NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-944
COMMONWEALTH
vs.
ANDRE HENDERSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his conviction of murder in the
second degree, as a lesser included offense of murder in the
first degree, and from the denial of his motion for a new trial. 1
He argues that his trial counsel was ineffective for failing to
request a jury instruction on voluntary manslaughter based on
reasonable provocation and for failing to introduce certain
evidence, that the prosecutor improperly elicited testimony
commenting on the defendant's postarrest silence, and that the
1The defendant was also convicted of carrying a firearm without a license and carrying a loaded firearm without a license, but raises no argument on appeal regarding those convictions. trial judge erred in admitting a speculative statement as an
excited utterance. We affirm.
Background. 1. The Commonwealth's case. The defendant
and the victim had known each other for many years and were
codefendants in a criminal case in 2008. The victim believed
that the defendant had "snitched" on him in connection with that
case.
On June 23, 2017, the victim was released from prison on a
sentence he was serving in a different case. Three days later,
the victim and his cousin, Shaquille Buckmire-James, drove to a
restaurant in the Mattapan section of Boston. As they got out
of their car, the victim saw the defendant standing on the porch
of a house across the street 2 and said to Buckmire-James,
"[T]hat's the guy that snitched on me." The defendant was
making hand motions and yelling to the victim, but Buckmire-
James could not hear what he was saying. The victim yelled
back, "I'm not worried about you," and "[I]f I wanted you dead,
you would be dead."
After this exchange Buckmire-James saw the defendant go
into the house and come back out, tuck in the back of his shirt,
and cross the street. The defendant and the victim proceeded to
have a "heated" conversation in front of the restaurant. An
2 The defendant's girlfriend lived in the first-floor unit of the house.
2 eyewitness, Andrew Marshall, passed by them while walking into
the restaurant and overheard the "big guy . . . telling the
little guy, he was a snitch or something" in an angry tone of
voice. 3 The "little guy" appeared to be afraid, and Marshall
heard him say twice that he "didn't want a problem."
After several minutes of conversation, the defendant shot
the victim four times: in the left side of his cheek, in the
left side of his chest, and twice in the back. 4 A passing
motorist heard the shots and then saw a man "not running but
. . . trotting away" from the restaurant. A second motorist
also heard the shots, turned and looked in that direction, and
saw a man with a gun in his hand. Through her rearview mirror,
she saw the shooter running away with his hands swinging in the
air, making a "lassoing" motion with his finger.
A warrant issued for the defendant's arrest. On August 15,
2017, the defendant was located in Alabama and arrested on the
warrant.
2. The defendant's case. The defense theory at trial was
self-defense. In support, the defendant testified as follows.
3 There was evidence that the defendant was five feet, nine inches tall, and weighed about 175 pounds, whereas the victim was six feet, two inches tall, and weighed 313 pounds.
4 The medical examiner testified that there may have been a fifth shot, which created an abrasion on the back of the victim's left shoulder.
3 The defendant and the victim met in 2005 or 2006 and were
once friends. Their relationship soured as a result of the 2008
case. Although the defendant did not give any evidence against
his codefendants, rumors began circulating in the neighborhood
that he was a "snitch."
Because of the rumors, the defendant became the target of
violence. While in jail in 2010, the defendant got into a fight
with another inmate who accused him of being a "rat." From 2010
to 2016, the defendant was "jumped" four times by people who
believed he was a "snitch." The defendant also had a few
arguments with the victim about the situation, and the victim
once started to pull a weapon before others intervened. The
defendant knew that the victim had access to firearms and had
seen the victim with a firearm before. To protect himself, the
defendant acquired a pistol in 2010.
In June 2017 the defendant was feeling "[p]aranoid" because
he had learned that the victim was being released from prison
and was asking about the defendant's whereabouts. Two days
before the murder, the defendant heard that the victim was
"cruising around looking for [him]." Worried about being
spotted, the defendant did not leave the house the next day.
The day of the murder, the defendant drank over a pint of
rum to calm his nerves and went out on the porch to smoke a
cigarette. A car pulled up across the street, and the defendant
4 saw the victim get out. As the defendant turned to go back in
the house, the victim called out to him and waved at him "to
come here, come here." When the defendant replied, "[N]o you
come here, you come here," the victim said, "[I]f I wanted you
dead, you'd be dead." The defendant took this to mean that
maybe they could "squash this situation" and, with his gun in
his back pocket, crossed the street to talk to the victim.
