Commonwealth v. Woods

• Decision Date: 02 January 2014
• Parties: COMMONWEALTH v. Thomas A. WOODS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

466 Mass. 707

1 N.E.3d 762

COMMONWEALTH

v.Thomas A. WOODS.

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued Sept. 10, 2013.

Decided Jan. 2, 2014.

Myles Jacobson, Northampton, for the defendant.

Mary Lee, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

CORDY, J.

In the early morning hours of December 2, 2005, the defendant, Thomas A. Woods, and the victim, Paul Mullen, left a nightclub and agreed to meet later to smoke marijuana. The defendant drove to the local Hess gasoline station located in the city of Brockton, which was a popular late-night meeting place. When the victim telephoned the defendant to ask where he was, the defendant told him he was at Hess, and the victim said he would be right there. Once the victim arrived, the defendant asked him to sit in the driver's side seat and roll a marijuana “blunt,” while he went into the store to buy some pizza. While the defendant made idle conversation with the cashier inside the station, two masked men approached the vehicle and one shot the victim eight times, killing him almost instantly. The defendant went to the vehicle, laid the victim on the ground, and drove to his girl friend's house, where he was seen talking to a man similar in description to the shooter.¹ The defendant later gave two noncustodial interviews to police, and testified before the grand jury as a witness. After further investigation, he was indicted and tried for murder in the first degree. On May 20, 2009, the defendant was found guilty and sentenced to life in prison.

On appeal, the defendant argues that the evidence was insufficient to prove his guilt as a joint venturer. He contends that the Commonwealth's case, which relied almost entirely on circumstantial evidence, did not include any direct evidence that he knew the shooting was to take place. He further argues that the trial judge erred in finding that he was not a “target” of the investigation when he was called to testify before the grand jury, and that, because he was a “target,” he was entitled to be advised of his right not to incriminate himself pursuant to the Fifth Amendment to the United States Constitution before he testified. In the absence of such advice, the defendant contends that his testimony was improperly compelled. Additionally, the defendant argues that the judge erred in not including, sua sponte, an instruction pursuant to Commonwealth v. DiGiambattista, 442 Mass. 423, 447–448, 813 N.E.2d 516 (2004), in his final charge to the jury, where the defendant's interviews at the police station had not been recorded. Finally, the defendant urges this court to invoke its plenary power under G.L. c. 278, § 33E, to grant a new trial or, alternatively, to reduce the verdict of murder in the first degree.

We conclude that the evidence was sufficient to permit a jury to find the defendant guilty of murder in the first degree. We also conclude that there was no error in the judge's determination that the defendant was not a target of the investigation at the time of his grand jury testimony. However, we announce a prospective rule requiring self-incrimination warnings to those witnesses testifying before the grand jury who fall within a class of persons that we define as targets, or those reasonably likely to become targets, of the investigation. Finally, we also conclude that the defendant was not entitled to a DiGiambattista instruction where it was not requested at trial. Because we find no reversible error and discern no basis to exercise our authority under G.L. c. 278, § 33E, we affirm the defendant's conviction.

1. Background. We summarize the facts as the jury could have found them, in the light most favorable to the Commonwealth. Commonwealth v. Sanna, 424 Mass. 92, 93, 674 N.E.2d 1067 (1997).

a . Threats. The defendant and the victim were longtime friends and street-level marijuana dealers. At some point, however, a rift arose between them over a debt of $3,700 that the victim owed to the defendant. In August, 2005, the defendant told a mutual friend that the victim was “lucky he was such a good friend of [mine] because anybody else would have been killed a long time ago for the money he owed [me].” He later left the victim a voicemail message, where he angrily stated, “cracker, you better have my money, or I'm going to shoot you.”

In November, 2005, the victim's friend, Shawn Flaherty, attempted to purchase a pound of marijuana from the defendant for $1,300. Before the transaction took place, the defendant told Flaherty that “Paul Mullen owed him $3,700 for a long time now and that he was upset that it had been so long, he was extremely upset, that he wanted to kill Paul because of it, and that he would shoot him in the stomach.” He added, in a hostile tone, “I'll shoot that dude.” He then took Flaherty's money, did not give him his marijuana, and told him to get his money from the victim.

