Commonwealth v. Wardsworth

Decision Date19 June 2019
Docket NumberSJC-11125
Citation482 Mass. 454,124 N.E.3d 662
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Robert F. Shaw, Jr., Cambridge, for the defendant.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Lowy, & Kafker, JJ.


On the evening of September 20, 2007, two men opened fire at the Academy Homes residential complex, killing Urel Duncan and injuring Kevon Grant. The defendant and Shawn Daughtry subsequently were indicted on charges of murder in the first degree, G. L. c. 265, § 1 ; armed assault with intent to murder, G. L. c. 265, § 18(b ) ; and firearm offenses pursuant to G. L. c. 265, § 10(a ), (h ), and (n ), in conjunction with the shooting.

The Commonwealth's theory at trial was that the defendant was a member of the Walnut Park gang, and that both he and Daughtry previously had been shot at by members of the rival Academy Homes gang. The men went together to the Academy Homes complex for the purpose of retaliating; they intended to shoot the first people they saw. A Superior Court jury found the defendant guilty of all charges.1

Of the claims raised by the defendant on appeal, we determine that four constitute error: (1) Daughtry's statements should not have been admitted against the defendant; (2) the Commonwealth's gang expert gave improper testimony; (3) police witnesses should not have given their opinions as to the identity of individuals depicted in surveillance footage; and (4) the prosecutor engaged in impermissible argument during closing. In light of at least the first three trial errors, we conclude that the defendant's convictions must be vacated and set aside, and the matter remanded to the Superior Court for a new trial. We determine, however, that there was no error in the motion judge's denial of the defendant's motion to suppress.

Facts. We recite the facts the jury could have found, in the light most favorable to the Commonwealth, reserving additional facts for later discussion. See Commonwealth v. Platt, 440 Mass. 396, 397, 798 N.E.2d 1005 (2003). Around 9:20 P . M . on September 20, 2007, two men walked up a street in the Academy Homes housing complex in the Roxbury section of Boston. One wore a gray hooded sweatshirt; the other wore a black hooded sweatshirt.

Upon seeing four individuals sitting on a porch, the two men each pulled out a gun. Three to four shots were fired.2 Duncan was shot in the head and died the next day; Grant was shot in the ankle and survived. The perpetrators fled on foot.

Police officers arrived within minutes of the shooting. After speaking with witnesses, police began to search for two men wearing gray and black hooded sweatshirts. Police knew that the Academy Homes housing complex was the territory of the Academy Homes gang, and that there were rival gangs in the area. Accordingly, officers canvassed the territory of several rival gangs, including the Walnut Park area, which was associated with a gang known as the Walnut Park Dogs.

Approximately fifty minutes after the shooting, police stopped the defendant and Daughtry3 coming out of a building in Walnut Park. The defendant was wearing a gray hooded sweatshirt with a large zipper running down the middle, a white T-shirt, jeans, and light-colored sneakers. Daughtry was wearing a black hooded sweatshirt, black pants, and black shoes.

Police pat frisked the two men,4 separated them, and questioned them. While each denied involvement in the shooting, they gave conflicting statements about where they had been at that time. Daughtry claimed to have met with the defendant and a third individual, "Dee," fifteen minutes earlier. The defendant said that he had spent the afternoon with Daughtry, and that the two had just come from visiting the defendant's "Uncle Mike."

Police learned that the shooting had been captured on surveillance footage by an Academy Homes security camera. The men depicted on the security footage wore clothing similar to that which the defendant and Daughtry were wearing when they were stopped by police, and were of approximately the same height and weight.5

The defendant and Daughtry were transported to Boston police headquarters, where their hands and clothing were tested for gunshot residue. Daughtry's left hand tested positive; the defendant's hands and clothing tested negative. Both men were charged with murder in the first degree, armed assault with intent to murder, and firearms offenses. They were tried separately.

The Commonwealth's theory at the defendant's trial in November and December of 2009 was that the defendant and Daughtry went to the Academy Homes complex to retaliate for prior shootings in which they had been the targets. In February 2007, the defendant was shot and injured near his home. Seven months later, on September 10, 2007, Daughtry was shot at in the "general area" of Walnut Park.

