Commonwealth v. Housen

940 N.E.2d 437, 458 Mass. 702, 2011 Mass. LEXIS 9
CourtMassachusetts Supreme Judicial Court
DecidedJanuary 20, 2011
StatusPublished
Cited by20 cases

This text of 940 N.E.2d 437 (Commonwealth v. Housen) 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. Housen, 940 N.E.2d 437, 458 Mass. 702, 2011 Mass. LEXIS 9 (Mass. 2011).

Opinion

Spina, J.

The defendant was convicted of murder in the first degree on a theory of joint venture felony-murder and of the predicate felony, attempted armed robbery. The latter conviction was placed on file and is not before us on appeal. The defendant argues that he is entitled to a new trial, because (1) there was insufficient evidence of principal liability and the jury did not specify whether they found the defendant guilty as a principal or as a joint venturer; (2) the Commonwealth violated the defendant’s due process rights by arguing contradictory theories of principal liability at the separate trials of the defendant and his codefendant; (3) a medical examiner and a firearms expert testified as to hearsay contained in an autopsy report and diagrams prepared by a nontestifying medical examiner, and they gave opinions based on those materials as well as autopsy photographs taken by the nontestifying medical examiner, in violation of the defendant’s right to confront and cross-examine witnesses under the Sixth Amendment to the United States Constitution; (4) trial counsel was ineffective for stipulating to the admission of the autopsy photographs; and (5) the judge incorrectly instructed that attempted armed robbery required the Commonwealth to prove general intent rather than specific intent to rob. We affirm the conviction of murder and decline to exercise our power under G. L. c. 278, § 33E.

1. Background. The jury could have found the following facts. We reserve other details for discussion of particular issues.

[704]*704The victim made a living selling marijuana from his third-floor apartment at 180-182 Green Street in Brockton, where he lived with his girl friend. The front door to the apartment building was always kept locked, and it had no electronic unlocking system. The victim’s customers would ring his doorbell outside the front door to the apartment building. The victim either would go down to the front door and let them in or would go to the third-floor porch and ask who it was. If he knew the person he would throw down the key to the front door. The victim owned a .40 caliber semiautomatic handgun that he kept loaded at all times with two bullets. The gun was kept inside the middle cushion of the couch in his living room.

On the night of April 18,2001, shortly before midnight, Joaquina Costa and his girl friend, who lived in a second-floor apartment at 180-182 Green Street, were sitting and talking in his car outside the apartment building. A maroon Toyota Canary automobile pulled up and parked in front of them. Three African-American men wearing hooded jackets got out of the Toyota and approached the apartment building. Two men entered the building. The third remained outside and rang the doorbell. He eventually entered.

The victim’s girl friend, who was in bed by herself, heard people entering their apartment. One voice, which she recognized as that of Damon Cannon, said, “I don’t know, an ounce.” She previously had seen Cannon, who lived at 102 Green Street, at the apartment about seven or eight times buying marijuana. As she was getting out of bed she heard a deeper, louder voice say, “Run him,” or “Run it,” which she understood to mean the victim was being robbed. The defendant’s voice is deeper and lower than Cannon’s voice, which is “a little high pitched.”

The victim’s girl friend then heard three gunshots in rapid succession, followed by a fourth shot after a brief pause. As she approached the living room, she saw an African-American man run out the living room door into the common hallway. Damon Cannon was standing in front of the fish tank in the living room. He “looked shocked, surprised, [and] scared.” He turned and ran out the door. She did not notice if he had a weapon, but he did not appear to have anything in his hands or tucked under his waistband.

The victim was lying on his back on the living room floor near [705]*705the couch. He was bleeding and his eyes were twitching. His girl friend telephoned 911. The victim’s gun was on the floor near his left hand. It had two live rounds of ammunition. His wallet was on the floor near the gun. It was empty, but he had spent all his cash on dinner with his girl friend earlier that evening.

A neighbor who lived in the other third-floor apartment heard the gunshots, followed by two voices saying, “Let’s go, let’s go.” He then heard, in sequence, people running down the stairs and “a car screeching off.” A second-floor tenant heard two people running down the stairs just after the gunshots. She saw the driver of the Toyota help one person into the back seat of the car. A third person was already in the car. Joaquim Costa was still sitting in his car with his girl friend when he saw the same three men come out of the apartment building, get into the Toyota, and speed off. He did not specify whether the three men emerged from the building together. A woman who lived across the street heard the four gunshots and then saw two men run out of the apartment building and get into the Toyota, which then sped away.

The victim sustained two gunshot wounds to the back of his neck, and one to the back of his right wrist. Death was caused by a combination of (1) blood from the two neck wounds entering his airways, making it difficult for him to breathe, (2) loss of blood from the two neck wounds, and (3) brain damage resulting from shock waves produced by the bullet that entered the middle of the neck and traveled toward the right cheek, where a portion of the bullet exited the body.

Four projectiles were recovered. One was on the rug behind the couch, and a second went through the rug and into the floor. A third was recovered from the victim’s clothing at a hospital. A portion of a fourth was recovered from the victim’s right cheek at autopsy by a medical examiner. Two small lead fragments from one of the projectiles also were removed at autopsy from the victim’s right wrist. A firearms expert opined that all four projectiles were fired from a single .38 caliber class weapon, which was not the victim’s gun.

A medical examiner who did not perform the autopsy and the firearms expert opined that the presence of soot inside one of the neck wounds meant the gun that fired the bullet causing that [706]*706wound was no more than six inches from the victim’s neck at the time of discharge. The two experts differed as to the distance between the second neck wound and the end of the gun barrel at the time of discharge. Based on the pattern of stippling, the medical examiner opined that distance to be four to eight inches, while the firearms expert believed the distance to be one to two feet. Both experts testified that the stippling pattern around the victim’s wrist wound was produced by a gun that was fired within a distance of two feet.

Deoxyribonucleic acid (DNA) testing of blood on a coffee cup in the victim’s apartment, blood on the wall by the living room door, blood on the walls of the interior common stairway leading to the front door of the building, and blood on the sidewalk leading up to the curb indicated that the defendant was the source of the blood. The defendant, using the name Corey Davis, sought medical attention the next day for lacerations on his left ring finger and thumb.

The defendant testified that he accompanied Cannon and Leroy Drane to the victim’s apartment to purchase marijuana. He said the victim was standing in front of him when his facial expression changed. The victim reached into the couch and took out a gun.

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Cite This Page — Counsel Stack

Bluebook (online)
940 N.E.2d 437, 458 Mass. 702, 2011 Mass. LEXIS 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-housen-mass-2011.