Commonwealth v. Ware

482 Mass. 717

128 N.E.3d 29

COMMONWEALTH

v.Darryene WARE.

SJC-11387

Supreme Judicial Court of Massachusetts, Plymouth..

Argued April 5, 2019

Decided July 26, 2019

Robert F. Shaw, Jr., Cambridge, for the defendant.

Nathaniel Kennedy, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Lowy, Budd, & Cypher, JJ.

LOWY, J.

Shots were fired into a crowd attending an outdoor baby shower in Brockton around 11 P.M. on April 25, 2009. Multiple people were injured, and one person was killed. A jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation.¹ We have consolidated the defendant's appeal from his convictions with his appeal from the denial of his motion for a new trial.

State police Trooper Robert F. Clements, Jr., who was assigned to the district attorney's office, testified at trial that the defendant told police during two separate interviews that he was picked up on the night of the shooting in the area of a Dunkin' Donuts restaurant that was near the crime scene, and next to which three people were observed jumping into a back yard after the shooting. This testimony was false. As demonstrated by the trooper's police reports and transcripts of the defendant's interviews with police, the defendant never told police that he was picked up at or near Dunkin' Donuts.² Because the Commonwealth's erroneous elicitation of and failure to correct this false testimony created a substantial likelihood of a miscarriage of justice, we reverse.³

Background. We recite pertinent facts the jury could have found, with an emphasis on testimony about where the defendant was "picked up" on the night of the shooting. The Commonwealth's theory at trial was that the defendant tried to kill the victim's boyfriend at a baby shower, and that the defendant inadvertently killed the victim instead. The defendant and the victim's boyfriend were members of rival gangs, and the defendant made known that he did not like the victim's boyfriend and "was going to get him." The defendant was part of a group that decided to target the victim's boyfriend. A member of that group learned that the boyfriend was going to be at a party on April 25, 2009, but after learning that the party was a baby shower he said at a meeting in the week before the shooting that they "shouldn't hit it." The defendant responded that he still "wanted to do it" and that he did not care "if it was a baby shower or not."

A friend of the defendant electronically sent "instant messages" to the defendant around 2 or 3 P.M. from the April 25 baby shower, telling the defendant that the victim's boyfriend was there. Shots were later fired from the street into a crowd attending the baby shower around 11 P.M. , killing the victim. Some witnesses to the shooting thought there was one shooter, and others thought there were more. Nobody at trial identified the defendant as a shooter.

A resident of the area testified that she saw three people jump into her back yard after she heard gunshots just before 11 P.M. on April 25, and that her back yard abuts a Dunkin' Donuts. The Dunkin' Donuts is roughly a five-minute walk from the crime scene.

The defendant's marijuana dealer, David Barros, testified that the defendant telephoned and asked for a ride on the night of the shooting. Barros picked up the defendant around 11:30 P.M. When Barros asked the defendant whether the defendant knew how many people had been shot at the baby shower, the defendant said, "I don't know yet."

Barros did not remember at trial where he picked up the defendant. The trooper testified that Barros had told police that he picked up the defendant near Dunkin' Donuts. Although Barros testified that he did not remember telling police that he picked up the defendant near Dunkin' Donuts, he admitted that while he and the defendant were driving, they stopped at a traffic light next to the Dunkin' Donuts and saw "an unmarked police car pass[ ] by with the lights flashing."

The trooper also testified that the defendant told police on two occasions that Barros picked him up in the area of Dunkin' Donuts. According to the trooper, the defendant also told police that "when [the defendant] was in [Barros]'s car in the area of Dunkin' Donuts, he had seen police cars going by with their lights on."

Roughly four hours after the shooting, at around 3 A.M. , the defendant went to the house of the friend who had sent him instant messages from the baby shower. The friend testified that it was uncommon for the defendant to go to her house around that time of the morning, and that although the defendant was usually "hyper and jumpy," he was more nervous than usual and "was a weird type of jumpy and nervous." It seemed to the friend that the defendant already knew about the shooting.

