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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth
v. Evans, 437
Present: Marshall, C.J.,
The cases were tried before Robert W. Banks, J., and
postconviction motions were heard by Elizabeth B. Donovan, J.
Michael R. Schneider for Jimmy Evans.
Emanuel Howard for John Evans.
Paul B. Linn, Assistant District Attorney, for the Commonwealth.
SPINA, J.
The defendants, brothers John Evans (John) and
Jimmy Evans (Jimmy), were convicted of murder in the first degree on theories
of extreme atrocity or cruelty and of deliberate premeditation, and illegal
possession of handguns (G. L. c. 269, § 10 [a]), and ammunition (G. L. c. 269,
§ 10 [h]). John was also convicted of assault by means of a dangerous weapon,
discharging a firearm within 500 feet of a building (G. L. c. 269, §12E),
and a number of motor vehicle and weapons violations.[2] Both defendants
filed motions for a new trial, and motions for funds for an investigator as to
claims raised in their motions for a new trial. A judge in the Superior Court
(not the trial judge) denied both postconviction motions without an evidentiary
hearing. On appeal the defendants claim error in various evidentiary rulings,
prosecutorial misconduct during closing argument and during the
cross-examination of Jimmy, ineffective assistance of counsel, and error in the
denial of their motions for a new trial and for postconviction funds to
investigate. We affirm the convictions and decline to exercise our power under
G. L. c. 278, § 33E, to order a new trial or reduce the convictions.
1. Background. The jury could have found the following facts. At about
The victim, Holliday, and their friend arrived at Walaikum's at approximately
Alton Clarke, a patron of the restaurant, tried to leave but was confronted by
John who was armed with a black handgun. Clarke was allowed to leave after he
said he had nothing to do with the victim. John then approached the victim and
fired a shot at him. Clarke heard the shot from just outside the restaurant and
said it sounded different from the shots he heard when he was inside. Willy
Wiggins, who owned Walaikum's, saw the first gunman shooting at the victim,
then went to the back of the restaurant to telephone the police.
The defendants, Brown, and Tinsley fled the scene in a gold Lexus automobile.
John drove, Jimmy sat in the front passenger seat, and the other two sat in the
back. Police arrived and pursued them. At one point a marked police cruiser
with its blue lights flashing was forced off the road to avoid a head on
collision with the Lexus. During the chase two guns were thrown out of the
front passenger window of the Lexus. The Lexus turned up a dead end street and
stopped. The occupants were apprehended as they tried to flee on foot. The two
guns thrown from the Lexus were recovered. One was a silver-plated nine millimeter
Ruger semiautomatic handgun with a black handle. The other was a black nine
millimeter Heckler & Koch semiautomatic handgun.
Ballistics evidence recovered from both inside and outside the restaurant
included six shell casings (three from the Ruger, and three from the Heckler
& Koch, and four bullet fragments (two from the Ruger, and two from the
Heckler & Koch, including a projectile removed from the victim's body). No
identifiable fingerprints could be retrieved from either gun.
The victim died from an infection due to his wounds. He had been shot three
times. One shot passed through his left forearm and into his ribs. Two shots
entered the left side of his abdomen and passed through his body. A fourth was
recovered from his body. The victim had no gunpowder residue on his clothes,
indicating that he had been shot from a distance of at least three feet.
The four men were tried together on a theory of murder by joint venture. Both
John and Jimmy testified, but neither Brown nor Tinsley testified. The jury
found the defendants guilty, and acquitted Brown and Tinsley.
2. Evidentiary rulings.
(a) The defendants argue that their rights under the Sixth Amendment to the
United States Constitution and art. 12 of the Massachusetts Declaration of
Rights to cross-examine a Commonwealth witness, Alton Clarke, with evidence of
bias was impermissibly limited by a ruling that charges pending against him in
Suffolk County, including aggravated rape and kidnapping (Commonwealth v.
Clarke, 48 Mass. App. Ct. 482 [2000]), be described as "serious felony
charges" during cross-examination without naming the specific crimes.
Where there is some evidence of bias, a defendant has a constitutional right to
cross-examine a prosecution witness to show bias, but "the judge has broad
discretion to determine the scope and extent of cross-examination."
