Commonwealth v. Woodbine

• Decision Date: 28 March 2012
• Docket Number: SJC–10407.
• Citation: 461 Mass. 720,964 N.E.2d 956
• Parties: COMMONWEALTH v. Linrose WOODBINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

461 Mass. 720

964 N.E.2d 956

COMMONWEALTH

v.Linrose WOODBINE.

SJC–10407.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 11, 2011.Decided March 28, 2012.

James L. Sultan, Boston, for the defendant.

Macy Lee, Assistant District Attorney, for the Commonwealth.

Present: SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.

DUFFLY, J.

On the night of December 15, 2003, the victim, Aston Dwayne Thompson, was shot and killed as he walked to his car parked behind an apartment building. Two guns were fired at the victim, and a third was fired into the street in front of the apartment building from the rear. Of the possible assailants, only one, the defendant, was apprehended; he was found near the scene of the shooting with a gunshot wound to the leg. A Superior Court jury convicted the defendant of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.¹

The defendant's claims on appeal relate largely to statements he made to a detective while he was in custody in a hospital recovering from the gunshot wound. For strategic reasons, the detective chose not to record the first part of that interrogation, but he did record the second. After a hearing on the defendant's motion to suppress the entire interrogation, a Superior Court judge ruled that the statements made in the initial, unrecorded portion were admissible, but ordered that the recorded statements be suppressed.² The defendant contends that the motion judge erred in failing to suppress the unrecorded statement, and also that the trial judge erred in permitting the interrogating detective to testify to his memory of the unrecorded statement where the source of that testimony was a transcript of the suppressed recorded statement that the detective had reviewed prior to trial.

The defendant asserts errors also in the dismissal of an unsworn seated juror during empanelment; certain limitations imposed by the judge on the defendant's cross-examination of a witness; and statements made by the prosecutor during closing argument that were not supported by the evidence. The defendant requests further that we exercise our authority pursuant to G.L. c. 278, § 33E, to reduce his conviction to a lesser degree of guilt or to order a new trial. Because a number of aspects of the trial, among them the detective's testimony concerning the defendant's unrecorded statements, prejudicial limitations on the defendant's right to cross-examine the detective, and certain of the prosecutor's remarks in closing argument, created a substantial likelihood of a miscarriage of justice, the defendant is entitled to a new trial.

Background. We summarize facts the jury could have found, reserving some details for later discussion. During the evening hours of December 15, 2003, the victim was at his friend Robert Hylton's apartment in the Dorchester section of Boston. Also in the apartment were Hylton's wife and son, and at least five other men who were socializing there.³ Around 9:45 p.m., the victim left to purchase beer. As he walked to his automobile, which was in the parking area behind the building, multiple shots were fired; he suffered gunshot wounds to the head, chest, abdomen, arm, and wrist.

Hearing the gunshots, another guest demanded a weapon, and Hylton handed him something in a small paper bag. A short time later, more shots were heard coming from the front of the building. A private security guard who was working in the area, Wilson Jean–Philippe, was seated in his parked automobile a few houses down the street from Hylton's building when he heard the sound of gunshots. A man he later identified as the defendant ran up to his vehicle and, approaching on the driver's side, asked for help. Jean–Philippe refused the request. The defendant, who was bleeding from his left leg, began banging on the driver's side window, reiterating his pleas. When the defendant reached for something in his pants, Jean–Philippe drove away. Some time later, Jean–Philippe returned to where he had been parked. He found a gun on the ground with what appeared to be blood on it, and notified police officers at the scene.

When emergency personnel arrived at Hylton's apartment building, the victim was bleeding heavily from his wounds. He was transported by ambulance to a hospital, where he died of his injuries. Police interviewed Hylton and five of the men who had been in the apartment⁴; they also searched the surrounding area. Several shell casings were recovered in front of Hylton's apartment building. The gun found by Jean–Philippe, a .357 caliber semiautomatic with blood on the grips and barrel, was recovered near a neighboring building; the defendant was a possible source of deoxyribonucleic acid (DNA) found on the gun. A bullet recovered from the victim's body could have been fired from that weapon, and at least one other bullet, recovered from a pool of blood beneath the victim, also could have been fired from it.

