Commonwealth v. Lessieur

175 N.E.3d 372

COMMONWEALTH

v.Shawn LESSIEUR.

SJC-13006

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 1, 2021.

Decided October 21, 2021.

Sharon Dehmand, for the defendant.

Hallie White Speight, Assistant District Attorney, for the Commonwealth.

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

GAZIANO, J.

In 2009, the defendant was convicted of murder in the first degree in the 1994 shooting death of Mark Jones.¹ The primary evidence at trial was the testimony of a coventurer, who told the jury that he drove the victim and the defendant to an apartment complex in Lowell, using the defendant's vehicle, and parked there at the defendant's request; the defendant got out, purportedly looking for a place to urinate, and the victim followed. They went around the side of the building, and he then heard two shots. The convictions, and the denial of the defendant's first motion for a new trial, were affirmed on direct appeal. See Commonwealth v. Lessieur, 472 Mass. 317, 34 N.E.3d 321, cert. denied, 577 U.S. 963, 136 S.Ct. 418, 193 L.Ed.2d 328 (2015).

In 2018, the defendant's motion for postconviction forensic testing under G. L. c. 278A of blood found in the snow under the victim's head, was allowed, and the results of deoxyribonucleic acid (DNA) testing, of a type that had not been available at the time of trial, showed the presence of DNA that was neither the victim's nor the defendant's. At issue here is the defendant's second motion for a new trial. The motion stems from the new DNA results, as well as a new affidavit from a potential witness.

A Superior Court judge denied the defendant's motion for a new trial without a hearing, and a single justice of this court then granted the defendant's petition under the gatekeeper provisions of G. L. c. 278, § 33E, and allowed the defendant's appeal from the denial of his motion for a new trial to proceed before the full court. Having carefully reviewed the new DNA evidence, the statements by a witness who was not available at trial, and trial counsel's affidavit, we discern no error in the motion judge's decision to deny the motion for a new trial. The motion does not raise any error that suggests a miscarriage of justice at the original trial, or that otherwise indicates a need for a new trial. Accordingly, we affirm the Superior Court judge's order denying the defendant's motion for a new trial.

1. Evidence at trial. The facts surrounding the victim's death and the resulting investigation are set forth in detail in our decision on the defendant's direct appeal. See Lessieur, 472 Mass. at 318-323, 34 N.E.3d 321. We summarize those facts here and supplement them with other facts from the trial record relevant to the motion now before us. See Commonwealth v. Sullivan, 469 Mass. 340, 341, 14 N.E.3d 205 (2014).

In the early morning hours of March 18, 1994, the victim's body was discovered next to a building at the University Heights apartment complex in Lowell. The area was not readily accessible; indeed, after an initial report of shots fired, Lowell police responded to the scene and did not see any signs of someone who had been injured or a body. Several hours later, another individual, about whom little is apparent in the record, called 911 to report having found a body. The body was located in an open area near woods. The area was very dark, the ground was covered in snow, and it was difficult to see anything. When emergency medical technicians (EMTs) and advanced life support (ALS) specialists arrived, they saw that a male was lying in the snow, with his face covered in blood and an apparent injury to the cheek. When EMTs rolled the victim onto his side in their efforts to determine the source of the bleeding, they found a pool of blood in the snow under the victim's head. The victim was transported to a hospital, where he was pronounced dead.

During the subsequent police investigation of the scene, evidence from the blood in the snow was collected, in addition to a cigarette butt, two discharged cartridge casings, and two live cartridges. In the course of their initial investigation, police interviewed fifty to one hundred people but did not establish any concrete leads, and the case remained unsolved.

Mark Beaulieu, a resident of the University Heights complex at the time of the shooting, witnessed some of the events that took place at the scene. He was outside his apartment that night when he noticed a vehicle, parked near the Dumpster area for the complex, with its engine running. He heard two gunshots and then saw someone come out from the side of the building and get into the passenger seat of the vehicle. Beaulieu estimated that, based upon the roof line of the vehicle, the passenger was "no taller than six feet" and had short hair, but Beaulieu was not able to provide any further description of the driver or the passenger. After the vehicle left the apartment complex, Beaulieu and his wife got into their own vehicle and followed the departing vehicle, but they were unable to see the occupants clearly or to discern its license plate number. Beaulieu described the vehicle as "Toyota[-]ish ... Japanese make older boxy." Beaulieu and his wife eventually turned around and returned to their apartment to call police.

