Commonwealth v. Caldwell

459 Mass. 271

945 N.E.2d 313

COMMONWEALTH

v.Thomas CALDWELL.

SJC–10321.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Dec. 10, 2010.Decided April 8, 2011.

Leslie W. O'Brien, Boston, for the defendant.Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.Present: IRELAND, COWIN, CORDY, BOTSFORD, & GANTS, JJ.¹GANTS, J.

A jury in the Superior Court convicted the defendant on two charges of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony murder for the shooting deaths of Nathan Lewis and Kevin Thompson. The defendant was also convicted of assault and battery by means of a dangerous weapon, armed assault with intent to rob, possession of a firearm in the commission of a felony, and on three charges of armed robbery while masked.²

On appeal, the defendant argues that he should be granted a new trial because (1) the prosecutor elicited twice from a witness that the defendant was a drug dealer, which testimony the judge ordered struck; (2) the prosecutor improperly suggested in his closing argument that the Commonwealth knew whether a cooperating witness was telling the truth by arguing that the witness would not risk getting “caught in a lie” because lying would constitute a violation of his plea agreement; (3) the judge violated the defendant's right to a public trial pursuant to the Sixth Amendment to the United States Constitution by ejecting some of the defendant's family members and supporters from the court room during sentencing without having made findings that would justify a partial closure of the court room; and (4) the judge denied defense counsel adequate time to prepare his closing argument. Under Commonwealth v. Moffett, 383 Mass. 201, 418 N.E.2d 585 (1981), the defendant filed a pro se brief arguing that the judge erred in (1) admitting in evidence tape recorded telephone conversations between the defendant and a cooperating witness where the cooperating witness was acting as an agent of the government and the defendant was without benefit of counsel; (2) instructing the jury on joint venture; and (3) not instructing the jury on felony murder in the second degree. We conclude that the judge's rulings were either not error or not prejudicial error, and affirm the defendant's convictions. After a complete review of the record, we also conclude that there is no basis to exercise our power under G.L. c. 278, § 33E, to reduce his murder convictions to a lesser degree of guilt or to order a new trial.

Background. Based on the evidence at trial, the jury could have found that, on the evening of December 11, 2006, Osbourne Myrie and Raymond Lucia were renovating the first-floor apartment of a three-family home at 92 Marlborough Street in Springfield owned by Nathan Lewis. At approximately 7:15 p.m., while Myrie was cutting tile in the bathroom, and Lewis, Lucia, and Lewis's friend, Kevin Thompson, were in or near the dining area, two masked men entered the dining area of the apartment and a third masked man ran down the hallway of the apartment toward the bathroom. The third masked man confronted Myrie in the bathroom with a firearm and pipe, and then walked away. Another masked man, also armed with a firearm, then approached Myrie and demanded money. Myrie told him he was working and had no money, and the man left the bathroom. Myrie looked into the dining area, heard what sounded like a gunshot, and hid in a corner of the basement.

In the dining area, Lewis, Thompson, and Lucia emptied their pockets, but the intruders kicked Lucia, asking him, “Is that all you got?” As the intruders headed toward the front door, one said, “I'm not leaving here without shooting somebody,” and then shot Lewis three times, once in the head. The man then shot Thompson and Lucia once in the back and left.³ Lewis and Thompson died as a result of their gunshot wounds, but Lucia survived and testified at trial.

The first emergency 911 telephone call to the Springfield police regarding the incident was received at 7:26 p.m. Also at 7:26 p.m., Willie Sherrod, a friend of the defendant, telephoned the defendant, who said that he was “tied up doing something,” and would call Sherrod back. Later that evening, the defendant returned the telephone call, and told Sherrod that he “just pulled a jux” and that “he might have merced someone.” Sherrod explained that “jux” and “merced” were words used in “street talk,” and that “pulling a jux” means to commit a robbery, while “mercing” someone means to kill someone. Still later that evening, Sherrod spoke again by telephone with the defendant, who explained that, during the robbery, “the dude tried to grab” him, so he “shot him in the stomach,” and when “the dude tried to run,” he “shot him in the back,” and when the “dude” acted like “he was reaching for something,” he “shot him in the back of the head.” The defendant also said that he had committed the robbery with “Chuck” and Chuck's brother on the “spur of the moment,” and that he got “straight money” of about $14,000. The defendant said that he was going to split the money and get out of town.