Commonwealth v.
The defendants were able to explore adequately the question and extent of
Clarke's bias and motive to cooperate with the prosecution arising from the
pending "serious felony" charges without referring to the specific
charge. Clarke testified emphatically that he was promised nothing and he expected
nothing. Clarke in fact later went to trial and was convicted of aggravated
rape and kidnapping. His convictions were reversed on appeal.
(b) The Commonwealth called a witness, Marvette Neal, who testified that he
knew the victim and the Evans brothers. He recalled seeing the victim at
Cortee's on
A writing may be admitted under the past recollection recorded exception to the
hearsay rule if "(1) the witness has no revivable recollection of the
subject, (2) the witness had firsthand knowledge of the facts recorded, (3) the
witness can testify that the statement was truthful when made, and (4) the
recording was made when the events were fresh in her memory." Commonwealth
v. Nolan, 427
The Commonwealth alternatively contends that Neal's grand jury testimony was
admissible for substantive purposes under the rule of Commonwealth v. Sineiro,
432 Mass. 735, 741 (2000), in which we extended the principle of Commonwealth
v. Daye, 393 Mass. 55, 75 (1984) (under certain conditions, acknowledged prior
testimony of witness before grand jury that is inconsistent with his trial
testimony may be admitted for substantive use), to instances where a witness
falsely asserts a lack of memory of the event and a lack of memory of his prior
testimony. Before a witness's grand jury testimony may be admitted under the Daye-Sineiro
rule, the judge must make a preliminary finding that the witness's claimed lack
of memory has been fabricated. If that finding is made and is supported by the
evidence, it is conclusive.
Where the erroneous admission of hearsay involving an identification of the
defendant has been preserved for appellate review and the declarant testified
at trial, we review its impact for prejudicial error.
(c) The prosecutor was permitted, over objection, to lay a foundation for his
anticipated impeachment of Marvette Neal by prior inconsistent statement. Neal
was asked during his direct examination if he had told police on February 10,
1995, that he had seen Jimmy walk into Walaikum's and stare at the victim, walk
over to the entrance, where he ratcheted the slide of a silver automatic
handgun, then approach the victim and fire approximately five shots at him. He
was also asked whether he had told police that John entered Walaikum's and
fired three or four shots at the victim after Jimmy shot him. Neal denied
making those statements to police. The judge immediately instructed the jury
that, where Neal denied making the statements incorporated in the prosecutor's
questions, and where there was no evidence that Neal ever made those
statements, there was no evidentiary value in the questions.
The next day the prosecutor called Detective Kenneth Dorch of the
The defendants respond by arguing that the prosecutor had no legitimate basis
to impeach Neal with a prior inconsistent statement. They contend that because
Neal had given very little testimony that could be considered for substantive
purposes, and all of it favorable to the Commonwealth, the plan to impeach Neal
with a prior inconsistent statement was nothing more than a "subterfuge to
get before the jury evidence not otherwise admissible." Commonwealth v.
Benoit, 32 Mass. App. Ct. 111, 115 (1992), quoting United States v. Morlang,
531 F.2d 183, 190 (4th Cir. 1975).
The argument has initial appeal, but it ignores one important fact. A proper
basis for admitting Dorch's testimony did exist. Neal had been asked on
cross-examination whether he ever saw John with a gun in his hand on January 24
or 25, to which he said he was sure that he had not. He was also asked on
cross-examination if he ever saw Jimmy shoot anyone in Walaikum's, or if he saw
Jimmy with a gun. Neal answered both questions in the negative. That
cross-examination provided evidence that was relevant to the issues on trial
and helpful to the defense, but it also provided the proper basis needed by the
prosecutor to impeach Neal with his prior inconsistent statement to Dorch.
(d) The judge ruled that the defendants could not ask Eddie Hawkins, a
potential defense witness, about his pretrial statement to police that Tinsley
had admitted shooting the victim. The ruling came after a voir dire in which
Hawkins repudiated his prior statement. He testified during voir dire that
Tinsley had not told him that he shot the victim, and that he fabricated the
statement he gave police with the hope of gaining favorable treatment in his
own pending case. As a result of the ruling, Hawkins was never called to
testify. The defendants claim that the ruling violated their constitutional
right to present a defense, guaranteed by the Sixth Amendment and art. 12.
