Commonwealth v. Almeida

897 N.E.2d 14, 452 Mass. 601, 2008 Mass. LEXIS 786
CourtMassachusetts Supreme Judicial Court
DecidedNovember 21, 2008
StatusPublished
Cited by15 cases

This text of 897 N.E.2d 14 (Commonwealth v. Almeida) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Almeida, 897 N.E.2d 14, 452 Mass. 601, 2008 Mass. LEXIS 786 (Mass. 2008).

Opinion

Cowin, J.

A Superior Court jury convicted the defendant, Jason J. Almeida, of murder in the first degree for the shooting of Joseph Canto in the rear parking lot of a lounge in New Bedford on October 4, 2000.1 The defendant appeals from his conviction and from the denial of his motion for a new trial. Represented by new counsel on appeal, he claims he was denied the right to confront and examine a spectator whom the judge believed was attempting to coach a witness; he was denied his right of cross-examination because of the lack of memory of a [603]*603key identification witness; the prosecutor impermissibly vouched for the credibility of two witnesses who had been charged with perjury in connection with this case; and he was denied a fair trial by reason of the Commonwealth’s late disclosure of a police chemist’s diagrams of blood spatter at the crime scene. The defendant asserts additionally that a new trial should have been granted because he was denied the effective assistance of counsel in the following respects: counsel took no steps to remedy the effect of a spectator coaching a witness; counsel did not move to strike the testimony of a witness with a poor memory; counsel failed to obtain a blood spatter expert; counsel did not procure the testimony of an available witness to challenge the testimony of a key identification witness; and counsel failed to file a motion for a reduction of the verdict pursuant to Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979). Finally, the defendant requests that we exercise our extraordinary power pursuant to G. L. c. 278, § 33E, to order a new trial or direct the entry of a verdict of a lesser degree of guilt. We affirm the convictions and the order denying the defendant’s motion for a new trial, and decline to exercise our power under G. L. c. 278, § 33E.2

Facts and background. We recite the facts the jury could have found, reserving further details for discussion of the specific issues raised. Responding police officers found the victim’s body lying between a car and a truck in the rear parking lot of a lounge in New Bedford at 1:45 a.m. on October 14, 2000. The cause of death was a single bullet to the skull from a weapon that had been pressed tightly against the victim’s left earlobe when the shot was fired. Two bullets were retrieved from the back of a nearby parked vehicle and a third was recovered from the wall of a building across the street.

No physical evidence connected the defendant to the shooting, but three eyewitnesses testified to relevant events. The testimony of each of these witnesses, however, was not consistent with that of the others or with their prior testimony. Moreover, two of the eyewitnesses, David Grace and John Todman, testified while [604]*604under indictment for perjury. Each had an agreement with the Commonwealth that the perjury charge would be dismissed in return for truthful testimony. The third witness, Olivia Pires Lara, was awaiting sentencing on drug charges in Federal District Court and had a cooperation agreement with Federal authorities relating to the Federal charges (although not to the present case). Each of these witnesses was “scared,” but the cause of their fear was not identified. Because most of the defendant’s appellate issues arise from the testimony of these witnesses, we summarize their testimony in some detail.

David Grace was twenty-one years old at the time of the shooting and had known both the defendant and Russell Andrews (the codefendant) for several years. He saw the two of them in the lounge during the evening of October 13, 2000. When last call was announced (now the morning of October 14), he “saw everybody leaving from [a] pool table,” the defendant and Andrews among them. Grace left the lounge as well. In the rear parking lot, he approached a group of men which included Andrews and the defendant. When Grace was about twenty feet from the group, he “saw a kid walking down the street . . . heading towards where they was at.” Grace heard gunshots and saw the “kid” run past him. Grace ran in back of the “kid,” seeing gun flashes behind him and to the side. He also saw the defendant with a gun in his hand, shooting. Grace heard a total of six or seven shots and finally saw the “kid” fall between a truck and a car.

John Todman was twenty-one years old at the time of trial3 and had known Andrews most of his life. He had known the defendant “from when [he] was younger.”4 Todman came to the lounge on October 13, with Andrews and two other friends in a Ford Taurus automobile driven by Andrews. They parked on a side street near the lounge, and the four of them walked into the lounge together. Todman saw the defendant at the lounge. After last call was announced, Todman left through the back [605]*605door, following Andrews and two other friends. While he was in the parking lot in a group of eight to twelve young people with the defendant standing about twenty-five or thirty feet from him, Todman saw “some guy [the victim] . . . walk out . . . from the comer” of the street toward the defendant. When the victim was about ten feet from the defendant, the defendant backed away. The victim walked “closer and closer.” No one else was standing near either of them, and Todman heard no words exchanged, but he saw the defendant reach for his waist and pull out a gun. He saw a gun “in the air” with “fire” “coming ... up in the air” from the defendant’s hand, and Todman ducked behind a car. He heard a total of five or six shots.

Olivia Pires Lara was twenty-six at the time of trial, was David Grace’s cousin, and knew both Andrews and the defendant. She also knew the victim, who “used to hang with [her] brother sometimes.” She too was at the lounge on the night of October 13. At some point that night, she looked out the rear door and saw the defendant, Andrews, and “quite a few” others arriving in a “big car” (a Cadillac).5 6 The men all entered the lounge, and at a later time, she spoke to Andrews there. As she observed an argument between the defendant, Andrews, and the victim on the dance floor, a “bouncer” told them, “Take that outside.” The victim left through the rear door, with the rest of the group following him.6 Lara looked out the door and saw the group gathered around the victim, arguing with him. Shortly thereafter, Lara went to the front door and then heard a shot. She ran down the street to the back of the lounge. There she saw the victim, the defendant, Andrews, and others standing “[b]etween cars.” The victim and the defendant were standing within one foot of each other, arguing. Andrews was also standing at the victim’s side. She heard yelling and swearing and saw the defendant run to the Cadillac, take something from it, and return. When Andrews pointed a gun at the victim’s head, the defendant said, “Give me that,” grabbed the gun from Andrews’s hand, and [606]*606shot the victim in the head behind the right ear. The gun was not visible in the darkness, but Lara heard the shot and saw the victim fall to the ground.

Discussion. 1. Denial of right to confront and examine a spectator. The defendant maintains that he was denied the right to confront and examine Kiesha Tayree-Lee Acevedo, a spectator. During the cross-examination of Todman, the judge abruptly excused the jury.

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Cite This Page — Counsel Stack

Bluebook (online)
897 N.E.2d 14, 452 Mass. 601, 2008 Mass. LEXIS 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-almeida-mass-2008.