The Commonwealth did not present a murder weapon, and bullets found at the crime scene were not compared against any particular firearm. However, the defendant was seen with a .25 caliber firearm in the month before the shooting, and a ballistics expert testified that the fatal bullet found in the victim's body was consistent with .25 caliber ammunition and that multiple .25 caliber cartridge casings were recovered from the crime scene. Additionally, the defendant was seen looking for the victim's boyfriend with a .22 caliber handgun in the months after the shooting, and there was testimony that the shots at the baby shower sounded like they came from a .22 caliber handgun. Two days after the shooting, the defendant was seen with bullets and a revolver that was not fully loaded.

There was evidence that the defendant confessed multiple times to killing the victim. At a gathering after the shooting, the defendant "jumped up and said he killed that bitch." On cross-examination, however, a witness to the defendant's outburst testified that after the defendant said he "killed the bitch," "[e]veryone start[ed] laughing" and one of the people present said, "[H]e's joking." Additionally, the witness admitted that the defendant had earlier told him that the defendant had nothing to do with the shooting.⁴

A childhood friend of the defendant testified that the defendant confessed multiple times to killing "[the boyfriend]'s bitch." The friend testified on cross-examination that he was "laughing at" the defendant and "thought [the defendant] was joking" at the time of the confessions. He also acknowledged that he had told the grand jury it was in the defendant's nature to "lie[ ] about things." However, on redirect examination, the friend testified that he no longer thought the defendant was joking when he reported the defendant's actions to the police.

Another witness testified that she overheard the defendant say to someone else that he shot "the bitch," referring to the victim. According to the witness, the defendant told her not to say anything about what she heard and she delayed going to the police because she "didn't want to die." Another witness who was present during the conversation between the defendant and the other individual testified, "I'm pretty sure if I heard someone confess that they murdered someone I would have remembered it.... And I really don't remember hearing that." She also acknowledged that she intentionally did not pay attention to the defendant's conversation.

The defendant moved for a new trial on various grounds. Most relevant to our decision is the defendant's claim that the trooper testified falsely that the defendant told police that Barros picked him up on the night of the shooting at the Dunkin' Donuts near the crime scene. After a hearing, the judge denied the motion in a written decision. With respect to the trooper's testimony about where the defendant said he was picked up, the judge concluded that although "there is a discrepancy between [the trooper's] testimony on direct examination and his police report," "[t]he mere fact that a prosecution witness gives inconsistent testimony does not amount to a violation of [the cases] dealing with false testimony." The judge also observed that defense counsel "corrected" the inconsistency on cross-examination and that the trooper "adopted" the information in his police report. However, in his analysis, the judge discussed only the trooper's testimony about the first interview with the defendant, even though the trooper testified that the defendant had said he was picked up in the area of Dunkin' Donuts during two separate interviews.

Discussion. In reviewing the denial of a motion for a new trial, "[w]e review the motion judge's decision for abuse of discretion." Commonwealth v. Burgos, 462 Mass. 53, 60, 965 N.E.2d 854, cert. denied, 568 U.S. 1072, 133 S.Ct. 796, 184 L.Ed.2d 589 (2012). Where, as here, the motion judge was also the trial judge, "we afford particular deference" to the judge's factual findings. Commonwealth v. Ferreira, 481 Mass. 641, 649, 119 N.E.3d 278 (2019).

"The Commonwealth may not present testimony at trial ‘which [it] knows or should know is false.’ " Commonwealth v. Forte, 469 Mass. 469, 490, 14 N.E.3d 900 (2014), quoting Commonwealth v. Sullivan, 410 Mass. 521, 532, 574 N.E.2d 966 (1991), S.C., 469 Mass. 340, 14 N.E.3d 205 (2014). Nor may the Commonwealth, "although not soliciting false evidence, allow[ ] it to go uncorrected when it appears." Commonwealth v. Hurst, 364 Mass. 604, 608, 307 N.E.2d 835 (1974), quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Because the defendant did not raise at trial the issue of false testimony,⁵ we review any error for a substantial likelihood of a miscarriage of justice.⁶ See Commonwealth v. Woollam, 478 Mass. 493, 504, 87 N.E.3d 64 (2017), cert. denied, ––– U.S. ––––, 138 S. Ct. 1579, 200 L.Ed.2d 766 (2018), citing Burgos, 462 Mass. at 60, 965 N.E.2d 854 (reviewing for substantial likelihood of miscarriage of justice claim of "prosecutorial misconduct in failing to correct" false testimony).

The trooper testified at trial that during...