The defendant extended his hand to shake the victim's hand,
but the victim refused it. The defendant told the victim that
he did not want any problems and was not a "snitch" and asked
that the victim "call his goons off [the defendant's]
girlfriend's house," explaining that there were "kids in that
house." The victim was not interested in resolving the
situation and instead "gave [the defendant] the run down on
seeing [him] and [his] girl[friend] walking up and down the
street with [their] daughter."
When the defendant again asked the victim to stay away from
the house, the victim said, "You're a rat and the next time you
see me, I'm kicking your door and hit you and yours." The
defendant took this to mean that the victim was going to try to
kill him "and whoever got in [the victim's] way." By this point
"half [the defendant's] heart was in [his] stomach, the other
half of [his] heart was in [his] throat." The defendant told
the victim that "he can't do that," to which the victim replied
5 that "he can do what he wanted" and "nobody can stop him." At
this moment the defendant "checked out," which he described as
his "body [going] to autopilot."
While this conversation was happening, the defendant saw
Buckmire-James walking back and forth and "mean mugging" him.
The victim was also "moving around pretty aggressive" -- "hand
gesturing" and "puffing up his chest" -- and was making comments
under his breath to Buckmire-James. Just prior to firing the
shots, the defendant saw the victim put his phone in his pocket
and then "attempt[] to lift his shirt with his left hand" while
"reach[ing] with his right." Because the defendant's "body was
on autopilot," he took his gun from his back pocket and fired.
The defendant ran from the scene, believing that, even if
the victim did not have a gun, Buckmire-James did. As he was
running, he saw a group of people gathered a couple streets
over. Believing that "the situation [had] escalated from
dangerous to critical," the defendant waved his arms and yelled
at the group to go in the house.
Discussion. 1. Ineffective assistance of counsel. The
defendant raised his claims of ineffective assistance through a
motion for a new trial, accompanied by an affidavit from trial
defense counsel. A judge other than the trial judge, who had
since retired, held an evidentiary hearing on the motion, at
which defense counsel and three other witnesses testified. The
6 motion judge then issued a detailed decision denying each of the
defendant's claims. We review that decision for an abuse of
discretion, deferring to the motion judge's assessment of the
credibility of the witnesses at the evidentiary hearing. See
Commonwealth v. Kirkland, 491 Mass. 339, 352 (2023). We are in
as good a position as the motion judge to evaluate the trial
record. See id.
a. Failure to request instruction on voluntary
manslaughter based on reasonable provocation. The motion judge
found that the omission of an instruction on reasonable
provocation was the result of a strategic choice by defense
counsel. Although defense counsel averred in his affidavit that
he "did not have a strategic reason for not requesting [the]
instruction," the motion judge's finding to the contrary is
supported by defense counsel's testimony at the evidentiary
hearing. In particular, defense counsel testified that he
reviewed the instruction prior to the charge conference and,
although "it was a tough call," decided not to ask for it
because he had concerns about the language, "mere words alone
are not sufficient to use deadly force." Defense counsel
further explained that he knew he "was getting second degree[,]
7 most of the manslaughter instruction, [and] self-defense"; 5 he
considered the fact that the victim "didn't have a weapon and
there was no sudden combat prior to the words that he uttered to
[the defendant] before the shooting"; and so, after conducting
"a balancing test," he decided that the "mere words" language in
the reasonable provocation instruction "might have hurt a little
bit more . . . than helped." This testimony shows that defense
counsel made a strategic decision not to request the
instruction, as the motion judge found.
Our resolution of the defendant's claim thus depends on
whether he has demonstrated that defense counsel's strategic
decision was "'manifestly unreasonable' when made" and deprived
the defendant of an available, substantial ground of defense.
Commonwealth v. Acevedo, 446 Mass. 435, 446 (2006), quoting
Commonwealth v. Adams, 374 Mass. 722, 728 (1978).
