Commonwealth v. Bly

830 N.E.2d 1048, 444 Mass. 640, 2005 Mass. LEXIS 313
CourtMassachusetts Supreme Judicial Court
DecidedJuly 13, 2005
StatusPublished
Cited by33 cases

This text of 830 N.E.2d 1048 (Commonwealth v. Bly) 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. Bly, 830 N.E.2d 1048, 444 Mass. 640, 2005 Mass. LEXIS 313 (Mass. 2005).

Opinion

Spina, J.

The defendant was convicted of the deliberately premeditated murder of Lee Simmons on September 13, 1993, illegally carrying a firearm, and illegal possession of ammunition. He was acquitted of a charge of assaulting Keith Richards with intent to murder. On appeal he argues that he was denied effective assistance of counsel because (1) counsel failed to file a motion to exclude his prior conviction of murder and the prior murder conviction of Damien Bonilla, a key defense witness, used to impeach them pursuant to G. L. c. 233, § 21, and (2) counsel failed to object to the prosecutor’s improper questions that elicited details concerning the prior convictions. He also contends that the trial judge erred by not exercising his discretion to exclude sua sponte the prior convictions, and that the judge’s limiting instructions did not cure the prejudice. The defendant raised the same issues in a motion for a new trial, the merits of which were considered by a judge other than the trial judge. The motion for a new trial was denied, and the appeal from the denial of that motion has been consolidated with the defendant’s direct appeal. The defendant also seeks a reduction in the degree of murder, pursuant to G. L. c. 278, § 33E. We af[642]*642firm the convictions, and decline to grant relief under § 33E.1

1. Background. During the early evening of September 13, 1993, Lee Simmons and his friend, Keith Richards, were riding their bicycles along Blue Hill Avenue in the Dorchester section of Boston. They had been at the Landor Road apartment of Richards’s girl friend. Richards stopped for about fifteen minutes at his aunt’s home on Johnson Road. When he rejoined his friend, Simmons was angry and on the verge of tears because the defendant had just taken his bicycle. Simmons, weary from past encounters with the defendant, was determined to recover his bicycle. The two men returned to the house where Richards’s girl friend lived and retrieved a nine millimeter Beretta semiautomatic handgun that Richards kept under the back porch.

They walked toward the neighborhood around Lesion and Morton Streets, where they knew they could find the defendant. They found him in a group of about ten people. The defendant approached Simmons. Simmons grabbed the defendant by the collar and pointed the gun in his face. He then demanded the return of his bicycle. The group approached, but backed away at Simmons’s command. The defendant agreed to return the bicycle. Simmons released him and put the gun under his waistband.

The defendant and his friends started walking toward Morton Street, followed by Richards and Simmons. Richards, concerned that Simmons would not know how to use the gun if things went bad, asked him for it. Simmons gave him the gun. The defendant walked ahead of the group and turned toward a house at 770 Morton Street. Richards walked up a side street directly across from 770 Morton Street and stood behind a parked car. A man ran out of the house at 770 Morton Street and handed a gun to someone standing beside a van parked in front of the house. The defendant ran into the house and within seconds opened a second-floor porch window and began shooting at Simmons. The person beside the van also began firing. Richards tried to return fire, but his gun would not discharge. Other [643]*643people who were near the van ran toward Richards and threatened to “get” him, so he fled.

Simmons also fled, but he was struck by two .380 caliber projectiles. One entered the left leg just above the ankle and traveled downward. The other killed him. It penetrated the left side of his forehead, traveled downward and across the midline of the brain, perforated the lower right rear portion of the skull, and came to rest under the scalp. The downward trajectory through his body of each projectile is consistent with someone shooting from above.

Comilus Earl Pope, a friend of the defendant, lived in the attic at 770 Morton Street above the second-floor apartment of his aunt, Gail Langham, who owned the house. Langham knew the defendant because he often visited Pope at the house. At the time of the shooting Langham was in the cellar with a gas company repairman. As she ran upstairs to see what was happening, she encountered the defendant coming from the area of the second-floor porch. He had a gun in his hand. She asked him what he was doing with the gun, but he brushed her off. They argued. In June, 1997, after the defendant was indicted, he telephoned Langham and asked her to recant the testimony she had given to the grand jury. Specifically, he asked her to say that she did not see him with a gun, but testified that she had seen him with it because the police had threatened her.

Deanna Jones, Pope’s girl friend, also saw the defendant coming out of the second-floor porch just after the shooting stopped. This was the same porch from which, according to Richards, he saw the defendant shooting at Simmons. Jones ran up to the attic. She could hear the defendant and Langham arguing downstairs. Later, Pope, Damien Bonilla, and the defendant went up to the attic where the defendant admitted firing shots from the second-floor porch. He also said he took the bicycle because Simmons owed him money for drugs.

A passing motorist and a taxicab driver whose cab was struck by a projectile heard shots and saw flashes coming from 770 Morton Street, but they did not see or hear shots coming from the opposite side of the street.

Police officers arrived shortly after the shooting ended, and Langham consented to a search of her house. Police found the [644]*644defendant and Bonilla in one attic bedroom, and Pope and Jones in the other. Both rooms were “pitch black.” The .380 semiautomatic handgun used to kill Simmons was found in a crawl space in the attic, about eight feet from where the officers first saw the defendant. Two bags containing a total of fifty-six rounds of ammunition were found in a dresser in the bedroom where Pope and Jones had been sitting. One contained thirty-five .380 caliber bullets, and the other contained twenty-one rounds of nine millimeter ammunition. Two fingerprints on the slide and the grip of the .380 handgun were identified as the defendant’s. Three cartridge casings found on the ground underneath the open window of the second-floor porch had been ejected from the .380 handgun.

Police also recovered a nine millimeter semiautomatic handgun underneath a porch at 770 Morton Street and ten spent casings on Morton Street in front of Langham’s house. The ten casings had been discharged from that same nine millimeter handgun. A nine millimeter spent projectile was found in a wall of the first-floor hallway of the house. It was damaged and could not be compared to bullets fired from any other weapon for purposes of firearms identification, but its location in the hallway and its apparent path (ricocheting off some woodwork and hitting a wall) were consistent with having been fired from inside the house and inconsistent with having been fired from across the street. Neither police nor medical personnel who responded to the scene found a gun or any shell casings near Simmons’s body.

Damien Bonilla testified for the defense. On direct examination he said that he was serving a capital murder sentence in Virginia. He testified that he was with the group at the intersection of Leston and Morton Streets when Simmons demanded at gunpoint that the defendant return his bicycle. As the defendant was about to enter 770 Morton Street to retrieve the bicycle, Bonilla heard a gunshot.

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Cite This Page — Counsel Stack

Bluebook (online)
830 N.E.2d 1048, 444 Mass. 640, 2005 Mass. LEXIS 313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bly-mass-2005.