Commonwealth v. Herndon

475 Mass. 324

56 N.E.3d 814

COMMONWEALTH

v.Frankie HERNDON.

SJC–11702.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 11, 2016.

Decided Aug. 26, 2016.

Theodore F. Riordan (Deborah Bates with him), Quincy, for the defendant.

Teresa K. Anderson, Assistant District Attorney (Joseph F. Jimezic, Assistant District Attorney, with her) for the Commonwealth.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, & HINES, JJ.¹

BOTSFORD, J.

A Superior Court jury found the defendant, Frankie Herndon, guilty of murder in the first degree of Derrick Barnes on the theory of deliberate premeditation and of possession of a firearm without a license. On appeal, the defendant challenges (1) the failure of the judge to instruct the jury on eyewitness identification in accordance with the defendant's requested instruction that was created after State v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011), and that presaged this court's provisional eyewitness identification instructions set forth in Commonwealth v. Gomes, 470 Mass. 352, 22 N.E.3d 897 (2015) ; (2) the admission in evidence, through the testimony of two police officers, of an alleged out-of-court identification of the defendant and his codefendant, Frederick Henderson, by a witness although that witness did not testify concerning that alleged identification; and (3) the naming of the defendant's sister as a witness, which resulted in her sequestration from the court room. We affirm the defendant's convictions.

Background. From the evidence presented, the jury could have found the following facts. At some point before moving with their family to a town outside Boston, the victim and his brother Darryl Barnes (Darryl) had lived on Fayston Street in the Dorchester section of Boston. On August 27, 2011, Darryl and the victim returned there to visit people they knew from childhood and who were participating in a festival in Boston. Between approximately 5 and 5:30 p.m. , Darryl parked his automobile on the street. The victim and Darryl left the vehicle and walked along the street, where they met their cousin Rondale Williams. The victim, Darryl, and Williams continued to walk and stopped in front of one house on the street. After a few minutes, Darryl left to drive another cousin home. Shantee Griffin, who stayed with her mother next door, approached where the victim and Williams were talking, and the victim introduced himself to Griffin.

At some point, the victim and Williams moved to the area of a front porch directly across the street.² Williams was on the porch while the victim was standing on the stairs leading up to the porch with another man and a woman. At 7:05 p.m. , the defendant and Henderson walked along the street and stopped at the porch steps. Words were exchanged among the defendant, Henderson, and the victim for less than a minute, but long enough for the victim to say, “I'm saying, mother, you want to holler at me, holler at me then” and for the defendant to say, “[N]ow, what's up with that rattin' shit?” After this exchange, the defendant and Henderson each drew a gun and fired multiple shots at the victim,³ and the victim fell. The defendant turned and began to walk away but then turned back to the stairs of the porch, and as the victim put his arm up, the defendant shot the victim again. The defendant then put away the gun he was holding and “walked off like normal.”

Williams ran from the porch to a nearby house and telephoned 911. Griffin, who was on the sidewalk in front of another nearby house during the shooting, also telephoned 911. She handed the telephone to a resident of Fayston Street, proceeded to where the victim was lying, and applied pressure on his chest in an attempt to stop the bleeding. Darryl returned minutes after his brother had been shot and ran to where the victim was lying. Minutes later, Boston police and emergency medical services responded to the scene. The victim, who was alert but unable to respond, was transported to a hospital, where he was pronounced dead not long after his arrival. He had received five gunshot wounds, including fatal wounds to the head and in the area of his right lower leg. Ballistic examination of shell casings found at the scene revealed that two different guns were used in the shooting.

The Commonwealth's theory of the case was that the defendant and Henderson shot the victim because in 2009 the victim had testified, revealing information contrary to the defendant's “no snitching code.” According to the defendant, “bad things” happen to snitches and they could get shot. Although the defendant and the victim grew up together and were together almost every day until 2009, after 2009 they “stopped hanging out.”