"[R]easonableness does not demand perfection," nor is it
"informed by what hindsight may reveal as a superior or better
strategy." Commonwealth v. Kolenovic, 471 Mass. 664, 674
(2015). Rather, "[o]nly 'strategy and tactics which lawyers of
ordinary training and skill in the criminal law would not
consider competent' are manifestly unreasonable." Commonwealth
5 The trial judge instructed the jury on murder in the second degree, voluntary manslaughter based on excessive use of force in self-defense, and self-defense.
8 v. Pillai, 445 Mass. 175, 186-187 (2005), quoting Commonwealth
v. Levia, 385 Mass. 345, 353 (1982).
To establish a deprivation of a substantial ground of
defense, the defendant must show that he would have been
entitled to an instruction on reasonable provocation had defense
counsel asked for one. See Acevedo, 446 Mass. at 442.
"Reasonable provocation is provocation that 'would have been
likely to produce in an ordinary person such a state of passion,
anger, fear, fright, or nervous excitement as would eclipse his
capacity for reflection or restraint.'" Id. at 443, quoting
Commonwealth v. Walden, 380 Mass. 724, 728 (1980). Although
reasonable provocation and excessive use of force in self-
defense are "closely related" theories of voluntary
manslaughter, they "are also distinct." Commonwealth v. Glover,
459 Mass. 836, 841, 842 (2011). A defendant is therefore
"entitled to jury instructions on voluntary manslaughter based
on both theories where the evidence supports them." Id.
Here, we need not decide whether the evidence supported an
instruction on reasonable provocation because, assuming that it
did, defense counsel's decision to forgo the instruction was not
manifestly unreasonable. We view Glover as controlling on the
issue. There, as in this case, defense counsel pursued theories
of self-defense and voluntary manslaughter based on excessive
use of force in self-defense, while declining an instruction on
9 voluntary manslaughter based on reasonable provocation. See
Glover, 459 Mass. at 840, 844. The court held that, while a
reasonable attorney might have chosen to request an instruction
on reasonable provocation (as it would not have been
inconsistent with the theories that defense counsel did pursue),
defense counsel's decision was nonetheless not manifestly
unreasonable for three reasons: (1) because the defendant would
have been acquitted had the jury credited his claim of self-
defense, it was "reasonable to focus the jury on that theory
rather than reasonable provocation, which at best could yield a
conviction of voluntary manslaughter"; (2) it was not manifestly
unreasonable for defense counsel to conclude that arguing
reasonable provocation in the alternative "would have diminished
the force of his claim of self-defense"; 6 and (3) the evidence of
excessive use of force in self-defense was stronger than the
evidence of reasonable provocation. Id. at 844.
Similar reasoning applies in this case. Here too, it was
reasonable for defense counsel to focus the jury on a theory of
self-defense because a successful claim of self-defense would
have resulted in an acquittal. It was also not manifestly
6 Defense counsel had initially requested that the trial judge give a reasonable provocation instruction but withdrew his request the next day, explaining that it could "be counter productive to [his] argument that the defendant acted in self- defense." Glover, 459 Mass. at 840.
10 unreasonable for defense counsel to conclude that the "mere
words" language in the reasonable provocation instruction might
have distracted the jury from the claim of self-defense. This
is especially so where the defendant's case relied heavily on
the alleged threats made by the victim and, as defense counsel
noted at the evidentiary hearing, the victim was unarmed and
there was no "sudden combat" leading up to the shooting.
Finally, although the evidence of excessive use of force in
self-defense was not necessarily stronger than the evidence of
reasonable provocation, the evidence of both theories was
meager. The jury could have viewed the defendant's testimony
that he fired the shots because his "body was on autopilot" as
inconsistent with a theory that he acted in the heat of passion.
See Glover, 459 Mass. at 842 ("a defendant's cool calculation in
the face of danger may defeat a theory of reasonable provocation
but may still permit a theory of excessive use of force in self-
defense"). For these reasons the motion judge properly
concluded that it was not manifestly unreasonable for defense
counsel to forgo an instruction on voluntary manslaughter based
on reasonable provocation.
b. Failure to offer evidence. The defendant contends that
defense counsel was also ineffective because he failed to offer
various pieces of favorable evidence. The motion judge rejected
each of the defendant's claims on the ground that the omissions
11 did not deprive the defendant of a substantial ground of
defense. We discern no abuse of discretion.
