Commonwealth v. Jacobs

174 N.E.3d 1200

COMMONWEALTH

v.Robert O. JACOBS.

SJC-10590

Supreme Judicial Court of Massachusetts, Plymouth.

Argued April 9, 2021.

Decided October 19, 2021.

Janet Hetherwick Pumphrey, Boston, for the defendant.

Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.

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

GEORGES, J.

In February of 2006, fifteen year old Jerard Rogers was shot to death after a party in Brockton. The defendant, then eighteen year old Robert O. Jacobs, was indicted on charges of murder in the first degree and unlawful possession of a firearm in connection with the victim's death. At trial in September of 2008, the Commonwealth proceeded on theories of deliberate premeditation and extreme atrocity or cruelty. The defendant was convicted by a Superior Court jury of both charges and based on both theories of murder. After the defendant's motion to reduce the verdict of murder in the first degree was denied, he entered his appeal in this court.

His motion for a stay of appeal was allowed so that he could pursue a motion for a new trial in the Superior Court. In this subsequent motion, the defendant argued that trial counsel provided ineffective assistance because counsel did not call three alibi witnesses and did not introduce testimony by a crime scene reconstruction expert. A Superior Court judge, who was not the trial judge, conducted an evidentiary hearing and denied the motion.

We consolidated the defendant's appeal from the denial of his motion for a new trial with his direct appeal, in which he argues that a new trial is required because the trial judge should have declared a mistrial due to juror misconduct. We discern no error in the trial judge's decision to deny the motion for a mistrial, nor any reason to grant relief under G. L. c. 278, § 33E. Accordingly, we affirm the defendant's convictions and the order denying his motion for a new trial.

Background. We summarize the evidence in the light most favorable to the Commonwealth, reserving certain details for later discussion. See Commonwealth v. Chalue, 486 Mass. 847, 849, 162 N.E.3d 1205 (2021).

On the evening of February 18, 2006, the defendant and the victim attended a party hosted by a high school classmate of the victim. The defendant was driven to the party by his close friend, Reaksmy Ke. Ke's sister, Soryear Ke, and Soryear's coworker, Carmen Velazquez, who was the victim's girlfriend, were passengers in the vehicle.¹ During the drive, Velazquez saw the defendant pull "a little silver gun" from his waistband and play with it for a few seconds. The victim arrived at the party separately, later that evening.

A degree of animosity had existed between the victim and the defendant prior to the party. The origin of the dispute appeared to be an incident in which the defendant had spat on the victim from an upper floor of a District Court court house, leading to a brief verbal altercation. The animosity continued during the party. At one point, the defendant and a friend of the victim engaged in a confrontation in which the defendant warned, "You and your friends are going to get it after the party, get away from me," while lifting his shirt to display a firearm. The party ended around midnight, and the remaining partygoers congregated in front of the house, where a fight ensued.² Gunshots rang out, either immediately before the fight ended or shortly thereafter, and the partygoers fled in multiple directions. Three of the partygoers -- Shaquan Berry, Aaron Tobey, and Brian Jean-Pierre -- testified to having seen the defendant wearing a "gray hoodie" and shooting into the air during the first round of shots.³ Tobey also testified that the defendant was standing "in the middle of" a nearby hill at that point.

In the aftermath of the gunshots, Velazquez encountered the victim and Soryear together at the top of the hill. Soryear spoke with them briefly before she began walking toward the bottom of the hill, leaving Velazquez and the victim together behind her. At that point, another round of gunshots was fired, four of which struck the victim. The victim knocked Velazquez to the ground before ultimately succumbing to his injuries at the scene. Five shell casings were found near the scene, with another two located together about one hundred yards away from the victim, in a parking area. Soryear told police that, during the second round of shots and as she turned and began walking down the hill, she saw the defendant standing on the hill, shooting the victim from "within five or six feet" away.⁴ Soryear said that the defendant's sweatshirt hood was "off," such that she had a "full view" of his face. She later identified the defendant as the shooter in a photographic array.

Discussion. On appeal, the defendant principally focuses on the asserted errors by the motion judge in the denial of the motion for a new trial; we address those arguments first and then turn to the defendant's claim of juror misconduct that he asserted in his direct appeal.

