Com. v. Williams

882 N.E.2d 850

450 Mass. 894

COMMONWEALTH v. Jameel WILLIAMS.

No. SJC-09530

Supreme Judicial Court of Massachusetts. Norfolk.

Argued January 11, 2008.

Decided March 24, 2008.

Stephen B. Hrones, Boston (Michael Tumposky with him) for the defendant.

Varsha Kukafka, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, & BOTSFORD, JJ.

SPINA, J.

The defendant was convicted of murder in the first degree in connection with the death of Gregory Cormier, under theories of deliberate premeditation and extreme atrocity or cruelty, and of armed assault with intent to murder Wayne Jackson on June 10, 1994, in Milton. On appeal he argues that a new trial is required because (1) the jury were instructed on both principal and joint venture theories of liability but the evidence was insufficient to support a theory that the defendant was the principal, and the jury were not asked to specify the theory of liability on which their verdict rested, cf. Commonwealth v. Cannon, 449 Mass. 462, 475, 869 N.E.2d 594 (2007); (2) the judge should have given the jury a missing witness instruction; and (3) in his closing argument the prosecutor engaged in multiple misconduct, including giving unsworn testimony corroborating the testimony of the Commonwealth's key witnesses and interjecting his own credibility into the Commonwealth's plea agreements with key witnesses. We conclude that the prosecutor's closing argument is so replete with prejudicial improprieties that the convictions must be reversed and the case remanded for a new trial.

1. Background. The jury could have found as follows. Shortly before 11 P.M. on June 10, 1994, police were dispatched to a shooting that occurred near the intersection of Lothrop Avenue and Churchill Street in Milton. When they arrived they saw a bullet-riddled Mazda sedan automobile that had rolled to a stop in some bushes. Its engine was running, the headlights were on, and music was blaring. The driver, Gregory Cormier, was dead. The passenger, Wayne Jackson, suffered gunshot wounds to the neck and chest, but he survived. Cormier suffered four gunshot wounds to his back, one of which caused fatal internal hemorrhaging.

Police recovered eight nine millimeter Luger caliber cartridge casings near the sidewalk in front of 22 Churchill Street in the vicinity of the car, all fired from the same semiautomatic pistol. Three damaged lead projectiles capable of being fired from a .38 special caliber revolver or a .357 magnum revolver were recovered from the battery in the engine compartment of the Mazda, from the driver's side door mirror of the Mazda, and from the stairs at 1 Lothrop Avenue. It could not be determined if they were fired from the same gun. Lead projectile fragments were recovered from Jackson's clothing, Churchill Street, the Mazda windshield wiper deck, the Mazda passenger door "pillow," and the Mazda driver's door. No determination could be made as to their type of ammunition or the type of gun from which they were fired. The same is true of the lead core portion of a jacketed projectile recovered from Cormier's clothing.

Six nine millimeter .38 caliber class full metal jacketed spent projectiles, all fired from the same gun, were recovered from Cormier's T-shirt, Cormier's right jaw,¹ Jackson's clothing, the trunk of the Mazda, the driver's side door "pillow" of the Mazda, and the floor below the Mazda front passenger seat. It could not be determined, without having the suspect gun, whether the same gun that discharged the eight cartridge casings also fired the six nine millimeter .38 caliber class full metal jacketed spent projectiles. The six spent projectiles, which had the same identifying rifling characteristics, could have been fired from any one of a variety of guns, including a nine millimeter Luger semiautomatic pistol and a .357 magnum revolver. It could not be determined which gun fired those projectiles without the suspect gun. At least two and possibly more guns were used in the shooting. None was recovered.

Five days before Cormier was killed, Ato Murrell (Ato) was shot to death on Belnel Road in the Hyde Park section of Boston. Ato's brother, Kenyatta Murrell (Murrell),² and the defendant were members of a Hyde Park gang called the Belnel Dogs. They discussed retaliating against the Greenfield Browns, a rival gang from Hyde Park, for Ato's death. Cormier was associated with the Greenfield Browns, although he had moved to the town of Milton for his high school years. On June 10, 1994, Murrell talked to Belnel Dogs members Kent Grays, Marcelus Durham, James Peebles, and Albert Banks about retaliating against the Greenfield Browns for Ato's killing.