Later that month, the defendant saw Steven Deutsch, a friend of the victim, at a bar. Deutsch spoke to the defendant in an attempt to get Flaherty's money back. The defendant responded by saying, “tell Mully if he doesn't pay me my money, I'm going to shoot him in the stomach.” ²

b. The shooting. On December 1, 2005, the defendant drove the automobile owned by his girl friend, Erin Andrews, to a bar, where he spent some time socializing with two friends, Serena Epps and Takisha Turner. While there, he recognized another friend, Eldon Terry (Eldon), and the two left together and drove to Boomers nightclub.³ Once there, they met the victim and his friend, Shawn Montiero. The four went into the club and spent the night having drinks together.

After the nightclub closed, the defendant and the victim agreed that the victim would go home, retrieve some marijuana, and call the defendant, and then the two would meet and smoke it together. The defendant then drove with Eldon to the Hess station and parked at the rear of the right side of the building, knowing that this area was out of the view of any security cameras. The two got out of the vehicle, and when Eldon went to use the restroom, the defendant began chatting with women outside the station. He went into the Hess station to buy a cigar “blunt,” where he encountered, among others, Epps, Turner, and Tomiko Terry (Tomiko), the mother of his child. After noticing Eldon and “paying him no mind,” he continued “roaming around” the station and parking lot, periodically checking on his vehicle.

When he returned to his vehicle to begin preparing to smoke marijuana, the defendant received a cellular telephone call from the victim, who agreed to meet the defendant at the Hess station.⁴ The victim arrived almost immediately, and the defendant directed him to the open driver's side door of the vehicle. He told the victim to roll a blunt of marijuana while he went inside to purchase pizza and soda for both himself and the victim. Once inside the station, the defendant made idle conversation with the clerk, who did not know the defendant, for ten minutes. He did not attempt to purchase anything.

Meanwhile, as the victim sat alone in the driver's seat of the vehicle, two masked men walked to the back of the station. Jane Morais, an eyewitness sitting in a parked vehicle, noticed the two men and described one of them as a thin, “olive”-skinned man, wearing black shorts, a black mask, and a black hooded sweatshirt, standing about five feet, eight or nine inches tall. She described the other as a thin man wearing black pants, a black hooded sweatshirt, and a lighter jacket.

Moments later, Turner, who was standing outside the Hess station, saw a tall, thin, masked, very dark-skinned black man walk to the front of the vehicle and begin shooting at the victim. The shooter was wearing a black baseball cap, a black T-shirt, black jeans, and black shoes, under what appeared to be a black Carhartt-brand jacket. She described him as approximately six feet tall. The victim was shot in the head, chest, and abdomen, perforating his brain, heart, and viscera. He lost consciousness almost instantaneously, and died within minutes.

Turner ran into the store, found Eldon and Epps, and told them what had happened. She noticed the defendant standing in front of the station, after which he followed her inside and announced that “someone” had been shot. He also announced to the clerk, “somebody's laying on the side of [my] car.” He then told Turner and Epps, “you all need to get out of here,” and, “go home.” Turner, Epps, and Eldon then got into Epps's automobile and drove off, as the defendant told them to “get home safely, be careful.”

The defendant moved the victim's body out of the driver's seat and onto the concrete and drove to Andrews's house. Jessica Campbell, Andrews's cousin, heard the defendant yelling for Andrews and came to the window. She saw the defendant standing in the driveway, talking to a five foot ten inch tall black man. He was wearing a dark hooded sweatshirt and dark jeans.

Andrews eventually went outside, and noticed the other man walking away from the defendant while waving at him. She described him as a thin man, standing about five feet, seven or eight inches tall,⁵ wearing dark jeans, a black hooded sweatshirt, and a Carhartt-brand jacket. The defendant told Andrews that the victim had been shot and then, unbeknownst to her, discarded his blood-soaked clothes in her trash.

c. The interviews and grand jury. On December 2, 2005, the defendant drove from Andrews's house to the police station, where he voluntarily gave an interview to police as a witness. Two months later, in February, 2006, the police asked the defendant if he would be willing to submit to a second interview, to which he agreed. At the second interview, which took place on February 6, 2006, the defendant was read the Miranda rights, although the police did not intend to place him in custody and still viewed him as a...