Commonwealth v. Watson

487 Mass. 156

165 N.E.3d 1015

COMMONWEALTH

v.Javaine WATSON.

SJC-12616

Supreme Judicial Court of Massachusetts, Suffolk..

Argued October 9, 2020.

Decided April 6, 2021.

Neil L. Fishman, for the defendant.

Darcy A. Jordan, Assistant District Attorney, for the Commonwealth.

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

CYPHER, J.

A jury convicted the defendant, Javaine Watson, of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty and of accessory after the fact for the shooting death of Romeo McCubbin.¹ The defendant seeks reversal of his convictions, arguing that (1) his conviction of murder in the first degree must be vacated because the Commonwealth did not present legally sufficient proof regarding deliberate premeditation or extreme atrocity or cruelty; (2) the jury instruction on joint venture liability created a substantial likelihood of a miscarriage of justice; (3) this court must reverse the accessory after the fact conviction for various reasons; (4) the trial judge should have ordered the defendant's trial to be severed from that of the codefendants; and (5) the trial judge's answer to a question from the jury during deliberations was wrong as a matter of law and prejudiced the verdicts. He also urges this court to exercise its authority under G. L. c. 278, § 33E, to set aside the convictions or, alternatively, to reduce his murder conviction to murder in the second degree. For the reasons stated infra, we affirm the defendant's conviction of joint venture murder in the first degree and vacate his conviction of accessory after the fact. After a thorough review of the record, we decline to exercise our authority under G. L. c. 278, § 33E, to grant a new trial or reduce or set aside the verdict of murder in the first degree.

Background. At around 1:45 A.M. on December 14, 2013, the victim was shot multiple times, resulting in his death at the scene on Havelock Street. The victim had attended an event earlier that night at a nightclub located at the corner of Havelock Street and Blue Hill Avenue in the Mattapan section of Boston. A person called 911 to report the shooting, the shots could be heard from a local police station, and ShotSpotter² reported shots fired.

1. Nightclub. An investigation revealed that Omar Bonner, Andrew Robertson, and Omar Denton were at the same event at the nightclub on the night the victim was shot. Nadira Amoroso³ testified that she did not see the defendant at the nightclub that night, but during her grand jury testimony, which was admitted substantively under Commonwealth v. Daye, 393 Mass. 55, 73-75, 469 N.E.2d 483 (1984), she testified that she had seen him there that night. Photographs taken that night show that Bonner was dressed all in red, including a hat and a plaid scarf; Denton was dressed in a black hat and a maroon sweater over a white shirt; and Robertson was dressed in a hat and a dark scarf that covered his face.

2. Surveillance video recording. A home surveillance camera mounted on a home on Havelock Street captured a recording of the shooting. The Commonwealth combined the surveillance video footage with audio recordings from ShotSpotter and the police radio transmissions, and the compilation was played for the jury and admitted as an exhibit. The video footage showed two sport utility vehicles (SUVs), whose appearances were consistent with the red Lincoln MKX driven by the defendant and the silver Toyota RAV4 driven by Bonner and Denton, going down Havelock Street at the same time. Shortly thereafter, a Ford Explorer, later determined to be driven by the victim, went down Havelock Street and parked. A person, with a scarf trailing from his neck, ran toward the Ford Explorer and shot ten times into the driver's side door and window. An SUV, which the video recording showed to be consistent with the Lincoln, was driven up next to the Ford Explorer and stopped to let the shooter get into the front passenger's seat, and then was driven away. The victim then rolled out of the passenger's side door onto the sidewalk.

About forty seconds after the first shooting, as the victim lay on the ground, a second person walked toward the victim. The second person was wearing a dark hat and a dark shirt with a white triangle at the collar. The second person was followed by a third person, who was wearing monotone clothing. The second person aimed a handgun at the victim and shot him four times. The third person then kicked the victim, and the two ran away.⁴

3. Arrest of Bonner and Denton. As officers responded to the shooting, Boston police Detective Brian Smigielski⁵ saw a silver Toyota RAV4 being driven away from the location where shots were reported. Smigielski followed the RAV4 to the driveway of a home on Wood Avenue where Bonner's family lived. Bonner and Denton got out of the RAV4 and ran away. Police caught both men; they found a black hat, later determined to contain deoxyribonucleic acid that matched Denton, and near Bonner they found his cellular telephone (cell phone) and a red hat on the ground, as well as a .380 caliber firearm in a yard near where he ran.