On the evening of June 10, 1994, the defendant, Murrell, and Lonnie Smith were in a car driven by Shawn Castle.³ The defendant spotted Cormier's car and directed Castle to follow it. They followed the car into Milton. When it turned down a side street and the brake lights went on, Murrell told Castle to turn down the next street. It was a dead-end street. Castle parked his car. The defendant and Murrell got out of the car and disappeared. Within thirty seconds Castle heard a series of popping sounds. The defendant and Murrell reappeared shortly thereafter, running back to Castle's car. Murrell told Castle to pull out. Murrell was complaining that his gun had jammed on him again. After several attempts in the car he freed the obstruction. When they arrived at Belnel Village in Hyde Park, the defendant and Murrell got out of the car. Murrell looked skyward and screamed, "We got him Cube, we got him. We killed him." Cube was the nickname of Murrell's deceased brother.

Minutes later Castle saw them again, and he gave them a ride to Peebles's house. On the way they stopped a car with Peebles, Grays, Durham, and Banks inside. Murrell told them that things were going to get "hot" in Belnel Village and that they should meet at Peebles's house. After they arrived at Peebles's house, Murrell and the defendant celebrated their success by regaling fellow gang members with details of the shooting. Murrell announced that he had just shot somebody in Milton but they did not know whether they had killed anybody. The defendant told them if anybody said anything, there would be problems. Murrell told Grays his first shot went through the back window and must have hit the driver because all motion in the car stopped and the car started rolling. He said they ran to the side of the car and started shooting through the side window. The defendant produced a pearl-handled .357 magnum revolver and handed it to Peebles. The defendant told Durham that he had "straightened something up in Milton." He said that he jumped over some fences and ran up to the Mazda and shot into the car. Murrell told him to be quiet and stop talking so much. The defendant and Murrell talked about taking showers to wash off the gunpowder from their hands and bodies, and changing clothes. They both went upstairs and showered.

The next day, at Ato's funeral, Murrell told Durham they followed the Mazda, jumped over some fences, and shot into the back of the car. When the car started to roll, they ran up to it and shot through the driver's side window. The car kept rolling and they fled. Murrell said he used a nine millimeter gun and the defendant used a .357. The defendant bragged that he did more work because his gun was bigger. Murrell told Castle at the funeral that he shot into the back of the car and through the side window; he said the defendant shot from the front of the car. At a later date Murrell told Grays he used a nine millimeter Browning and the defendant used a .357 magnum.

2. Sufficiency of evidence of principal liability. The defendant argues that the judge erred by submitting questions of both principal and joint venture liability to the jury in the absence of evidence that the defendant fired any shot that struck Cormier in the back. Because the jury were not required to specify the theory of liability on which they found the defendant guilty of murder, he continues, there is no way of knowing if even one juror may have voted to convict on a theory of principal liability. The Commonwealth contends the evidence supports a finding that the defendant acted as principal.

Our cases have held that a new trial is required where a jury are not required to specify the theory of liability on which they rested their verdict, and the evidence supports a finding of either principal or joint venture liability, but not both. See Commonwealth v. Rolon, 438 Mass. 808, 819-820, 784 N.E.2d 1092 (2003) (evidence sufficient to establish joint venture liability, but insufficient to establish principal liability); Commonwealth v. Green, 420 Mass. 771, 779-781, 652 N.E.2d 572 (1995) (evidence sufficient to establish principal liability, but insufficient to establish joint venture liability). However, where the evidence establishes that two persons are culpable for a crime, but the evidence fails to establish who was the principal and who was the joint venturer, a jury are warranted in inferring that both were either the principal or the joint venturer. Commonwealth v. Chipman, 418 Mass. 262, 267-269, 635 N.E.2d 1204 (1994). Commonwealth v. Cohen, 412 Mass. 375, 380, 589 N.E.2d 289 (1992). Commonwealth v. Mahoney, 406 Mass. 843, 847-848 n. 3, 550 N.E.2d 1380 (1990).

Viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), the evidence supports a finding that the defendant acted as the principal. Projectiles recovered from Cormier's shirt and jaw, and from the inside of the car, could have been fired from a .357 magnum, the type of gun the defendant was using. The defendant bragged about doing more work than Murrell. There was evidence that he fired into the rear of the car, and into the driver's side window. Consequently, there was evidence from which the...