Commonwealth v. Jackson

486 Mass. 763

162 N.E.3d 48

COMMONWEALTH

v.Garret JACKSON.

SJC-11341

Supreme Judicial Court of Massachusetts, Suffolk..

Argued September 14, 2020.

Decided February 4, 2021.

Leslie W. O'Brien, Boston, for the defendant.

Houston Armstrong, Assistant District Attorney, for the Commonwealth.

Present: Lenk, Gaziano, Cypher, Kafker, JJ.¹

KAFKER, J.

A jury convicted the defendant, Garrett Jackson, of murder in the first degree with deliberate premeditation in connection with the shooting death of Tommy Speed on February 11, 2009.² The cause of death was a gunshot wound inflicted to the back of his skull at close range, and the identity of the shooter was the central issue at trial. In this direct appeal from his convictions, the defendant asserts reversible error on the part of the trial judge in (1) allowing the Commonwealth's peremptory challenges of two prospective jurors over the defendant's objections pursuant to Batson v. Kentucky, 476 U.S. 79, 95, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Commonwealth v. Soares, 377 Mass. 461, 486, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979) ; (2) admitting a graphic autopsy photograph; (3) allowing rebuttal testimony about overheard telephone statements of a Commonwealth witness imparting that she altered her testimony upon receipt of death threats; and (4) denying the defendant's request to conduct consequent voir dire of that witness, to determine whether to recall her. For the reasons stated infra, we neither discern reversible error nor detect any other basis to exercise our G. L. c. 278, § 33E, authority to reduce or set aside the verdict of murder in the first degree. We affirm all his convictions.

Background. The jury could have found the following facts based upon the evidence at trial, with certain details reserved for subsequent discussion of the legal issues.

1. "Crack" cocaine sales in the Lenox housing development. At the time of his death, the victim was thirty-eight years old, and had been selling "crack" cocaine in the area around the Lenox public housing development (Lenox) in the South End section of Boston for many years. He ran a solo operation and had acquired master keys that opened several of the Lenox buildings, facilitating his access to resident clientele. The victim was the preferred local source for area addicts, both because of the dependable quality of his product and because he was personally well liked. When he was present in and around Lenox with crack cocaine, however, the victim expected customers would come to him for all of their needs before turning elsewhere, and he insisted other crack dealers relinquish all area sales to him.

The defendant, known as "G-Wiz," also sold crack cocaine in the Lenox area, operating with two associates called "Blaze" and "Nasty." The three young³ men were together "all the time," typically loitering in the area outside a pizzeria and adjoining shops along the southeastern side of Lenox, ⁴ a public space the victim was also known to frequent and where a core group of at least twenty individuals from the area "hung out" and people came looking to buy crack cocaine.

G-Wiz, Blaze, and Nasty habitually operated out of certain Lenox apartments where they converged to "bag up" their product for sale while using building hallways to meet customers and transact business. At different times, the young men arranged to use the respective apartments of Renee Ruspus, known as "Kookie," and Gina Huffman⁵ in this manner. In exchange for use of their respective apartments and consistent building access, G-Wiz and associates supplied Huffman and Kookie with crack cocaine. In late October 2008, the last time that Huffman recalled G-Wiz, Blaze, and Nasty coming to use her apartment, she told the defendant that the crack cocaine he gave her was "bunk," meaning it was heavily cut with baking soda and contained very little stimulant, and that the victim sold better quality crack cocaine. The defendant reacted in anger, complaining to his associates that the victim had "screwed [them] over" by "selling [them] crap and keeping the good stuff for himself."

Throughout the remainder of 2008, and in early 2009, the victim continued to monopolize crack cocaine sales in the Lenox area. During a conversation with the younger men outside the pizzeria, he told them, "Y'all wait until I get my money and then y'all can have the rest." Another time, the defendant was heard complaining to the others that "when [the victim] was out there they couldn't eat," meaning no one else could make any money on which to live.

