massachusetts Constitution and the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. For the following reasons, the defendant's motion is denied.


In 2004, a Suffolk County grand jury indicted both defendant Andre Walker and codefendant Willie Johnson for the murder of Francis Stephens and for unlicensed possession of a firearm while not at home or at work. The grand jury also indicted the defendant for armed assault with intent to murder Jose Astacio and indicted the codefendant for assault and battery of Astacio by means of a dangerous weapon. Proceeding on alternate theories of principal and joint venture liability with respect to the charge of murder, the Commonwealth tried the defendant together with the codefendant before the Court sitting with a jury from November 9, 2005, to December 9, 2005.

As explained in the prosecutor's opening statement, the Commonwealth's theory of the case was that Francis Stephens and Jose Astacio were in the wrong place at the wrong time, mistakenly targeted for retaliation by the defendant and codefendant in an ongoing feud between rival groups in the Dorchester section of Boston.

The theory advanced at trial by both the defendant and codefendant was misidentification. Defense counsel(fn4) in her opening statement emphasized that police overzealousness and an inadequate investigation played a significant role in the misidentification of the defendant. Both defense and codefense counsel represented to the jury that the evidence would show that the Commonwealth's key witnesses were not credible, largely on the grounds of having received immunity or other consideration for their cooperation and forthcoming testimony.

The Court recites in detail the evidence presented to the jury during trial in 2005 and at the evidentiary hearing on the defendant's motion for a new trial in 2008; the Court reserves further details for discussion in conjunction with the specific issues raised.

1. Commonwealth's case

On November 14, 2005, the Commonwealth called Monica Samuel, Francis Stephens's mother, who testified to the following. In September 2000, she and her eighteen-year-old son had been living for about a year in a two-family house on McLellan Street, which was within walking distance of Blue Hill Avenue in Dorchester. Her son had graduated that spring from high school, where he had been captain of the football team. Over the summer he was taking classes at the request of his football coach, who was trying to get him into college, as well as working, sometimes full-time, at Boston Medical Center.

Her son often spent time with a friend who lived in Franklin Field, and at about 7:00 P.M. on September 16, 2000, Samuel received a call from her son, who said that he was over at the friend's house. Later that night, while at her sister's house, Samuel received a telephone call that her son had been shot, and, after arriving at Boston Medical Center, she learned that he had been killed. The following day, she identified his body at the medical examiner's office. She did not know of any conflicts between her son and anyone else and could see no reason why he had been shot and killed.

Neither defense counsel nor codefense counsel asked Monica Samuel any questions.

The Commonwealth next called John Rice, Francis Stephens's football coach at the Jeremiah Burke High School, who testified to the following. He had known Francis Stephens well and, after Stephens's graduation, Rice and others at the school had worked with Stephens to get him into college. On September 16, 2000, Stephens, a volunteer assistant coach for the 2000 football season, went with the football team to Chelsea High School for a game. Rice last saw Stephens around 1:00 P.M., after the team returned to the Burke High School. Rice did not notice anything unusual or worrisome about Stephens's behavior on that day.

Neither defense counsel nor codefense counsel asked John Rice any questions.

The Commonwealth next called Jonathan Baskin, who testified to the following. At the time of trial Baskin worked for the Boston public works department. He had three children, aged six to twenty-four, and lived with them at 11 Harlem Street, very close to the intersection of Harlem and Glenway Streets in Dorchester. On September 16, 2000, he was home with his family, when at around 8:00 P.M. he heard "a loud bang, a shot." He jumped up and looked out his third-floor bedroom window toward Glenway Street, where he saw a dark-skinned African American man firing a gun in a downward direction. The shooter, who was "average height"-five feet, eight to ten inches tall, was dressed in dark clothes and standing on the Glenway Street sidewalk near a light pole at the corner of Glenway and Harlem Streets. While Baskin looked out the window, he heard around eight gunshots. The shooter then jumped into a car that "took off" up Glenway Street. Baskin got a good look at the car and described it to police when they arrived; later, Baskin saw the car again on a nearby street. Baskin testified that two photographs fairly and accurately depicted the car which he had seen that night (exhibits 1 and 2). Baskin was not able to see the face of the shooter.

On cross-examination by defense counsel, Jonathan Baskin testified to the following. After the shootings on September 16, 2000, he told police that he had seen an individual, who may have had braids in his hair, dressed all in black with a white T- shirt. Baskin also told police that the shooter was five feet, six or seven inches tall.

On cross-examination by the codefense counsel, Jonathan Baskin testified to the following. The shooter was "average height_... five six to five eleven." The shooter got into the passenger side of the car. Baskin did not see a driver but denied that the shooter slid into the driver's side of the car: "It took off too fast."

On redirect examination, Jonathan Baskin acknowledged that he had to bend over and stick his head out the window to see the shooting.

The Commonwealth next called Jose Astacio, who testified to the following. He had been incarcerated in federal prison since a 2002 conviction for "distribution" in Brockton. When asked whether in September 2000 he knew a person by the name of Francis Stephens, Astacio answered, "I want to plead the Fifth." In response to a question from the Court, Astacio testified to having been shot on September 16, 2000. When Astacio then stated again his desire "to plead the Fifth Amendment," the Court called a recess, and Astacio stepped down from the stand.

The Commonwealth next called Boston Emergency Medical Services (EMS) paramedic Roger Aiello, who testified to the following. On September 16, 2000, at approximately 8:15 P.M. he and his partner responded to Glenway and Harlem Streets, where they treated two shooting victims. One victim, who Aiello later learned was Francis Stephens, had three apparent head wounds and was lying face down on the sidewalk-"no movement, no breathing, no pulse." Stephens was later declared dead soon after he was transported to Boston Medical Center. The other victim, who Aiello later learned to be Jose Astacio, was in stable condition with a gunshot wound to his right thigh. While treating Astacio, paramedics observed that he "had a prior gunshot wound on his chest wall from months earlier[,] before September 16th."

Neither defense counsel nor codefense counsel asked Roger Aiello any questions.

The Commonwealth next called Boston police Sergeant Detective Randall J. Halstead, who testified to the following. On September 16, 2000, Sergeant Detective Halstead responded to the corner of Glenway and Harlem Streets, where numerous uniformed officers and emergency medical personnel were already present. As Sergeant Detective Halstead began to process the crime scene, he observed blood stains along the sidewalk and spent shell casings scattered along the sidewalk and in the crosswalk. He also noticed a set of keys and a silver folding knife on the sidewalk. At trial he described the ballistics evidence found at the scene: numerous spent shell casings, a spent projectile, a "pockmark" in the brick wall of a building from a bullet ricochet, three bullet strikes on a building, and a bullet fragment.

Defense counsel asked no questions of Sergeant Detective Halstead.

On cross-examination by codefense counsel, Sergeant Detective Halstead testified to the following. He was in charge of another crime scene in the area of Fowler and Greenwood Streets and had assigned Officers Lyden and Christopher Carroll to secure that scene. Sergeant Detective Halstead received information that a Boston Red Sox hat was found in that area but was not involved in finding it.

On November 15, 2005, the Commonwealth called Sharod Clark, who testified to the following. At the time of trial, he was twenty-five years old. In the summer of 2000, he lived with...

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