Hawkins's prior statement to police was hearsay, and the defendants have not
shown that the hearsay fell within an exception to the hearsay rule.
In any event, exclusion of the desired testimony could not have prejudiced the defendants.
The Commonwealth proceeded against them at trial under the theory that they
were joint venturers as well as principals. Tinsley's purported admission that
he was one of the shooters was consistent with the Commonwealth's theory. Jimmy
admitted in his testimony that he fired the Ruger; Holliday had testified that
all four men appeared to be acting in concert inside the restaurant; and John
admitted driving the getaway car.
3. The prosecutor's closing argument. The defendants argue that the prosecutor's
closing argument was improper in three respects.
(a) The defendants contend that the prosecutor improperly vouched for the
credibility of Alton Clarke by arguing that he (the prosecutor) had no deal
with Clarke. Counsel objected at the conclusion of the prosecutor's argument.
Clarke had stated emphatically that he received no promises, and that he
expected nothing for his testimony. The prosecutor's interjection of himself
into Clarke's testimony by implying that Clarke had no deal with him personally
and by saying that Clarke was "expecting nothing from me" was unwise
and unfortunate, but in the context of the whole argument, it did not
constitute improper vouching. His comments were nothing more than a paraphrase
of Clarke's testimony.
(b) The defendants argue that the prosecutor improperly appealed to the
sympathy of jurors. The prosecutor referred to the arrival of the victim's mother
at the scene as the victim was being placed in an ambulance, and that the
victim began to cry when he saw her. The prosecutor then asked: "Should
any mother have to see her own son [like] that?" The judge immediately
interrupted the prosecutor and instructed the jury that "emotions have
nothing to do with this. You must be very clinical. I refer you to alluding to
the mother's feeling. I want you to disregard that." Counsel did not
object and there was no request for a further instruction from the judge, an
indication from experienced trial counsel that the judge's response was
appropriate to mitigate any prejudice.
The defendants also argue that the prosecutor improperly appealed to juror
sympathy when he argued that the victim left a five year old child. The
Commonwealth may properly "tell the jury something of the person whose
life [has] been lost in order to humanize the proceedings." Commonwealth
v. Degro, 432
(c) There is no merit to John's claim that the prosecutor improperly disparaged
a defense witness, Willie Wiggins, and that the prosecutor implied that he (the
prosecutor) had a supervisory role over defense counsel's selection of
witnesses. The prosecutor merely commented on the failure of the witness to
testify as predicted in defense counsel's opening statement, something he was
entitled to do.
4. Assistance of counsel. John claims that he was denied the effective
assistance of counsel in several respects. Both defendants argue that their
respective counsel were ineffective because they failed to investigate and
develop forensic evidence to assist in their defense.
(a) John's first claim of ineffective assistance of counsel involves failure to
object to testimony of the victim's mother, which, he argues, was marginally
relevant and "appears to be more related to evoking sympathy [than] to
proving the elements of the alleged crimes." Commonwealth v.
Under G. L. c. 278, § 33E, our review of claims of ineffective assistance of
counsel is not limited to the adequacy of trial counsel's performance. We
consider whether any "error in the course of the trial (by defense
counsel, the prosecutor, or the judge) . . . was likely to have influenced the
jury's conclusion." Commonwealth v. Wright, 411
The testimony of the victim's mother was brief, covering four pages of eleven
volumes of trial transcripts. She identified a photograph of her son, testified
that he was twenty-two years old at the time he died, that he had a five and
one-half year old child, and three siblings. She testified that he started to
cry when he looked at her as he was being placed in an ambulance. As previously
discussed, Part 3 (b), supra, the prosecutor was entitled to "tell the
jury something of the person whose life [has] been lost," Commonwealth v.