1. Motion for a new trial. a. Standard of review. " ‘[A] motion for a new trial is addressed to the sound discretion of the trial judge,’ who may grant a new trial ‘if it appears that justice may not have been done’ " (citations omitted). Commonwealth v. Kolenovic, 471 Mass. 664, 672, 32 N.E.3d 302 (2015), S.C., 478 Mass. 189, 84 N.E.3d 781 (2017). We review a decision on a motion for a new trial for an abuse of discretion, meaning we consider whether the motion judge's decision resulted from "a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27, 20 N.E.3d 930 (2014). Where a judge conducts an evidentiary hearing, we "accept the [judge's] findings where they are supported by substantial evidence in the record." Commonwealth v. Velez, 487 Mass. 533, 540, 168 N.E.3d 800 (2021). "When, as here, the motion judge did not preside at trial, we defer to that judge's assessment of the credibility of witnesses at the hearing on the new trial motion, but we regard ourselves in as good a position as the motion judge to assess the trial record." Commonwealth v. Perkins, 450 Mass. 834, 845, 883 N.E.2d 230 (2008), quoting Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986).

The defendant maintains that his trial counsel was constitutionally ineffective in several respects, which we discuss infra. In reviewing a claim of ineffective assistance of counsel in a case of murder in the first degree, we apply the substantial likelihood of a miscarriage of justice standard, Velez, 487 Mass. at 539, 168 N.E.3d 800, and "consider whether there was an error in the course of the trial (by defense counsel, the prosecutor, or the judge) and, if there was, whether that error was likely to have influenced the jury's conclusion," Commonwealth v. Wright, 411 Mass. 678, 682, 584 N.E.2d 621 (1992), S.C., 469 Mass. 447, 14 N.E.3d 294 (2014). Where the asserted error is based on a tactical or strategic decision by trial counsel, we consider whether counsel's decision was manifestly unreasonable when made.⁵ Velez, supra at 540, 168 N.E.3d 800. See Commonwealth v. White, 409 Mass. 266, 272, 565 N.E.2d 1185 (1991) ("In cases where tactical or strategic decisions of the defendant's counsel are at issue, we conduct our review with some deference to avoid characterizing as unreasonable a defense that was merely unsuccessful").

The manifestly unreasonable test is made up of two considerations. Velez, 487 Mass. at 540, 168 N.E.3d 800. First, "we evaluate the [strategic or tactical] decision at the time it was made, and make every effort ... to eliminate the distorting effects of hindsight." Id., quoting Commonwealth v. Holland, 476 Mass. 801, 812, 73 N.E.3d 276 (2017). Second, substantively, "[o]nly strategy and tactics which lawyers of ordinary training and skill in criminal law would not consider competent" are manifestly unreasonable. Velez, supra, quoting Holland, supra.

b. Failure to call witnesses. The defendant argues that his trial counsel was constitutionally ineffective for failing to call putative alibi witnesses Reaksmy, Vanessa Franklin, and Christina Jacobs,⁶ who would have testified that they were with the defendant (either at the time of the gunshots or immediately thereafter) and had not seen him shoot a gun or with a gun in his possession. The defendant also argues that counsel provided ineffective assistance by failing to call a crime scene reconstruction expert to opine that, given the eyewitness testimony and the physical evidence, the shooting took place in an area where no witness testified to having seen the defendant.

i. Alibi witnesses. Reaksmy, Franklin, and Christina testified at the hearing on the motion for a new trial. Reaksmy said that when the first round of shots was fired, the defendant was standing next to him and was not holding anything in his hand. Reaksmy also said that, during that first round of shots, he saw flashes of light approximately fifteen to twenty feet away from where he was standing. He and the defendant then ran toward the street, but he did not see the specific direction in which the defendant went. Reaksmy was not with the defendant when the second round of shots was fired.

Franklin, the defendant's "god sister,"⁷ testified that she also attended the house party that night and that she was standing next to the defendant when the first round of shots was fired. She and the defendant then left the area and began walking up the hill toward a convenience store on an adjacent street. While they were walking, Franklin heard a second round of shots. The defendant's sister, Christina, picked them up about "two minutes" after they reached the store. Similarly, Christina testified that during the early morning hours of February 19, 2006, she received a telephone call from Franklin,...