Commonwealth v. Bonnett

472 Mass. 827

37 N.E.3d 1064

COMMONWEALTH

v.Darkens BONNETT.

SJC–11496.

Supreme Judicial Court of Massachusetts, Essex.

Argued May 8, 2015.

Decided Sept. 24, 2015.

Jeanne M. Kempthorne, Salem, for the defendant.

David F. O'Sullivan, Assistant District Attorney, for the Commonwealth.

Present: GANTS, C.J., CORDY, DUFFLY, LENK, & HINES, JJ.

Opinion

LENK, J.

The victim, Vincent Gaskins, was shot and killed in a parking lot across the street from a nightclub in Lynn. The shooting came on the heels of an argument between the victim and Brandon Payne, a friend of the defendant. A Superior Court jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation. The trial judge subsequently denied the defendant's motion for a new trial. On appeal from his conviction and from the denial of his motion for a new trial, the defendant claims that (a) his trial counsel rendered constitutionally ineffective assistance; and (b) on the eve of trial, the judge erred by denying the defendant's motion for disclosure of the identity of an informant who, according to a report prepared by the Federal Bureau of Investigation (FBI), had heard that Payne, not the defendant, had shot the victim. We reject the defendant's ineffective assistance of counsel claim, but remand for further proceedings in connection with his motion for disclosure of the informant's identity. We do not now see cause to exercise our authority under G.L. c. 278, § 33E, to reduce the verdict of murder in the first degree or to order a new trial.

1. Background. The evidence at trial included the following. Soon after 1 a.m. on a night in November, 2009, police found the victim lying on the ground in a parking lot across the street from a nightclub, with a gunshot wound in the area of his right ear. The victim was taken to the hospital, where he died two days later.

A .22 caliber Beretta firearm was located at the crime scene. The firearm did not have a magazine in it. Without a magazine, it

could have been loaded manually with one cartridge. A cartridge casing that had been discharged from the gun was found by the sidewalk of the parking lot. A spent projectile recovered from the victim's body was consistent with that of a .22 caliber projectile.

The events of the night of the shooting were described by Sheffery Johnson, the victim's cousin. Johnson testified that, on the day of the shooting, she picked up Payne in her truck. Johnson and Payne drove to a parking lot across the street from the nightclub. After they sat in the truck for some time, Johnson saw the victim leaving the nightclub. At about the same time, she saw a “dark skinned guy,” wearing a gray sweat suit, dancing outside the nightclub. Johnson identified that man in court as the defendant. According to Johnson, Payne had introduced her to the defendant, to whom Payne referred as “his boy Black,” “[a] couple days before” the shooting.

The victim and his girl friend walked over to Johnson's truck. Payne and the victim had been involved in “some tension” several months before. Payne got out of the truck and walked over to the victim. Then Payne, the victim, and the victim's girl friend stood behind the truck and conversed. Johnson, who noticed that the victim was “getting upset,” walked over and joined the group. Johnson heard Payne and the victim arguing. The victim said, “See, that's why I don't want you fucking with my sister”—apparently referring to Johnson—“because you got a smart-ass mouth.” Payne, for his part, asked the victim, “Why you keep throwing your hands in your pocket?” Johnson “s[aw] a shadow pass [her],” but did not “focus[ ] on who it was.”

Eventually, the victim suggested that he and Payne “go around the corner,” “shoot the ones,” and “dap up.” This meant, according to Johnson, that the two men would have a fistfight and, after one of them had won, would “shake hands, and that was going to be it.” Johnson demurred, announcing that “[t]here's no fighting [her] cousin,” grabbing Payne, and swinging him around back toward the truck.