That evening, the defendant telephoned Jamesha Little, the mother of his child, and told her, “Do me a favor. Pack my stuff.” When she asked what happened, he said, “Nothing. Just pack my stuff,” and explained that he wanted her to pack all of his clothes, both dirty and clean. She placed all his clothes in a suitcase, but the defendant did not come by that night to retrieve them. When she asked him the next day where he had spent the night, he said he stayed at Chuck's house.

Chuck, identified as Charles Reed, the defendant's best friend, had dropped off Shannon Hottin, the mother of his child, at her parents' home in Springfield after Hottin got off work at 5 p.m. on December 11, and left in her motor vehicle, a Honda Accord.⁴ He did not return to Hottin's parents' house until some time after 8:19 p.m. Reed was residing in December, 2006, at his grandmother's house at 98 Marlborough Street in Springfield, a few doors down the street from the shootings. On December 12, 2006, at 3:27 p.m., according to videotape surveillance, the defendant was with Reed at the Mohegan Sun Casino in Connecticut.

On December 12, Joseph Beany was checking dumpsters in search of cans and bottles in order to collect the recycling deposit. In one dumpster behind an apartment house in Springfield, he found a bag that contained a wallet with no cash, keys, a pair of boots with a red brown stain on one of them, a pair of pants, and a shirt. He left the boots, pants, and shirt in the dumpster, but placed the wallet and keys on top of a recycling bucket. Later that day, Gail Archie found the wallet and keys, called a telephone number she found in the wallet, and agreed to bring the wallet and keys to the police station, which she did. On the morning of December 13, a Springfield police sergeant retrieved a pair of tan boots and blue jeans from the dumpster behind the apartment house.⁵

Elizabeth Levandowski, a deoxyribonucleic acid (DNA) analyst with the Massachusetts State police, tested a cutting from the left leg of the jeans that contained the reddish brown stain and obtained a complete DNA profile, which she compared to the DNA profile for Lewis, Thompson, Lucia, and the defendant. She determined that Lewis “could have been the source” of the DNA, and that the probability of a randomly selected individual having that same DNA profile is approximately one in 2.31 quadrillion of the Caucasian population; one in 1.339 quadrillion of the African–American population; and one in 3.497 quadrillion of the Hispanic population.⁶

Levandowski also tested the boots and jeans for “wearer” DNA, examining swabs taken from the inside of the boots and the “wear areas of the inside of the jeans,” and obtained only a partial DNA profile. The partial DNA profile from the inside of the boots was a mixture of DNA from at least three individuals. The defendant was included as a potential contributor in this DNA mixture, Thompson and Lucia were excluded as possible contributors, and the results for Lewis were inconclusive. The probability of a randomly selected individual having contributed DNA to this mixture is one in 686 of the Caucasian population, one in 757 of the African–American population, and one in 1,200 of the Hispanic population.⁷

Meanwhile, on December 12, Sherrod decided to inform the Federal Bureau of Investigation's Gang Task Force about the information he had learned from the defendant in their telephone conversations the previous evening. Unbeknownst to the defendant, Sherrod at the time of those telephone calls had been working as a Federal informant and cooperating witness after executing a plea and cooperation agreement in May, 2006, with the United States attorney's office for the District of Massachusetts. Under that agreement, Sherrod agreed to plead guilty to an indictment charging him with possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (2006). The agreement stated that conviction under that statute carried a minimum mandatory term of ten years in prison, followed by a minimum of eight years of supervised release, and a maximum term of life in prison. He also agreed to cooperate fully with law enforcement agents and government attorneys to “provide complete and truthful information to all law enforcement personnel,” and, if his testimony were requested, to testify “truthfully and completely.” ⁸

After informing the authorities about the telephone calls, Sherrod received another telephone call from the defendant on the evening of December 13, in which the defendant asked for help in obtaining “a couple of guns.” Sherrod then made three telephone calls to the defendant, which were recorded. In one, he asked the defendant if he still had the gun he had used when he “merced” someone. When the defendant said he...