Commonwealth v. Celester

473 Mass. 553

45 N.E.3d 539

COMMONWEALTH

v.Jermaine CELESTER.

SJC–07874

Supreme Judicial Court of Massachusetts, Plymouth.

Submitted Oct. 9, 2015.

Decided Feb. 10, 2016.

Chauncey B. Wood, Boston, for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

Kirsten V. Mayer, Maria M. Carboni, David J. Derusha, Mark S. Gaioni, Boston, & David Lewis, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

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

Opinion

BOTSFORD, J.

In September, 1995, a Plymouth County jury convicted the defendant, Jermaine Celester, of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty and of armed assault with intent to murder. The victims, Wakime Woods and Derek Gibbs, were shot while walking with the defendant on the night of February 18, 1994. Woods died as a result of his injuries; Gibbs lived, but was rendered a quadriplegic. On appeal, the defendant challenges the admission in evidence of the decedent's out-of-court statement about who had shot him; the admission of the defendant's statement to police; the prosecutor's conduct, and in particular her closing argument; and the closure of the court room during jury empanelment. For the reasons discussed in this opinion, we affirm the defendant's convictions, but vacate the order denying his first motion for a new trial and remand the case to the Superior Court for an evidentiary hearing on that motion.

Background. From the evidence presented at trial, the jury could have found the following facts.¹ On the evening of February 18, 1994, Wakime Woods and Derek Gibbs were shot near the corner of Green and Newbury Streets in Brockton. The Commonwealth's

theory of the case was that the defendant shot both victims because he was seeking revenge for the murder, approximately four months earlier, of his good friend Robert Moses, and believed that Gibbs was refusing to reveal the identity of the person who had murdered Moses.²

On the day Gibbs and Woods were shot, Gibbs, Woods, and their friend Demetrious Lynch had been at the Boys & Girls Club in Brockton until 6 p.m. Afterward, they went to a house across the street from the club, where they smoked marijuana and then started walking to Gibbs's house. As the three were walking, two young women drove up in an automobile, and Gibbs and Woods spoke to them. Another vehicle with young women soon arrived, and one of its occupants began to argue with one of the young women in the first vehicle. Both automobiles then left. When Gibbs, Woods, and Lynch reached Gibbs's house, Lynch continued on to his own house to change his clothes. Gibbs and Woods went into Gibbs's house. Thereafter, Gibbs and Woods went outside a few times to see if Lynch and another friend had arrived. Gibbs at one point was standing alone on the sidewalk in front of his house, and the defendant approached from the side of Gibbs's house through a small alleyway between a store and the house; the defendant “kind of surprised [Gibbs].” The defendant was wearing a black jacket and dark clothes. He mentioned that he wanted to go see another friend, Larry Brown (see note 2, supra ), and Gibbs agreed. Woods at that point walked out of Gibbs's

house. The defendant did not know Woods; the two had never met. Gibbs introduced them: “This is Bear,^[ [[^{3 ]} ... this is Wakime.”

The three started off toward Brown's house, walking along Green Street. As they were walking, Gibbs's father pulled up in a van and told them to get out of the street, and the defendant “slipped off to the side,” away from the van. After Gibbs's father drove off, the three resumed walking, with Gibbs in the middle, Woods on the left, and the defendant on the right side of Gibbs. Suddenly the defendant was no longer in Gibbs's view; “it seemed like [the defendant] just stopped short.” Immediately thereafter, Gibbs heard a “pop”—a gunshot—and he fell to the ground; he had been shot.⁴

Marlene Scott, who was at her mother's house on Newbury Street, heard gunshots in rapid succession and looked out the window to see a man in dark clothing and a hood running down Green Street toward Newbury Street. Scott jumped back from the window and then went outside. She recognized Gibbs, who was lying in the street, and began to scream. She did not immediately notice anyone else, but then heard a voice from behind a snowbank calling for help; it was Woods. Scott ran over to Woods and asked, “Who shot you? Who shot you?” to which Woods replied, “The kid I was with.” Scott followed up, “Do you know him?” and Woods replied, “No.”