The defendant first challenges defense counsel's cross-
examination of Marshall, arguing that he should have elicited
the following additional statements: that Marshall observed
Buckmire-James walking back and forth from the restaurant,
saying "he's gonna get him" and "he's about to get him"; and
that Marshall overheard the victim say to the defendant, "[Y]ou
know what it is, you are a snitch, you know what is supposed to
happen to you." 7 But these statements would have been cumulative
of the testimony that Marshall did give, which was already
favorable to the defense. Failing to offer cumulative evidence
is not ineffective assistance of counsel. See Commonwealth v.
Britt, 465 Mass. 87, 94 (2013).
The defendant next argues that defense counsel should have
elicited from Boston Police Detectives Melvin Ruiz and Carolyn
Sygiel that there was evidence that the defendant had in fact
"snitched" on the victim in connection with the 2008 case. This
would not have been significant, however. What was important,
and what was uncontroverted at trial, was that the victim
believed that the defendant had "snitched" on him. Moreover,
the testimony would have been harmful to the defense because it
7 Marshall made these statements to the police and before the grand jury.
12 would have contradicted the defendant's own testimony that he
was "not a snitch." Defense counsel was therefore not
ineffective for failing to elicit this evidence. See
Commonwealth v. Saladin, 73 Mass. App. Ct. 416, 421 (2008).
Nor was defense counsel ineffective for failing to elicit
testimony from a neighbor that she saw the victim emerge from
behind the defendant's girlfriend's house a few nights before
the murder. The neighbor testified at the evidentiary hearing
that she did not have any conversation with the defendant about
what she saw. Thus, this evidence would not have been relevant
to the defendant's state of mind. As the defendant articulates
no other reason why the evidence would have been relevant, he
has failed to show that defense counsel was ineffective. See
Saladin, 73 Mass. App. Ct. at 421.
Finally, the defendant contends that defense counsel should
have offered evidence of the victim's 2005 and 2011 firearms
convictions and called the defendant's probation officer and
cousin to testify that the defendant told them he was afraid in
the days leading up to the victim's release from prison. The
defendant claims that all of this evidence would have been
relevant to his state of mind. But as defense counsel testified
at the evidentiary hearing, he decided not to call the probation
officer and cousin as witnesses because he believed that their
testimony "would have been a little bit cumulative" of the other
13 state-of-mind evidence, including the defendant's anticipated
testimony about "his first-hand fear." This did not constitute
ineffective assistance. See Britt, 465 Mass. at 94. With
regard to the victim's firearms convictions, defense counsel's
affidavit does not address that issue, nor was he asked about it
at the evidentiary hearing. As a result, we do not know whether
he made a tactical choice not to offer the evidence, which would
also have been largely cumulative of the other state-of-mind
evidence. The defendant has thus failed to demonstrate
ineffective assistance on this basis.
2. Arguments on direct appeal. a. Testimony on
postarrest silence. After the defendant was arrested in
Alabama, Detectives Ruiz and Sygiel traveled to Alabama and met
with the defendant in jail. During that meeting the defendant
told the detectives that they should look into his 2008 case and
that "there was more to the story." At trial, in response to
questions from the prosecutor, each detective testified that
they told the defendant they would investigate any information
he provided either directly or through his attorney. 8 The
8 Specifically, Ruiz gave an affirmative response to the question -- "[D]id you . . . inform [the defendant] that you would look into any information that he wished to provide either directly or through an attorney?" -- and Sygiel testified that she told the defendant that "this being such a serious charge, that if he had any information to investigate, anything that we don't know, . . . if he could provide some information to his attorney that would be fine and we would look into everything."
14 prosecutor also asked the defendant on cross-examination to
confirm that the only information he gave the detectives was
that they should look into the 2008 case, despite their giving
him "the opportunity, if there was anything [he] wanted to pass
alon[g] to do that." The defendant responded affirmatively.
The defendant argues that this testimony was improper
because it constituted comment on his postarrest silence,
entitling him to a new trial. We are unpersuaded. It is of
course true that evidence of a defendant's postarrest silence
"cannot be used for the substantive purpose of permitting an
inference of guilt" or "for the purpose of impeaching an
exculpatory story." Commonwealth v. Mahdi, 388 Mass. 679, 694
(1983). But in some situations, "evidence of silence is
properly admitted because it is not 'used against' the accused."