As soon as Johnson's back was turned, she heard a “pop” from the direction of where the victim had been standing. When she turned around, Johnson saw the defendant standing over the victim's body, trying to tuck a gun into his pants,¹ and then running

off.²

Although, in court, Johnson identified the defendant as the man who had been dancing outside the club and who was standing over the victim's body, defense counsel's cross-examination, as well as the testimony of a police officer called by the defense, indicated that earlier she had thought otherwise. In December, 2009, Johnson was shown a photographic array. She picked out an individual who was not the defendant as a person involved with the shooting. Johnson selected the defendant's photograph as “familiar to her,” but said that she “did not think he was there that night.” She also told a police officer that “she did not get a good look [at] the face of the person after the shooting.”³

Johnson's trial testimony was corroborated, in part, by a confession reportedly made by the defendant to another witness, Joseph Burns. Burns was in Federal prison at the time of trial, and he acknowledged that he was cooperating with the authorities in the hope of earning a lighter sentence. According to Burns, he and the defendant had done “business” together: Burns had sold the defendant guns, and had bought “crack” cocaine from him. The guns were .25 and 9 millimeter and one .22 caliber. Burns stated that, several months after the shooting, in early 2010, he met the defendant in Lynn, to which the defendant recently had returned from New Jersey. The defendant told Burns that he and the victim “had words after the club,” that the defendant “told [the victim] [to] take that around the corner,” and that the defendant then “shot [the victim] in the face.” The gun “didn't have a clip to it so there was only one round in it, in the chamber.” On the day after that conversation, the defendant asked Burns to take him to the scene, to see if the firearm was still there. Police officers testified that the press were never informed that the gun found at the scene did not have a magazine in it, or that, in a confrontation involving the victim, words were exchanged about “going around the corner.”⁴

Forensic evidence tied the defendant to the crime. Two latent prints were identified on the weapon found at the scene. One, a palm print on the back strap of the gun, was of sufficient quality and quantity to be analyzed. A police crime-scene analyst testified that, in his opinion, the palm print on the gun was the defendant's.⁵ Biological matter detected on the gun contained a mixture of deoxyribonucleic acid (DNA) from at least two individuals. The defendant's DNA matched the major male profile found in that mixture. The probability that the DNA profile of a randomly selected African–American individual would match the major profile was one in 2.1 trillion.⁶ Payne was found to be a potential contributor to the mixture. The probability that a randomly selected African–American individual would be a potential contributor to the mixture was one in eight. The victim was excluded as a contributor to the mixture.⁷

Finally, five video recordings were presented at trial. Two were security video recordings filmed at establishments located near the crime scene. The recordings provided little information about the circumstances of the shooting, primarily because of the poor quality of one recording and the unhelpful vantage point of the other. The remaining recordings showed portions of police interviews

with the defendant, with Johnson, and with Burns.⁸ The interview with the defendant revealed that he had a distinctive tattoo that Payne had as well. The interview also showed the defendant denying, in the face of repeated accusations by police, that he had been at the club or the parking lot on the night of the shooting.

The jury were charged on the fourth day of testimony, and returned a guilty verdict on the same day. Represented by new counsel, the defendant filed a motion for a new trial, asserting that his trial counsel had provided constitutionally ineffective assistance. We remanded the motion to the Superior Court. After an evidentiary hearing, the motion was denied by the trial judge.

2. Ineffective assistance of counsel. The defendant points to an array of ways in which, in his view, the assistance provided by his trial counsel was ineffective. The standard that governs ineffective assistance claims is two-pronged. First, a defendant asserting such a claim must demonstrate “serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Boria, 460 Mass. 249, 252, 951 N.E.2d 10 (2011), quoting Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). We have emphasized that “[t]rial tactics which may appear questionable from the vantage point of hindsight, do not amount to ineffective assistance unless ‘manifestly unreasonable’ when undertaken.” Commonwealth v. Johnson, 435 Mass. 113, 133–134, 754 N.E.2d 685 (2001), quoting Commonwealth v. Haley, 413 Mass. 770, 777–778, 604 N.E.2d 682 (1992). A tactic that was reasonable in the circumstances, given the information available at the time, will not support an ineffective assistance claim “[r]egardless whether counsel intended the strategy.” Commonwealth v. Jenkins, 458 Mass. 791, 806, 941 N.E.2d 56 (2011).

The second prong of the ineffective assistance of counsel standard is, ordinarily, that counsel's inadequate performance “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, supra at 96, 315 N.E.2d 878. In an appeal from a conviction of murder in the first degree, we apply the test “more favorable to a defendant” of whether there is

a substantial likelihood that a...