Commonwealth v. Fisher

492 Mass. 823

216 N.E.3d 1218

COMMONWEALTH

v.Derrell FISHER.

SJC-13340

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 5, 2023

Decided September 20, 2023

Chauncey Wood, Boston (Caroline Alpert & Danya Fullerton also present) for the defendant.

Christa Elliott, Assistant District Attorney, for the Commonwealth.

Caitlin Glass & Joshua M. Daniels, for Boston University Center for Antiracist Research & others, amici curiae, submitted a brief.

Anton Robinson, Daniel B. Goldman, & Steven Rivera, of New York, & Radha Natarajan, for New England Innocence Project & another, amici curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Cypher, Kafker, & Georges, JJ.

CYPHER, J.

From the night of July 1, 2015, to the early hours of the morning on July 2, Derrell Fisher, the defendant, and Epshod Jeune, his codefendant,¹ engaged in a scheme to rob women they found advertising sexual services on a website (Backpage). After one successful robbery of a victim at a Woburn hotel, the defendant and Jeune traveled to a second hotel in Burlington (Burlington hotel), where a second victim was shot after she began to scream for help. The defendant was convicted of murder in the first degree based on a theory of felony-murder, among other charges.

On appeal, the defendant argues that his motion to suppress was denied erroneously; the judge erred in dismissing two jurors from the venire; a police officer improperly identified the defendant in a video recording at trial, which was exacerbated by the prosecutor's statements and the judge's instructions; the evidence was insufficient for his murder conviction; the judge's instructions to the jury in response to a question regarding third prong malice was incorrect; and the prosecutor's closing argument misstated the evidence. For these claimed errors, the defendant requests that the court reduce his verdict pursuant to G. L. c. 278, § 33E, or order a retrial. We hold that the officer's identification testimony was admitted improperly, but that its admission did not prejudice the defendant. Concluding that there was no other error, we affirm the defendant's convictions.²

1. Background. a. Facts. i. The crimes. Because the defendant disputes the sufficiency of the evidence for his conviction of murder in the first degree, we recite the facts in detail, in the light most favorable to the Commonwealth. Commonwealth v. Oberle, 476 Mass. 539, 540, 69 N.E.3d 993 (2017).

A. Sanisha Johnson. On the evening of July 1, 2015, Sanisha Johnson was in her Burlington hotel room. That night, Johnson had posted a listing on Backpage for sexual services, which included her cell phone number.

Sometime after midnight on July 2, a couple staying in room 116 heard knocking at their door, to which they did not respond. Soon after, from a nearby room they heard a woman call out, "Help me. Help me," and a loud bang, followed by silence. Other guests also heard cries for help and a loud bang at around half past midnight, two of whom identified the sound as a gunshot.

A hotel employee, Cherin Townsend, heard a loud bang from inside the building on July 2, 2015, between 12:20 and 12:30 A.M. , and received a telephone call informing her that somebody heard gunshots. After several telephone calls from guests, Townsend walked to the front desk and called police.

Sergeant Daniel Hanafin of the Burlington police department, the officer in charge on July 2, 2015, at 12:30 A.M. , responded to a telephone call from the hotel, along with several other officers. On entering the hotel, officers spoke to individuals gathered in the lobby and to Townsend. After looking through the hallway at issue, officers began calling each occupied room in the corridor and asking occupants to come out into the hallway. After knocking on the doors of rooms whose residents the officers were unable to connect with by telephone, the only room without a response was Johnson's room.

Hanafin and Sergeant Tim McDonough entered Johnson's room to conduct a well-being check. Immediately, they noticed blood droplets on the floor just inside the doorway. Johnson was lying in an odd position on the floor, partially face down and on her side, with blood around her. Hanafin noticed a gunshot wound on her side. Blood smears were located by the telephone on the nightstand and on the bedspread. The telephone cord was stretched out under Johnson's body. Officers suspected that Johnson was deceased, which was confirmed by emergency medical responders.