A trail of blood led from the area where Jean–Philippe found the gun to the access ramp of a nearby building. Police found the defendant underneath the ramp, lying in the snow and bleeding from an apparent gunshot wound to his leg; he was in visible pain but responsive. After he was placed in an ambulance, Detective Sergeant Daniel Keeler read him the Miranda warnings from a card.⁵ Shortly after midnight, Keeler arrived at the hospital with two other detectives; he again recited the Miranda warnings and obtained some biographical information from the defendant, but the defendant stated that he did not want to talk at that time, and the detectives left without further questioning.

On December 16, 2003, the day after the shooting, a warrant issued for the defendant's arrest on the murder charge. Shortly before 5 p.m., Keeler returned to the hospital with Detective John Callahan. The defendant was lying in bed with an intravenous tube attached to one arm; he occasionally grimaced in pain, but was able to converse with the detectives. Keeler informed him that he was being charged with murder and recited the Miranda warnings from memory.⁶ Keeler then told the defendant that he was in a “heap of trouble” but there were “two sides to every story,” and he encouraged the defendant to talk to him. The defendant, who was upset and crying, asked to speak just with Keeler. Callahan left them alone in the room for ten to fifteen minutes; during that time, the defendant expressed concern for the safety of his family, then provided details of the shooting, including descriptions of two accomplices and his motive for participating. Afterward Callahan returned to the room, whereupon Keeler recounted what the defendant had told him as the defendant nodded in affirmation.⁷

Proceedings. To provide context for our later discussion, we summarize certain pertinent proceedings.

1. Grand jury. When Keeler appeared before the grand jury a few weeks after the murder, he testified that after he had served the murder warrant on the defendant at the hospital and advised the defendant of his Miranda rights, the defendant told him that he and another, unnamed individual had been solicited by a man to rob the victim; that they positioned themselves behind some trees in the back of an apartment building; and that the defendant and the unnamed individual approached the victim and shot him several times.⁸ Asked to describe the defendant's “emotional state in terms of his wishes to talk to you,” Keeler responded, “Oh, [the defendant] expresses several times, ‘I want to talk to you. I want to talk to you.’ He actually talked to me a bit in the beginning alone, all post-Miranda. I then summoned Detective Callahan into the room. We took a tape-recorded statement from [the defendant], which chronicled the robbery, the shooting, and what led up to it.” A copy of the tape recording was provided to the grand jury.

2. Hearing on the motion to suppress. A hearing on the defendant's motion to suppress was held in December, 2005, two years after the shooting. Defense counsel had made a transcript of the defendant's recorded statement and, in anticipation of his cross-examination of Keeler, provided copies to him and to the prosecutor. Keeler stated that he had reviewed the transcript for five to ten minutes immediately prior to the hearing.

Keeler testified that when he and Callahan went to the defendant's hospital room around 5 p.m. on December 16, 2003, and told the defendant that he was going to be charged with murder, the defendant became upset and, after a brief conversation, asked to speak to Keeler alone. According to Keeler, the conversation that followed was not “that long.” Keeler testified that when Callahan left the room, “[the defendant] was crying, I'm in a lot of trouble, blah, blah, blah, blah.... He gave me a brief little thing in the beginning of what happened. That it wasn't supposed to go down that way.” ⁹ Keeler said that he had neither taken notes nor written a report about the defendant's initial statement, and explained that he had chosen not to tape record that part of the interrogation because doing so might have had a “chilling effect” on his interactions with the defendant.¹⁰

The motion judge denied the defendant's motion to suppress the unrecorded statement, finding credible the testimony that Miranda warnings had been given and that the defendant's initial statement was made voluntarily. He allowed the motion to suppress the recorded statement, however, because he concluded that the second portion of the interview took place after the defendant had invoked his right to counsel.¹¹

3. Motions in limine. During the trial, on the day before Keeler was to testify, defense counsel made an oral motion to prevent Keeler from refreshing his recollection about the unrecorded statement with the transcript of the suppressed statement. Learning that Keeler had already reviewed the transcript, the judge concluded the issue was moot. The following...