Degro, supra at 323, and the victim's reaction to seeing his mother was
relevant to show that he was close to her. The judge would have acted within
his discretion had he admitted this testimony over objection. The prosecutor's
development of her testimony was factual and he did not emphasize or exploit
its emotional potential.
(b) John faults counsel for failing to object to the testimony of Gene Robbins,
which informed the jury that, under the name Anthony Wilson, John leased the
gold Lexus from Lexus of Norwood. The defendant claims that this evidence was
not material to any issue in the case and therefore was the "functional
equivalent" of improper character evidence.
As to the testimony that John had leased the Lexus under a different name,
counsel had a strategic reason for not objecting. There had been testimony that
John used the name Anthony D. Wilson at the time of his booking. Trial counsel
immediately began to diffuse the potential for that evidence to be used as
consciousness of guilt, see Commonwealth v. Carrion, 407
(c) There is no merit to John's claim that counsel should have moved to sever
the trial of his indictments from those of Robert Brown so that Brown could
have been tried first, acquitted, and then testify for him at John's trial.[6]
There is nothing in the record to show that counsel knew or could have known
before trial that Brown would have been tried first, that Brown would have been
acquitted, or that Brown would have testified favorably for John if the cases
had been severed. See
(d) John asserts that counsel was ineffective in three respects pertaining to
the indictment alleging illegal discharge of a firearm (G. L. c. 269, § 12E)
during the earlier incident outside Cortee's. He claims that counsel should
have filed (i) a pretrial motion to dismiss based on the sufficiency of the
evidence presented to the grand jury, Commonwealth v. McCarthy, 385 Mass. 160
(1982); (ii) a pretrial motion to sever the trial of this indictment from the
other indictments because the conduct supporting the two sets of indictments
was unrelated, Commonwealth v. Blow, 362 Mass. 196, 200 (1972); and (iii) a
motion for a required finding of not guilty based on the sufficiency of the
evidence at trial, Commonwealth v. Latimore, 378 Mass. 671, 679-680 (1979).
Marcello Holliday testified before the grand jury that he saw John outside
Cortee's at about
If counsel had moved to sever trial of the indictment alleging a violation of
G. L. c. 269, § 12E, from trial of the other indictments, there would have been
no error in denying the motion. The incident outside Cortee's was relevant to
show that John had access to a weapon consistent with one of the weapons used
in the homicide shortly thereafter.
A motion for a required finding of not guilty on the indictment alleging the §
12E violation would not have been meritorious, for reasons similar to those
discussed with respect to the sufficiency of the evidence presented to the
grand jury. Holliday's testimony at trial was substantially similar to his
testimony before the grand jury about the incident. In addition, Officer Earl
Perkins testified that he heard the shots, and went to Cortee's to investigate.
Officer Richard Walker testified that shortly thereafter he saw a beige Lexus,
similar to the Lexus driven by John after the shooting at Walaikum's, speeding
away from Cortee's, from which the jury could have inferred that it was John
fleeing. We are satisfied that the evidence met the standard set forth in
Commonwealth v. Latimore, supra, to warrant denial of a motion for a required
finding of not guilty.
(e) John claims spillover prejudice from the improper joinder of the indictment
alleging the § 12E violation. Although we conclude that joinder was proper, we
must address an evidentiary issue and an allegation of prosecutorial misconduct
raised in his argument. The judge admitted, over John's objection, evidence
that Officer Richard Walker was dispatched to the area around Cortee's to
investigate a call about gunshots. He saw a Peugeot moving toward him at a high
rate of speed, followed closely by a beige Lexus. He turned his cruiser around
and followed them. The Lexus had turned away in another direction. He
eventually stopped the Peugeot. Its right rear window had been shattered. About
forty-five minutes later he became involved in the chase of the Lexus leased by
John, which appeared similar to the one he had seen behind the Peugeot. John
contends that the prosecutor later improperly suggested in his closing argument
that the beige Lexus was being driven by him, that he was chasing the Peugeot,
and that he destroyed the rear window of the Peugeot with a gunshot.
The evidence concerning the Peugeot and the Lexus at Cortee's was admissible.
