Commonwealth v. Shepherd

227 N.E.3d 248

COMMONWEALTH

v.Rashad SHEPHERD.

SJC-12405

Supreme Judicial Court of Massachusetts, Essex.

November 7, 2023.

February 22, 2024.

Homicide. Felony-Murder Rule. Retroactivity of Judicial Holding. Practice, Criminal, Retroactivity of judicial holding, Instructions to jury, Argument by prosecutor, Questioning of witness by judge, Assistance of counsel, Capital case. Constitutional Law, Equal protection of laws. Evidence, Argument by prosecutor, Questioning of witness by judge, Hypothetical question. Jury and Jurors. Cellular Telephone.

Indictment found and returned in the Superior Court Department on December 18, 2014.

The case was tried before Richard E. Welch, III, J.; a motion for a new trial, filed on March 15, 2019, was considered by Timothy Q. Feeley, J.; a second motion for a new trial, filed on September 10, 2020, was heard by Kathleen M. McCarthy-Neyman, J.; and a third motion for a new trial, filed on February 7, 2022, was considered by her.

Claudia L. Bolgen, Woburn, for the defendant.

Kathryn L. Janssen, Assistant District Attorney, for the Commonwealth.

Duke K. McCall, III, & Kayla Stachniak Kaplan, of the District of Columbia, Caitlin Glass, Joshua M. Daniels, & Vanessa M. Brown, for Boston University Center for Antiracist Research & others, amici curiae, submitted a brief.

Jessie J. Rossman & Isabel Burlingame, for American Civil Liberties Union of Massachusetts, Inc., amicus curiae, submitted a brief.

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

WENDLANDT, J.

In August 2014, Terrence Tyler, Monique Jones, and the defendant, Rashad Shepherd, hatched a plan to rob the victim, Wilner Parisse. The scheme involved Jones, who had a sexual relationship with the victim and frequently purchased marijuana from him, proposing a sexual tryst as a ruse to lure the victim into a vulnerable position, allowing Tyler and the defendant to enter the victim’s apartment and to take the stash of marijuana they knew he kept in his bedroom closet. But in the early morning of August 16, 2014, when the three coventurers set their plot in motion, the victim was not the "easy mark" they had anticipated; he fought back. In the ensuing melee, the victim was shot once in the chest and killed. Based on the bullet’s trajectory and Jones’s retelling of the events, the prosecution theorized that the defendant was the shooter. Following a jury trial in April 2016, at which Jones testified pursuant to a cooperation agreement, the defendant was convicted of murder in the first degree on the theory of felony-murder, with attempted unarmed robbery as the predicate felony. He was sentenced to life without the possibility of parole.

In this consolidated appeal, the defendant contends that our decision in Commonwealth v. Brown, 477 Mass. 805, 81 N.E.3d 1173 (2017), cert. denied, — U.S. —, 139 S. Ct. 54, 202 L.Ed.2d 41 (2018), in which we abolished felony-murder as an independent theory of liability for murder in the first and second degrees, should extend to the defendant’s case retroactively, despite our determination in Brown to apply our holding only prospectively -- a conclusion we have reaffirmed eight times. The defendant maintains that the determination to apply Brown only prospectively violates the equal protection principles of arts. 1 and 10 of the Massachusetts Declaration of Rights because the data show, inter alia, that use of felony-murder as an independent theory of liability for murder in the first degree disproportionately resulted in the incarceration of Black persons and that, as a result, more Black persons than white persons currently are serving a sentence of life without the possibility of parole for felony-murder. The defendant further urges that the trial judge gave erroneous jury instructions, that the judge’s questioning of, and interactions with, certain witnesses biased the jury, and that he received ineffective assistance of counsel. Finally, the defendant asks this court to exercise its extraordinary authority pursuant to G. L. c. 278, § 33E, to grant him a new trial or to reduce the conviction to a lesser degree of guilt. Having carefully examined the record and considered the defendant’s arguments, we conclude that there is no reversible error and find no reason to disturb the verdict.¹

1. Facts. a. The Commonwealth’s case. The following facts are supported by the evidence presented at trial.

i. Background. The victim shared an apartment on the second floor of a three-story apartment building in Lynn with his roommate and their two dogs. The victim sold marijuana from the apartment, including to Jones. The relationship between the victim and Jones had become sexual approximately six months prior to the shooting. The victim sold marijuana to Jones at a discount, and occasionally, Jones, who was unemployed, resold the marijuana at a profit.

