Commonwealth v. Ashley

694 N.E.2d 862, 427 Mass. 620, 1998 Mass. LEXIS 321
CourtMassachusetts Supreme Judicial Court
DecidedJune 9, 1998
StatusPublished
Cited by25 cases

This text of 694 N.E.2d 862 (Commonwealth v. Ashley) 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. Ashley, 694 N.E.2d 862, 427 Mass. 620, 1998 Mass. LEXIS 321 (Mass. 1998).

Opinion

Greaney, J.

A jury convicted the defendant of murder in the first degree on the grounds of deliberate premeditation and extreme atrocity or cruelty. Represented by new counsel on appeal, the defendant claims error in (1) the denial of his motion [621]*621to permit testimony by his expert witness on the reliability of eyewitness identifications; (2) certain evidentiary rulings pertaining to motive and to eyewitness testimony about the kind of automobile seen at the shooting; (3) remarks made by the prosecutor during his closing argument; and (4) certain jury instructions. We reject these arguments and discern no reason to exercise our authority pursuant to G. L. c. 278, § 33E, to order a new trial or reduce the jury’s verdict. Accordingly, we affirm the defendant’s conviction.

The jury were warranted in finding the following facts. At midnight on June 27, 1992, Russell Hill, Jr., shot from an automobile Joseph Baskerville and Anthony Kingsbury as the two stood on Algonquin Street in the Dorchester section of Boston. Four days later, on July 1, 1992, at approximately 5:30 p.m., Hill was in the passenger seat of an automobile driven by James Martin. As Martin drove down Gaylord Street, which is one block away from Algonquin Street, he noticed six young black men standing on the porch of a house watching them drive past. Hill recognized one of the men as Moe Black, a friend of Baskerville and Kingsbury. A black Toyota Corolla SR-5 automobile was parked in front of the house. At approximately the same time, Hill’s cousin, Charles Hill, Jr., (Charles), saw the defendant walk up Gaylord Street and turn into the yard of Hill’s former residence. The defendant was wearing “[a] pair of dark colored jeans ... a colorful shirt and a hat like a hood, like a sweatshirt drawn over his shoulder.”1

Martin and Hill proceeded onto Washington Street heading toward Codman Square. Traffic was heavy, and virtually at a standstill. As Martin’s vehicle was stopped in the traffic, a black man walked up to the passenger side, raised his arm, and fired three shots from a handgun through the window. All three shots hit Hill in the back, and one of the bullets penetrated his heart. The shooter then ran down Washington Street toward Moultrie Street (which is perpendicular to Washington Street).

Just prior to the shooting, Charles, who by then was standing in front of a Chinese restaurant, saw the defendant emerge from the passenger-side of a mid-sized black automobile. Charles had seen the defendant driving the automobile on previous occasions. The vehicle was approximately twenty yards away from [622]*622Charles and four to five car lengths behind Martin’s vehicle. The defendant had changed his shirt and was dressed completely in black. Charles saw the defendant shoot Hill, and then saw the black automobile drive down Moultrie Street. Martin also saw the automobile, recalling that it was the same one that had been parked in front of the house on Gaylord Street.

Boston police officers Anthony Platt and Harold White, who were dressed in uniform, but were operating a “low-profile cruiser,” were approximately seven to ten automobile lengths, or thirty to thirty-five yards, behind Martin’s automobile at the time of the shooting. The officers heard gunshots, and Officer Platt saw a black man, whom he later identified as the defendant, standing to the side of the traffic in a crouched position. He then saw the defendant with a gun in his hand run down Moultrie Street. The officers chased after the defendant on foot. The defendant did not respond to Officer White’s command to stop. Officer Platt saw a black late-model Toyota Corolla pull out of traffic from four to five car lengths in front of the police cruiser and proceed down Moultrie Street. The defendant got into the automobile, which then sped away.

At the time of the incident, the defendant’s girl friend, Chenna Webb, owned a black Toyota Corolla SR-5. Officer Platt testified that the numeral five was in the third position of the getaway vehicle’s registration number. Webb’s registration number was 845CJK.

On returning to Martin’s vehicle, the police officers found Hill, who had already died from his wounds, with a loaded .357 handgun and “speed loader” between his feet. This was not the gun used to shoot him, and all three bullets which hit him came from the same gun. The gun that was used to shoot Hill was not recovered. A palm print taken from Martin’s vehicle did not match the defendant’s palm print, and the age of that print could not be determined.

With respect to the identifications set forth above, the jury heard the following evidence. On November 12, 1992,. the two police officers were shown an array of eight photographs, including one of the defendant. Officer Platt was unable positively to identify anyone from the photographs. Officer White selected the defendant’s photograph but was “not sure,” and also pointed to another photograph. Martin was shown a similar array four days later during which he chose two photographs. He was seventy per cent certain of the defendant’s photograph and fifty [623]*623per cent certain of the other photograph. Martin indicated that he could identify the perpetrator if he saw him.

On March 16,1994, Martin and the two police officers viewed a lineup of eight people. The defendant was the only person in the lineup whose photograph was also in the earlier photographic arrays. Martin testified that he was ninety per cent certain in his identification of the defendant. Officer Platt testified that he identified the defendant with nearly “a hundred percent certain[ty],” and Officer White expressed no doubt in his identification of the defendant.2

1. An important issue at trial was the admissibility of expert testimony by a psychologist concerning the capacity of the four eyewitnesses (Officers Platt and White, and Martin and Charles) to make reliable identifications. Relying primarily on our decision in Commonwealth v. Santoli, 424 Mass. 837, 841-844 (1997), the defendant argues that the judge erred in excluding his offer of the psychologist’s opinions. We disagree.

In a series of cases in recent years, we have reaffirmed the principle that the admissibility of expert testimony regarding the capacity of eyewitnesses to make identifications is within the trial judge’s discretion. See Commonwealth v. DiBenedetto, ante 414, 420 (1998); Commonwealth v. Santoli, supra; Commonwealth v. Walker, 421 Mass. 90, 96 (1995); Commonwealth v. Hyatt, 419 Mass. 815, 818 (1995). While we adhered to this position in Santoli, we also “provide[d] comments that may assist judges in the exercise of their discretion in this area.” Id. at 838. The trial in this case occurred more than one year before our decision in Santoli, and thus the judge did not have the benefit of those remarks.

At the conclusion of a voir dire of the defendant’s proffered expert, the judge stated that he had discretion to admit or exclude the testimony pursuant to Commonwealth v. Hyatt, supra, and we conclude that he did not abuse his discretion in excluding it, even if we take into consideration the comments [624]*624we made in Santoli. Although the Commonwealth’s case principally relied on the identification testimony of four eyewitnesses, other evidence was presented linking the defendant to the murder.

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Bluebook (online)
694 N.E.2d 862, 427 Mass. 620, 1998 Mass. LEXIS 321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ashley-mass-1998.