The officers who were dispatched in response to Beaulieu's call searched the area from which Beaulieu believed he had heard the gunshots but did not find anyone injured or a body; the area around the Dumpster was very dark and covered in snow. Shortly after midnight, in response to a second emergency call, EMTs responded to the area and located the victim. He had been shot once in the left cheek and once on the side of his head. He was fully clothed, except that his penis was outside of his pants.

Twelve years later, in April of 2006, police interviewed Nolyn Surprenant regarding the shooting for the first time. Surprenant told police that he and the defendant met in 1989 when the defendant was placed in Surprenant's foster home; they had been close friends in the years surrounding the victim's death, and Surprenant sold drugs for the defendant. At the time of the victim's death, Surprenant had dropped out of high school and had moved out of his foster parents’ home into an apartment that the defendant shared with his girlfriend. Surprenant, who was generally perceived to be the defendant's bodyguard, often drove the defendant's vehicles.

Surprenant explained that both he and the defendant had known the victim, and that the defendant had told Surprenant about two weeks prior to the shooting that the victim was planning to rob the defendant. The defendant also told Surprenant that he wanted to kill the victim. On the evening of the shooting, the defendant called Surprenant and asked him to retrieve a gun from the defendant's bedroom. The defendant told Surprenant that he was with the victim at the Chelmsford Street Projects in Lowell. Surprenant located the gun and drove the defendant's blue Toyota Corolla to meet him.

When the two men reached each other at the Chelmsford Street apartment complex, the defendant explained to Surprenant that he had told the victim that the three were going to drive to meet the defendant's drug dealer, whom they were going to rob. The victim then arrived to meet them, and the three men got into the defendant's vehicle. Surprenant, following the defendant's directions, drove. A few minutes later, Surprenant stopped at a convenience store, where he gave the defendant the gun while the victim was not looking. All three then got back into the vehicle, and at the defendant's instruction, Surprenant drove to the University Heights complex. The defendant asked Surprenant to park next to the Dumpster and got out of the vehicle. The defendant said that he was going to "take a piss," and the victim responded that he would go with him. Surprenant remained alone in the vehicle; he turned off the lights but left the engine running.

Surprenant saw the defendant and the victim walk toward the side of one of the nearby apartment buildings, but eventually lost sight of them. Approximately three to four minutes later, Surprenant heard two gunshots. The defendant returned to the vehicle alone about thirty second later, and Surprenant drove out of the complex. The defendant said that he had "shot [the victim] while we was taking a piss while he had his dick in his hand." The defendant expounded that, although he had shot the victim in the head and the face, he wanted to go back to make sure the victim was dead. Rather than returning to the scene, however, the two drove to their former foster home, where Surprenant recommended that they go to the nearby Tyngsboro bridge where they could dispose of the gun. They drove to the bridge, and the defendant got out of the vehicle. Surprenant saw the defendant walk partway across the bridge, but then lost sight of him. A few minutes later, the defendant returned to the vehicle and told Surprenant that he had thrown the gun off the side of the bridge. The two then drove back to their apartment.

Surprenant continued to sell drugs for the defendant until August 1994, when Surprenant was arrested. Although Surprenant and the defendant remained friends, they only discussed the shooting fleetingly, when the defendant informed Surprenant a few weeks after the incident that he had told a couple of people that he had killed the victim. Surprenant told his former girlfriend, Kristin Tatro, about the shooting in 1996 or 1997, and his brother, Jason, in 1999.

Surprenant initially recounted the events surrounding the shooting in 2006, while sitting in a police cruiser, after police drove him to the University Heights apartment complex. He subsequently returned to the Lowell police station later that evening, where he made a video-recorded statement. Surprenant also led police to the Tyngsboro bridge, where the defendant purportedly had disposed of the gun; police then took him home. The...