Commonwealth v. Waite, 422 Mass. 792, 798 (1996). For instance,
evidence of silence can be used to "explain[] why a police
interview of the defendant abruptly ended and the jury would be
confused without the explanation," to "rebut[] the defendant's
suggestion at trial that some impropriety on the part of the
police prevented him from completing his statement to them," or
to "rebut[] a claim by the defendant that he had given the
police at the time of his arrest the same exculpatory
explanation as he was presenting to the jury at trial."
Commonwealth v. Letkowski, 469 Mass. 603, 611-612 (2014).
15 Here, the challenged testimony, viewed in context, did not
constitute "use of the defendant's silence against him." Waite,
422 Mass. at 798. Rather, the testimony served to explain the
course of the police investigation, in light of the defendant's
comment to the detectives that "there was more to the story."
Even assuming error, moreover, we conclude that it was harmless
beyond a reasonable doubt. 9 Although the defendant claims he was
prejudiced because the testimony suggested to the jury that the
police had correctly charged him with the murder, we see no
prejudice in this respect because the defendant did not dispute
that he was the person who shot the victim. We also see no
support for the defendant's assertion that the prosecutor sought
to convey to the jury that the defendant's silence was a reason
not to credit his testimony. Furthermore, the trial judge gave
the following limiting instruction during Ruiz's testimony:
"[O]f course, no person in custody is obligated in any way under
our constitution here in Massachusetts or the U.S. Constitution,
to say anything to the police. So please understand [that the
defendant] was under no obligation to say anything to the police
at this time." We conclude that any error was harmless in these
9 The parties agree that the objection was preserved and that our standard of review is therefore harmless beyond a reasonable doubt. We will assume, without deciding, that this is correct.
16 circumstances. See Commonwealth v. Peixoto, 430 Mass. 654, 660-
661 (2000).
b. Excited utterance. Over the defendant's objection, an
officer testified that Buckmire-James told him in the aftermath
of the shooting that the person he believed to be the shooter
was standing on the porch and "[a]t one point . . . went inside
the house to grab a firearm." The trial judge admitted the
statement under the excited utterance exception to the hearsay
rule. In response to the defendant's assertion that the
statement was speculative because Buckmire-James did not
actually see the person with a weapon, the judge stated that
"that goes to the weight that the jury gives to Mr. Buckmire-
James'[s] statement as to, whether or not, he came out with a
gun."
On appeal the defendant does not challenge the judge's
finding that Buckmire-James's statement qualified as an excited
utterance, but argues that the judge should still have excluded
the statement as speculative. "As with any other witness," a
declarant making a statement under the influence of an exciting
event "must have personal knowledge of the event in question,
and must be competent" for the statement to be admissible.
Commonwealth v. King, 436 Mass. 252, 255 (2002). See
Commonwealth v. Crawford, 417 Mass. 358, 363 (1994), S.C., 430
Mass. 683 (2000) ("when an extrajudicial statement is offered in
17 court for its truth, the proponent of the statement may be
required to establish that the declarant had personal knowledge
of the information contained in the statement"); Mass. G. Evid.
§ 602 note (2024) ("The personal-knowledge requirement also
applies to hearsay declarants"). Here, the Commonwealth
conceded to the judge that Buckmire-James did not see the person
on the porch come out of the house with a weapon. We thus agree
with the defendant that the portion of the statement describing
why the person went into the house should have been excluded for
lack of personal knowledge. Cf. Crawford, supra at 363-364
(where it could "be inferred from [the declarant's] statement
. . . that she was present in the apartment during the shooting,
and at least overheard the event, even if she did not see it,"
no error in admitting statement as excited utterance).
The admission of the statement did not cause the defendant
any prejudice, however. Buckmire-James testified at trial and
was available for cross-examination about the statement. That
proved unnecessary, however, because Buckmire-James testified
during direct examination that he never saw the person on the
porch with a weapon. In light of this testimony, we can say
with fair assurance that the error did not influence the jury.
See Commonwealth v. Canty, 466 Mass. 535, 544-545 (2013).
Judgments affirmed.
18 Order denying motion for new trial affirmed.
By the Court (Shin, Ditkoff & Brennan, JJ. 10),
Clerk
Entered: October 21, 2024.
10 The panelists are listed in order of seniority.