The evidence pointing to the defendant and Henderson as the two men who shot and killed the victim primarily consisted of identifications allegedly made by Griffin and Williams. The Commonwealth called both Griffin and Williams to testify at trial, but neither of them identified the defendant or Henderson as a shooter in their trial testimony. Rather, the evidence of identifications, in Griffin's case, consisted of the following: (1) testimony by Sergeant Detective James J. Wyse that he spoke with Griffin by telephone on the night of the shooting and she identified “Jigga” (the defendant) and “ Drano” (Henderson) as being the two men involved in the shooting and Jigga as the shooter;⁴ (2) evidence of Griffin's recorded statements to Wyse and Detective Jeramiah Benton a few days after the shooting where she identified the defendant and “Drano” as the two men who approached the porch steps and the defendant as the man who shot the victim several times;⁵ AND (3) GRIFFIN'S grand jury Testimony—about which she was questioned at trial and a redacted copy of which was introduced as an exhibit again identifying the defendant and Henderson as being at the scene of the shooting and the defendant as the shooter.^{6 ,7}

As for Williams, the evidence of his identifications consisted of testimony by the two Boston police detectives, Benton and Wyse, about statements Williams made during an unrecorded interview they conducted of him on September 2, 2012, in the apartment of Williams's mother. According to the detectives' testimony, Williams identified “Drano” as firing the first shot and “Jigga” as firing subsequent shots.

The defendant testified. He stated that on the day in question, he was at a festival where he met friends, including Thell Valentine. He then left with Valentine and went to Valentine's apartment around 5 p.m. They stayed at Valentine's apartment for a while and then drove around until about 11:30 p.m. Valentine's testimony corroborated this timeline and more specifically explained that he and the defendant were still at his apartment at the time of the shooting and left his apartment around 8 p.m.⁸

The defendant was sentenced to life in prison on the murder charge and a concurrent term of from four to five years in prison for unlawful possession of a firearm.⁹ The defendant filed a timely notice of appeal.

Discussion. a. Eyewitness identification instruction. The defendant requested an instruction on eyewitness identification that was essentially identical to the instruction that was developed after the New Jersey Supreme Court's decision in State v. Henderson, 208 N.J. at 298–299, 27 A.3d 872. See Gomes, 470 Mass. at 357 n. 10, 22 N.E.3d 897. The judge declined to give the defendant's requested instruction, stating that he would use the model instruction provided in Commonwealth v. Rodriguez, 378 Mass. 296, 310–311, 391 N.E.2d 889 (1979) (Appendix), S.C., 419 Mass. 1006, 645 N.E.2d 687 (1995).¹⁰ The defendant claims that the judge erred by giving the model instruction in Rodriguez, rather than the instruction he requested, especially in light of this court's recent adoption of the more inclusive instructions provisionally adopted in Commonwealth v. Gomes, 470 Mass. at 376, 22 N.E.3d 897.¹¹ See id. at 379–388, 22 N.E.3d 897 (Appendix). Because the defendant objected to the judge's eyewitness identification instruction, we review for prejudicial error. See Commonwealth v. Meas, 467 Mass. 434, 454, 5 N.E.3d 864, cert. denied, ––– U.S. ––––, 135 S.Ct. 150, 190 L.Ed.2d 110 (2014). We conclude that the judge did not abuse his discretion in denying the defendant's proposed instruction and therefore that there was no prejudicial error. See Gomes, supra at 359, 22 N.E.3d 897.

Similar to the instruction adopted in Gomes, the defendant's requested instruction contained various principles regarding the reliability of eyewitness identification and human memory that were not included in the Rodriguez instruction: (1) human memory is not like a video recording; (2) a witness's level of confidence may not be an indication of the reliability of the identification; (3) the accuracy of the identification may be affected by a witness's stress at the time of the crime, the presence of a weapon distracting the witness's focus, and any influence of alcohol or drugs; and (4) information provided to a witness by other witnesses or outside sources may affect the reliability of the witness's identification. Each of the factors raised by the defendant's alternative instruction is supported by the scientific principles regarding eyewitness identification summarized in the Report and Recommendations of the Superior Judicial Court Study Group on Eyewitness Evidence (report);¹² the report served as the impetus for the provisional instructions in Gomes and the Model Jury Instructions on Eyewitness Identification, 473 Mass. 1051 (2015). As we recently noted in Commonwealth v. Navarro, 474 Mass. 247, 49 N.E.3d 665 (2016), however, the report itself does not represent a binding statement of governing law, and neither the provisional nor the new model eyewitness identification instructions were in existence at the time of the defendant's trial. See id. at 253, 49 N.E.3d 665. Thus, despite the alignment of the defendant's proposed...