The incidents at Cortee's and Walaikum's occurred within one mile of each other
and about one-half hour apart. The Lexus driven by John as the getaway car
after the shooting at Walaikum's was similar to the Lexus speeding away from
Cortee's shortly after the shooting there. Evidence of John shooting a gun
outside Cortee's was relevant. The inference that he was driving the Lexus that
sped away from Cortee's was a fair inference, and the prosecutor's argument to
that effect was fair. An inference need not be inescapable, just reasonable and
possible.
We turn to the argument that the prosecutor improperly implied in his closing
that John was chasing after the Peugeot and had destroyed the rear window with
a gunshot. One week before his closing argument, during a sidebar conference in
the middle of
(f) Both defendants contend that their counsel were ineffective for failing to
investigate and develop forensic evidence. In particular, they assert that
counsel failed to arrange (i) bullet trajectory, (ii) blood, and (iii)
fingerprint tests. We conclude that there was no reason for counsel to believe
that any testing would benefit the defense or that any hoped for results would
likely have influenced the jury's conclusion.
(i) Jimmy argues that his counsel was ineffective for failing to engage a
ballistics expert to give bullet trajectory evidence. Jimmy had testified that,
after he had stepped outside Walaikum's, the Ruger discharged accidentally
three times as it was pointing downward. A bullet fragment fired from the Ruger
was found on a rug in the middle of the floor at Walaikum's. It had blood on
it, from which the jury could infer that it was one of the bullets that passed
through the victim's body. Contrary to Jimmy's claim, there was no evidence
that the bullet had been moved. Because the victim had been lying down when he
was shot, it is not likely that a ballistics expert could have helped the
defense in any material respect.
(ii) If counsel had arranged to test the blood on Tinsley's coat, and if the
test results indicated that the blood was that of the victim, the
Commonwealth's case against the defendants would not have deteriorated. The
Commonwealth had proceeded at trial on the basis that all four defendants were
in close proximity to the victim in the confined space of Walaikum's. The
prosecutor conceded twice at trial that the blood on Tinsley's coat could be
the victim's, and he introduced evidence that the blood type on Tinsley's coat
was consistent with that of both the victim and Tinsley. Thus, the blood
evidence was not a substantial part of the Commonwealth's case.
(iii) The failure to conduct fingerprint testing of the guns similarly would
have produced nothing better for the defense. There is no reason to believe
that the Commonwealth's fingerprint expert was wrong in concluding that there
was insufficient fingerprint detail on either gun to make an identification.
Nor is there reason to believe that he was wrong in concluding that in only
about two per cent of cases do guns yield identifiable fingerprints, and in
cases where prints can be identified, the age of the print cannot be
determined. Thus, fingerprint evidence also was not a substantial part of the
Commonwealth's case.
We conclude that the defendants have failed to show that they were denied the
effective assistance of counsel.
5. Motions for a new trial. The defendants filed motions for a new trial and
for an evidentiary hearing on the motion. The newly discovered evidence is laid
out in two affidavits. The first affidavit is that of John's appellate counsel,
which states that Robert Brown, a codefendant who was acquitted, told counsel
that Tinsley admitted three times that he shot the victim: once in the Lexus as
they were fleeing from Walaikum's, once in court while they were waiting to be
arraigned, and at a third time at the Nashua Street jail. Brown also allegedly
told counsel that he was outside Walaikum's with John during the shooting. The
second affidavit is that of Tasha Smith, who stated that she was outside
Walaikum's talking with John at the time of the shooting.
"A defendant seeking a new trial on the ground of newly discovered
evidence must establish both that the evidence is newly discovered and that it
casts real doubt on the justice of the conviction." Commonwealth v. Grace,
397
John was aware of Tinsley's admission in the car as they fled Walaikum's
because he testified about it. He also testified that he was outside Walaikum's
at the time of the shooting talking with three friends, including Tasha Smith,
although he did not know their last names. Consequently, the evidence in
question is not "newly discovered." The defendants try to avoid the
consequences of the rule by distinguishing the evidence as "newly available."
They contend that Brown was not available because of his right not to testify
under the Fifth Amendment to the United States Constitution, and Smith moved
and could not be located until her affidavit was prepared. We recognize no such
distinction, and treat them the same under the rule.