After they found Johnson, Detective James Tigges arrived at the hotel at around 4 or 5 A.M. and secured the exit and entrance at the wing of the building closest to the street. Tigges retrieved a wallet found by a guest at the front desk, which contained a tissue and a receipt from a store in Florida. Tigges also searched Backpage and located Johnson's advertisement. When he called the number listed, Johnson's cell phone in the hotel room began to ring. Upon examining Johnson's cell phone records, officers observed a cell phone number ending in 9575 was used to contact Johnson at around the time of the 911 call (9575 number).

B. Emily.³ From July 1 to July 2, 2015, Emily was staying at a hotel in Woburn (Woburn hotel). At that time, Emily was working as an escort and advertising for her services on Backpage. On July 1, before the shooting of Johnson, she was contacted by someone using the 9575 number to ask about her availability that evening; she made an appointment to meet with the caller.⁴ She received a text message at 11:52 P.M. from the 9575 number asking for her room number, which she provided.

Emily heard a knock on her door and looked through the peephole in her door to see a young Black man with his hair in shoulder-length braids and wearing a baseball cap. As soon as she opened the door to let him in, a second man barged into her room along with the first man, pushing Emily into the closet area behind the door and grabbing her face. The second man also was Black, had medium-toned skin and big brown eyes, and appeared to be very angry.⁵ At the same time that the second man grabbed her, he put a gun to her forehead. She believed that the gun they used was black and not a revolver, and that both the men were about her height, five feet, four inches tall. She did not remember seeing tattoos or facial hair on either man.⁶

The second man said to Emily, "If you scream, believe me, I can scream louder. Where da money at? I'm not playin’. Where da money at?" The first man, who had braids, was standing beside the second man at his left. Emily told them that she would give them her money, and the second man kept the gun to her side as she went to her dresser. When she opened a drawer to remove her purse, she remembered that she had hidden her cash under the table between the two beds. The gun remained pointed at her as she walked toward the table. The first man was with them between the two beds.

When she went to reach under the table to get the money, the second man with the gun moved her away from the area and forced her to the front of the bed and to the floor; he directed the first man to look for the money while the second man kept the gun on Emily. The first man grabbed the money, in the sum of $700.

They brought her purse over to the bed and looked through it. In her wallet, she had medical, identification, and Social Security cards belonging to her and her children, and receipts from her neighborhood stores in Florida. In her purse she had two money orders. When the first man found the money orders, he asked the second man whether they should take them, and the second man responded, "No. Leave those." As the gun was trained to her head and she was on the floor, the first man, at the direction of the second man, ransacked her room, flipping over the mattresses, looking in the bathroom, and trying to get into the adjoining room through a locked door. They took Emily's marijuana from one of her dresser drawers. One man asked her, "Where da work at?," which she took to be a request for cocaine. She told them that she did not have any. As they were leaving, the second man with the gun told her he would "holler at" her. The men exited to the right, which led her to believe they were going out the back entrance to avoid the lobby.

Although she called the front desk immediately after this incident, when the clerk answered Emily hung up because she needed to continue working. For that same reason, she did not report the incident to police right away. Later, while still in Woburn, she heard about Johnson's murder.

When she tried to extend her stay, the manager confronted her with her Backpage advertisement and told her that she had to leave. She traveled to Maine and had a flight scheduled to return to her Florida home on July 4, 2015. On the evening of July 3, she called the Burlington police department and reported what had happened to her at the Woburn hotel.

C. Sarah.⁷ From July 1 through July 2, 2015, Sarah was staying at a hotel in Saugus (Saugus hotel). On July 1, Sarah had an advertisement on Backpage, to which she received a response. At 10:55 P.M. , there was a call from the 9575 number to Sarah's cell phone. There were two more calls placed from the 9575 number to Sarah's cell phone at 11:24 and 11:30 P.M. After she told the caller her room number, she went to the door to admit him. When he knocked on the door and she looked through the peephole, she said, "I'm sorry, but I don't do Black guys." The man at the door responded, "I'm not Black, I'm Spanish." Sarah testified that the man had braids and wore a hat and baggy clothing. She did not let him in because he "just didn't look right to" her.

ii. The investigation. In Johnson's room, police did not find a shell casing. They did find her wallet, which contained $1,875.

On July 2, 2015, State police Trooper Sean O'Brien returned to the Burlington hotel to retrieve its video surveillance. Because the video system was unable to play back the footage at that...