Detective Sixto Merced of the Boston police department testified as a gang expert. He explained that, at the time of the shooting, the Walnut Park and Academy Homes gangs had an ongoing rivalry. Police believed that the defendant was a member of the Walnut Park gang, but they did not believe that Daughtry was a gang member. Although the victims were not members of any gang, they lived next door to members of the Academy Homes gang.

Prior proceedings. The defendant was convicted of all charges.

In November 2014, he filed a motion for a new trial. The defendant's appeal from the denial of that motion was consolidated with his direct appeal.

On appeal, the defendant points to numerous asserted errors. He argues that (1) Daughtry's statements to police were erroneously admitted as evidence against him; (2) the Commonwealth's gang expert impermissibly concluded that the defendant was a member of a gang, and his descriptions of general gang activities were unfairly prejudicial; (3) multiple police witnesses improperly opined that the individual depicted in security footage was the defendant; (4) the prosecutor engaged in impermissible argument in closing; (5) the defendant's motion to suppress should have been allowed; (6) trial counsel was ineffective because he did not challenge certain testimony relating to gunshot residue testing; (7) trial counsel did not properly challenge misleading evidence; (8) trial counsel should have called a particular witness; and (9) the denial of the defendant's postconviction motions for funds and an evidentiary hearing was error. With respect to the first four categories of error, we agree.

Standard of review. Where the defendant objected, we review to determine whether there was error and, if so, whether "there is a reasonable possibility that the error might have contributed to the jury's verdict," or whether we can be assured that the evidence "did not influence the jury, or had but very slight effect" (citations omitted). See Commonwealth v. Sullivan, 478 Mass. 369, 376, 85 N.E.3d 934 (2017) ; Commonwealth v. Carriere, 470 Mass. 1, 7, 18 N.E.3d 326 (2014). Where the preserved error is constitutional, "we evaluate the admission of constitutionally proscribed evidence to determine whether it was harmless beyond a reasonable doubt." See Commonwealth v. Nardi, 452 Mass. 379, 394, 893 N.E.2d 1221 (2008). Where the defendant did not object, we review for a substantial likelihood of a miscarriage of justice. Carriere, supra at 8, 18 N.E.3d 326, citing Commonwealth v. Wright, 411 Mass. 678, 682, 584 N.E.2d 621 (1992), S.C., 469 Mass. 447, 14 N.E.3d 294 (2014). "In analyzing a claim under the substantial likelihood standard, we review the evidence and case as a whole and consider whether any error made in the course of the trial was likely to have influenced the jury's conclusion." Commonwealth v. Berry, 457 Mass. 602, 618, 931 N.E.2d 972 (2010), S.C., 466 Mass. 763, 2 N.E.3d 177 (2014).

Discussion. 1. Coventurer statements. At trial, a number of police officers testified to statements made by Daughtry after the shooting.6 They pointed out inconsistencies between Daughtry's statements about his activities near the time of the shooting and the defendant's statements. From this, the prosecutor argued that the statements proved the two men were lying.

The first statement was made within approximately one hour of the shooting, when Daughtry told Sergeant Thomas Teahan of the Boston police department that he had been in the area "a short time," and had met with the defendant only fifteen minutes earlier. Daughtry said that he and the defendant briefly had been at the home of someone named "Dee," and he provided an address. The second statement was given several hours later, at Boston police headquarters; at that time, Daughtry told Detective Dennis Harris that he had been "smoking a blunt," alone, at the time of the shooting. He heard four or five gunshots, walked "out front," and encountered the defendant walking down the street with Dee. According to Daughtry, the two men were wearing gray and black hooded sweatshirts, respectively.7

The defendant asserts that Daughtry's statements should have been excluded as hearsay, and also that their admission violated his rights to confrontation under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.8

a. Hearsay. i. Joint venturer statements. Massachusetts recognizes a joint venture exemption to the hearsay rule. See Commonwealth v. Wood, 469 Mass. 266, 280, 14 N.E.3d 140 (2014) ; Mass. G. Evid. § 801(d)(2)(E) (2019).9 Just as a defendant's statements are admissible against the defendant, so too are certain statements made by a defendant's coventurers. The exemption applies only where a defendant's coventurer makes a statement both "during the pendency of the cooperative effort" and "in furtherance of its goal" (citation omitted). See Commonwealth v. Raposa, 440 Mass. 684, 659, 801 N.E.2d 789 (2004).

The rationale for the exemption is twofold. Se...

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