Jones and Tyler had known each other for at least a decade. They had previously dated and remained very close.²

In early August 2014, prior to the killing, Tyler had accompanied Jones to the victim’s apartment; Tyler remained in Jones’s vehicle while she purchased marijuana. After the sale, Tyler remarked that the victim would be "easy to rob," but Jones "brushed off" the comment. Tyler pressed the idea of robbing the victim several times thereafter, disclosing to Jones that Tyler had robbed the victim several years earlier. ii. The night before the shooting. At around 5 or 6 p.m. on August 15, 2014, the day preceding the shooting, Jones began drinking alcohol with a friend, who arrived at Jones’s home in Lynn already intoxicated.³

Tyler called Jones to "hang out," and at approximately 11 p.m., Jones, accompanied by her friend, drove a rental vehicle to pick up Tyler and the defendant. Tyler and the defendant were friends. Jones had known the defendant for about four or five years, but she was not as close with the defendant as with Tyler.

The four went to a restaurant in Lynn, where they would remain until approximately 1 a.m. When they arrived, Jones’s friend went inside the restaurant, leaving Jones, Tyler, and the defendant in the vehicle. Tyler again broached the topic of robbing the victim, emphasizing that it would be an "easy job"; this time, Jones agreed.⁴

Tyler suggested exploiting Jones’s sexual history with the victim. They agreed that Jones would propose that she meet the victim at his apartment for a promised sexual tryst. Then, while the victim was in a vulnerable position, Tyler and the defendant would enter the apartment and take the victim’s marijuana cache, which Jones knew he kept in his bedroom closet. The defendant was present during the formation of the scheme, but he remained silent.

As agreed, Jones contacted the victim by text message, and she exchanged a series of text messages with him between 11:04 p.m. and 1:03 a.m. Some of these text messages were drafted by Tyler, pretending to be Jones. Jones, or Tyler on her behalf, proposed a sex act, and the victim invited her to his apartment.⁵

Surveillance video footage from the restaurant shows the three coventurers there that evening; the defendant did not dispute that he was at the restaurant. The footage captures Tyler, who wore his hair in long dreadlocks, entering the restaurant just prior to 12:15 a.m. The defendant, who wore a baseball cap, a light-colored hooded sweatshirt, darker pants, and light-colored sneakers, entered the restaurant shortly after Tyler.

Jones entered the restaurant at approximately 12:26 a.m., and at 12:35 a.m., the defendant and Jones engaged in a conversation. The footage shows Jones and the defendant walking away from the restaurant together at 12:39 a.m. The prosecution introduced cell site location information (CSLI) data, which indicated that, at 12:42 a.m., the defendant’s cellular telephone connected to a cellular tower covering an area that included the restaurant.

Telephone records show that the victim sent Jones a text message at 1:03 a.m., apparently perturbed that Jones had not yet arrived. In response, the defendant and Jones called Tyler four times between 1:08 and 1:12 a.m. Shortly thereafter, Tyler rejoined the defendant and Jones, and the three coventurers, along with Jones’s friend, got into Jones’s vehicle.

iii. The botched robbery. After leaving the restaurant, Jones, Tyler, Jones’s friend, and the defendant drove to the victim’s apartment and parked nearby. While Jones’s friend, who was intoxicated, was asleep in the front passenger seat, the three coventurers rehashed the plan.

After exchanging telephone calls with the victim at 1:15 and 1:22 a.m., Jones then left Tyler, the defendant, and her slumbering friend in the vehicle. Tyler and the defendant had planned to wait in the vehicle for twenty minutes to allow Jones time to execute the first stage of their plot. Jones entered the exterior door of the victim’s apartment building. She climbed the back staircase leading to the back door of the victim’s apartment, which led to the kitchen. She left the doors unlocked.

To her surprise, she found the victim already partially undressed in his bedroom, which was located off the kitchen. She stalled to give Tyler and the defendant time to execute the next stage of the plan. Jones excused herself to the bathroom, which was located adjacent to the kitchen. Call logs show that she placed a telephone call to Tyler at approximately 1:32 a.m.; Tyler told Jones that he and the defendant were on their way.

The surveillance video footage, while grainy, appears to capture two men, dressed like the defendant and Tyler had been in the restaurant surveillance video footage, waiting outside a vehicle.⁶ It also shows that, at approximately 1:35 a.m., the two men cross the street in the direction of the victim’s apartment, consistent with Jones’s testimony concerning the scheme and its execution. The footage shows the defendant making movements that the prosecutor suggested indicated that he was "securing a gun in his waistband."

Meanwhile, in the...