Sergeant Kenneth LaGrice of the Brockton police department arrived on the scene very soon after the shooting. He first went over to Gibbs, who was lying unconscious in the center of Green Street; he observed a large pool of blood around Gibbs's head and several shell casings in the area of Gibbs's body. Soon after he arrived, LaGrice called for ambulances and medical assistance, and then heard Woods calling for help. He found Woods lying at the base of a snow bank with a tall, thin, African–American woman nearby—Marlene Scott, whom he knew. LaGrice asked Woods who had shot him, and Woods initially responded that he did not know, but when asked again, said, “I don't know his name.” Woods was “very excited, very scared,” and kept repeating that he had been shot and needed help.

Woods was taken by ambulance to the emergency department of Cardinal Cushing Hospital. He was awake and following commands

when he arrived, but also was in respiratory distress, having suffered multiple gunshot wounds, including one that had pierced his lung. He was able to speak in short, coherent sentences for a brief period of time, but was deteriorating quickly. Dr. David Mudd, who first treated Woods, asked Woods what had happened to him. Dr. Mudd remembered Woods saying something to the effect of “he had been smoking with some friends and somebody came up to him and shot him.” Woods did not say who had shot him. Because the hospital was not able to treat Woods's injuries fully, he was taken by helicopter to Brigham and Women's Hospital, where he died the next morning.

Gibbs, meanwhile, was taken to Brockton Hospital and then transported to Boston City Hospital. He had suffered a bullet wound to the neck. The bullet entered the right side of Gibbs's jaw and exited through the back left side of his neck, tracking from front to back in a slightly downward direction; it fractured Gibbs's second and third vertebrae and severed his spinal cord at that location, instantly paralyzing him from the neck down.

In the early morning hours of February 20, 1994, while Gibbs was still in the hospital, Brockton police Detective Clifford Hunt showed Gibbs a photographic array. Gibbs identified the defendant,⁵ and an arrest warrant for murder (murder warrant) for the defendant was issued. The defendant learned that the police were looking for him, and at approximately 10 a.m. on February 20, the defendant went to the Brockton police station, accompanied by an attorney, James Gilden. With Gilden present, the defendant was given Miranda warnings, signed a form acknowledging that he understood his rights, agreed to speak to the police, and gave a statement, predominantly in narrative form, in which he described meeting Gibbs and Woods (whom he said he did not previously know) on February 18 outside Gibbs's house, walking with Gibbs and Woods toward Brown's house, and encountering young women who arrived in two different automobiles. As the defendant, Gibbs, and Woods approached Newbury Street, the defendant noticed an old Cougar automobile pulled over at the corner of Newbury and Green Streets, and saw the passenger in the vehicle, an African–American man who looked like a “body builder,” get out, after which Gibbs said, “I feel like something is

going to happen tonight.” The defendant then heard a gunshot and saw Gibbs fall. The defendant did not see anyone in front of them, but thought he saw an automobile up on the hill in the distance with its lights on. He started running through back yards to get to his house; while running, he heard two more shots and an automobile take off. The defendant did not call police and did not go outside when he heard police arrive because he did not want to be a witness.

State Trooper Michael Robert Arnold investigated the scene of the shooting and found four spent cartridge casings clustered together and one spent projectile. Another spent projectile was recovered from Woods's body. Arnold opined that the four cartridge casings were fired from the same weapon and that the two projectiles were fired from the same weapon. He further opined that the locations of the casings and projectile at the scene and the results of ballistics testing were consistent with one gun being used, although he could not scientifically connect the projectiles and the casings to one gun. Arnold found no damage to the projectiles that would suggest that they had ricocheted off any solid objects before striking the two victims. The casings, which were from a nine millimeter weapon, would travel only a distance of fifteen feet or usually less when fired, meaning that the shooter was in close proximity to where the casings were found. Testing on the victims' clothes revealed no gunshot residue, suggesting that the muzzle of the weapon used was further than three feet from the victims at the time it was fired.

Woods had suffered three, possibly four gunshot wounds, three of which were entrance wounds into his back and one of which was an entrance wound into his left thigh. The entrance wound on Woods's thigh was atypical in appearance. The entrance point was irregularly round with irregular scraping around it, which could have been caused by the bullet passing through another object or ricocheting off something before hitting the thigh. In the opinion of Dr. James Weiner, the...