In the weeks before the shooting, the victim and other crack cocaine dealers, including G-Wiz and Blaze, were all outside the pizzeria when a man approached them looking to buy crack cocaine. The victim quickly claimed the customer for himself, leaving the others to grumble about the "effed up" situation and how "somebody has got to be out of here." Inside the pizzeria, the defendant and others continued complaining that it was "time for somebody to take a walk ... so somebody else can get some money."

2. The shooting. At around 7:30 P.M. on the evening of February 11, Judy Brown, another client of the victim, went to Lenox to buy some crack cocaine from him, which they had discussed by telephone about one-half hour earlier. Kookie also testified that she had been looking to buy crack cocaine from the victim at about that same time; she found him just inside the front door of the building behind the one where Huffman's apartment was, arguing with the defendant. She saw Brown inside, waiting. Brown also had seen the defendant and the victim as she approached the front of the building. Both were standing on the raised entry platform just outside the front door, the victim in the doorway, holding the door partway open to his right while facing out, and the defendant about one or two feet to the victim's left, leaning against the outside wall and directly in front of Brown as she climbed the steps to reach the platform. Brown asked the defendant if he was waiting to see the victim. When he shook his head "no," she asked the victim to speak privately. The victim invited her inside, pushing the door open wider while standing with his body up against it to let her pass.⁶ No more than two seconds after Brown passed through the door and into the hallway, the blast of a single gunshot deafened her. Moments later, the defendant ran out the building's back door and into a waiting black truck, which sped off.

3. The police investigation. At about 8:11 P.M. , Boston police dispatch reported that a person had been shot inside one of the Lenox buildings. Upon arrival at the dispatched address minutes later, police found the front door to the building closed but unlocked. When they pulled open the door, the victim was already dead, lying face down in a pool of blood on the floor. His feet were just inside the door, and his body extended diagonally to the left across the entryway and into the first-floor hallway, his right shoulder near the bottom left corner of an internal stairway that faced the front door and led straight up to the second floor. On the second step of that stairway, crime scene investigators located a spent nine millimeter shell casing.

The victim, who was about six feet, two inches tall, had suffered no injuries apart from the fatal gunshot wound. The bullet had entered the back of his skull, leaving a rim of soot around the entrance wound, indicating that the shooter had held the gun no more than two feet away when fired; the bullet had torn through several critical areas of the brain⁷ on its trajectory through the victim's skull. Police found a spent nine millimeter projectile, bent on one side, lying on the floor at the opposite end of the hallway, near the building's back exit. The projectile was on the floor below a small dent in the wall tile in the upper corner of the hallway (about two feet below the ceiling, on the wall immediately to the left of the back doorway). The murder weapon was never found.

On May 27, three months after the shooting, Patricia Ross walked past a police cruiser parked in the area, and casually threw a crumpled up lottery ticket with her telephone number written on it through the window as she passed; officers promptly telephoned the number they found scrawled on the back of the ticket and arranged to interview Ross. Ross had known the victim for twenty-five years and considered him a good friend. She told police about a conversation that took place about three weeks earlier, at a friend's apartment on the second floor of the Lenox building where the victim was shot -- right at the top of the stairs inside the building's front door. When she arrived, several people were inside, including G-Wiz and Blaze, who were sitting at a table with others, bagging up crack cocaine to sell. There was a gun on the table.

Ross commented that whoever had shot the victim was "effed up." The defendant had a smile on his face and said "what you thought." She was crying, and again he said, "Tricia, what you thought." Ross told police that the defendant had also stated that the victim was making too much money, and that the victim took a shot to the back of the head. The defendant and another man sitting at the table had looked at each other and smiled.

Discussion. 1. Peremptory challenges. A challenge to the peremptory strike of a potential juror is subject to a three-step burden-shifting analysis. See Batson, 476 U.S. at 94-95, 106 S.Ct. 1712 ; Soares, 377 Mass. at 489-491, 387 N.E.2d 499. First, to rebut the presumption that the strike was proper, the challenger "must make out a prima facie case" that it was impermissibly based on race or other protected status "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose."⁸ Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005), quoting Batson, supra at 93-94, 106 S.Ct....