When the police arrested them, Bonner was wearing a plaid scarf and a red shirt and Denton was wearing a maroon sweater over a white shirt and had left a black jacket in the RAV4.

While at the police station, police recovered a cell phone from Denton's crotch area and overheard him tell Bonner that he told Bonner's sister to call "S.P." and that he had called "S.P." when he was in the wagon. Bonner's sister and Robertson's friends knew Robertson as "Spoilers."

4. Lincoln MKX. On December 12, 2013, Amoroso had rented a red Lincoln MKX. She testified that the defendant borrowed the Lincoln from her at around 10 P.M. on the night of December 13, 2013.

At around 2:30 to 2:45 A.M. on December 14, 2013, police officers discovered an unoccupied red Lincoln MKX blocking a driveway in the vicinity of where they arrested Bonner and Denton. The vehicle was running, the gear was in reverse, the driver's side window was open, and the back of the vehicle was against a fence post. Police found a cell phone, with the number ending in 6426, on the driver's seat and a set of keys in the center console, both of which were later identified as belonging to the defendant. Further investigation revealed fingerprints, located inside and outside the Lincoln, that were consistent with fingerprints of the defendant and each of his codefendants.⁶ The defendant's fingerprints were located on the gear shift, the inside driver's side door handle, the outside driver's side door handle and surrounding area, and the outside of the front and rear passenger's side doors. Robertson's fingerprints were located on the outside front passenger's side door and handle, the inside front passenger's side door handle, and the driver's side door. Denton's fingerprints were found on both the inside and outside rear driver's side door handles, and Bonner's were found on both the outside rear passenger's side door and the inside rear passenger's side door handle.

5. Cell phone records. The cell phone recovered by the police from the Lincoln with the number ending in 6426 (6426 number) was registered to the defendant's stepmother, but the defendant used it as his cell phone. The cell phone had contact information for "Big O," "Lil O," and "Sick." Bonner's nickname was "Big O," and Denton's nickname was "Lil O." The number associated with "Sick" was registered to an account opened for Robertson by Robertson's former girlfriend.

On the night of December 13, 2013, at 10:52 P.M. , the 6426 number cell phone was used to place a call to Lil O for thirty-four seconds; at 11:24 P.M. , the same cell phone was used to place a call to Sick for twenty seconds; and at 11:39 P.M. , the same cell phone received a call from Big O for almost four minutes. On December 14, 2013, a call was missed on the 6426 number from Big O at 1:44 A.M. , and then the 6426 number was used to make three calls to Big O: two at 1:47 A.M. , and one at 1:48 A.M. The cell phone was not used to make or answer any calls after the third call to Big O. One of the cell phone's missed calls was from Amoroso at 10:02 A.M. on December 14.

In addition, less than three minutes before the shooting, Bonner's cell phone was used to call Denton's cell phone. The cell phone that police recovered from Denton's crotch area had been used to call Sick at around 2 A.M. on December 14, 2013.

In September 2013, Robertson's former girlfriend, Judith Nelson, opened a cell phone account for Robertson, with the number ending in 8764 (8764 number). This number was listed in the defendant's cell phone as the contact for Sick. Nelson testified that Robertson had only one cell phone, but before the grand jury she had testified that he had two cell phones. Amoroso testified that the defendant had two cell phones and that she spoke with him daily on the 8764 number. Nelson cancelled Robertson's cell phone service on December 15, 2013, at his request.

An analysis of the codefendants’ cell phone calling patterns between November 15 and December 14, 2013, revealed frequent contacts between the various cell phones. These included 203 contacts between the 8764 number and the 6426 number.

6. Ballistics. The police recovered four .380 caliber shell casings and three live rounds of .380 caliber ammunition near the victim's body. The victim was shot two times in the head and nine times in the rest of his body. The medical examiner testified that the shots to the head were fatal and that the other shots were likely fatal. She further testified that these wounds would have resulted in the victim's death within seconds to minutes.

The .380 caliber bullets recovered from the victim's head were matched to the .380 handgun found in Bonner's flight path. Police recovered ten nine millimeter shell casings from the scene and four spent nine millimeter bullets from inside the Ford Explorer,...