Moreover, Brown's assertions, which were contained in an affidavit signed by
appellate counsel, constitute inadmissible hearsay and need not be considered.
Commonwealth v. Francis, 432
Nothing in what Brown or Smith could have said would have helped Jimmy,
especially where Brown told counsel that Tinsley passed his gun to Jimmy, who
then threw both guns out of the car. As previously noted, Jimmy admitting
having the Ruger in his hand when it was discharged, and the jury could have
inferred that a bullet fired from Jimmy's gun, recovered from the middle of the
floor at Walaikum's with blood on it, had been fired at the victim
intentionally while Jimmy was inside the restaurant, not accidentally while he
was outside. None of the "new" evidence could help him on that point.
Where the defendants failed to present a substantial issue, there was no error
in the denial of the requests for an evidentiary hearing. Where the evidence
was not newly discovered, the motions for a new trial were correctly denied.
Finally, to the extent that the motions also raised issues that have been
raised in the defendants' direct appeals, the motions were correctly denied.
6. Motion for funds. The defendants filed motions for funds to conduct forensic
tests to support their claims of ineffective assistance of counsel, discussed
in part 4 (f), supra. Rule 30 (c) (5) of the Massachusetts Rules of Criminal
Procedure, as appearing in 435
The defendants have failed to make the prima facie showing that the tests now
sought would have produced results that likely would have influenced the jury's
conclusion. See Part 4 (f), supra.
7. Miscellaneous issues. Jimmy raises four additional issues that may be
resolved summarily.
The prosecutor's question to Jimmy about his lack of concern for the people in
Walaikum's was relevant to Jimmy's state of mind at the time of the shooting.
The prosecutor's sarcastic remark about Jimmy's inability to recall the last
names of friends was uncalled for and unprofessional, but the judge
interrupted, told the prosecutor to refrain from making comments, and directed
the jury to disregard the remark. The judge kept the trial under control and
the transgression reflected more poorly on the prosecutor than it did on the
defendant.
There is no merit to the claim that the judge improperly excluded Jimmy's
explanation for discarding his gun. Jimmy did explain, and as he started to
ramble, the prosecutor objected and counsel put a new question to him. There
was no ruling, and no testimony was excluded.
Jimmy argues that the judge erred by instructing on all three prongs of malice.
There was no objection. The error did not create a substantial likelihood of a
miscarriage of justice because the instruction on deliberate premeditation was
correct, and the evidence supports a verdict of deliberate premeditation.
8. General Laws c. 278, § 33E. We have reviewed the briefs, the transcripts,
and the complete record. The defendants shot at the victim as he was lying on
the floor, begging for his life. We see no reason to reduce the degree of guilt
or order a new trial.
Judgments affirmed.
Orders denying motions for a new trial
and motions for costs affirmed.
FOOTNOTES:
[1] Five against John Evans and two against Jimmy
Evans.
[2] The convictions of the motor vehicle violations
and some of the weapons possession violations were placed on file, and are not
before the court on appeal.
[3] Neal testified that he could not recall his grand
jury testimony. His grand jury testimony was admitted through the court
reporter who recorded the grand jury testimony.
[4] There is no merit to the argument that the judge
who heard the motions for a new trial resurrected this issue for full appellate
review. She considered only whether the argument created a substantial
likelihood of a miscarriage of justice.
[5] The prosecutor was not required to accept trial
counsel's offer to stipulate that John leased the gold Lexus under the name
Anthony Wilson.
[6] Brown declined to file an affidavit but appellate
counsel for John did file an affidavit in which he states that he spoke to
Brown and his attorney. He indicates that Brown said he and John were outside
Walaikum's during the shooting. He heard gunshots, then saw people running out
and away from Walaikum's. He and John entered the Lexus. He asked John to drive
away, but John would not leave without his brother. Ronald Tinsley and Jimmy
then entered the Lexus and they all drove away. Counsel states that Brown told
him that he would have testified to these facts at John's trial if he (Brown)
had been tried first. The affidavit of counsel constitutes inadmissible hearsay
as to Brown's assertions and need not be considered.