Commonwealth v. Meas

5 N.E.3d 864, 467 Mass. 434, 2014 WL 929178, 2014 Mass. LEXIS 125
CourtMassachusetts Supreme Judicial Court
DecidedMarch 12, 2014
StatusPublished
Cited by30 cases

This text of 5 N.E.3d 864 (Commonwealth v. Meas) 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. Meas, 5 N.E.3d 864, 467 Mass. 434, 2014 WL 929178, 2014 Mass. LEXIS 125 (Mass. 2014).

Opinion

Ireland, C.J.

On December 16, 2008, a jury convicted the defendant, Jerry Meas, of murder in the first degree on a theory of deliberate premeditation and of unlawful possession of a firearm.1 Represented by new counsel on appeal, the defendant argues error in (1) the form of the murder indictment; (2) the denial of his motion to suppress identification evidence; (3) the admission at trial of surveillance videotape recordings; (4) the judge’s limitation on cross-examination of a witness on the issue of bias; (5) the judge’s decision not to discharge a juror; and (6) the judge’s instructions to the jury. We affirm the order denying the defendant’s motion to suppress and affirm his convictions. We discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E.

1. Form of indictment. Contrary to the defendant’s contention, his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution were not violated on the ground that the murder indictment did not specify any theory of [436]*436murder. Because the indictment in this case is in the statutory form prescribed by G. L. c. 277, § 79, it “encompasses all theories of murder in the first degree and is sufficient to charge murder by whatever means it may have been committed.” Commonwealth v. DePace, 442 Mass. 739, 743 (2004), cert. denied, 544 U.S. 980 (2005). The cases to which the defendant cites have no application here. The case of Blakely v. Washington, 542 U.S. 296, 304 (2004), concerns certain constitutional requirements for enhanced penalty sentencing, and Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), is similarly without force. See Commonwealth v. DePace, supra (“The Apprendi case was not concerned with the sufficiency of a grand jury indictment”). See also Commonwealth v. Morales, 453 Mass. 40, 52 (2009) (declining to overrule Commonwealth v. DePace, supra, and stating that form of indictment does not offend Apprendi).

2. Suppression of identification evidence. The defendant argues that the judge2 erred in denying his motion to suppress the results of the showup identifications made in the aftermath of the shooting. He claims that the identification procedure was “unnecessarily and unconstitutionally suggestive.” After conducting an evidentiary hearing, the judge denied the motion, concluding that there was good reason to use the showup identification procedure and that the identifications did not violate due process. We set forth the material evidence from the hearing as summarized in the judge’s findings of fact.

On June 13, 2006, at approximately 11 p.m., the victim was shot and killed while seated in the driver’s seat of his automobile, which was parked in front of a convenience store located at the comer of Chelmsford and Westford Streets in Lowell. With the victim at the time were his friend, Vicheth San, who sat in the front passenger seat, and his niece, Vannika Pen, who was in the rear passenger seat. Other witnesses to the shooting or events surrounding the shooting included Douglas Anderson, Femando Badillo, and Pedro Garcia Cardona.

Before the shooting, the victim parked his automobile in a spot in front of the store. Nearby there was a black Honda [437]*437Accord automobile in a parking spot. The Honda’s driver, who was Cambodian, and an individual seated in the rear passenger seat of that vehicle stared at the occupants of the victim’s automobile. Inside the store, Badillo observed the defendant being loud and acting tough. Badillo described the defendant as an Asian male with long dark hair worn in a ponytail. Badillo observed that the defendant was wearing a bandana, black hat, black jacket, and dark-colored khaki pants.

After the defendant left the store, he approached the victim’s automobile, speaking to the victim as he approached. The victim told the defendant to “calm down.”

Another passenger of the Honda, who was wearing a hat with a “B” on it, went to the passenger’s side of the victim’s automobile and asked San, “What up, Blood?” The defendant then raised a firearm and shot the victim. He tried to shoot the gun again, but it did not discharge and only made clicking noises. The defendant and the other individual returned to the black Honda and drove down Chelmsford Street.

Within minutes of the shooting and in response to a 911 telephone call, Lowell police officers stopped a black Honda Accord with a very similar license plate number to that which had been provided to the police. This stop occurred at the comer of Branch and School Streets, approximately four to five blocks, or one-quarter mile, from the store.

The four occupants of the Honda were ordered out of the automobile, pat frisked for weapons, and handcuffed. The officers knew the occupants as members of the “Asian Boyz” gang. In addition to the defendant, the occupants of the automobile included Phalla Nou, Yoeun Chhay, and a juvenile with the street name “Silent.” Chhay was found with a serrated knife, and a loaded gun was located on the floor of the rear passenger’s side of the Honda, where Silent had been seated. A shell casing was found on the floor of the rear driver’s side, where the defendant had been seated.

The police decided to conduct showup identification procedures at the location where the black Honda Accord had been stopped. This area was near a liquor store parking lot, and flood lights from that store, as well as street lights and lights from police cruisers on the scene, contributed to illuminating the [438]*438location. The showups were purportedly conducted in accordance with “Eyewitness Identification Procedure Guidelines” prepared by the Middlesex County district attorney’s office. There were at least six uniformed police officers in the area of the showup as well as multiple police cruisers. The four men from the black Honda were placed in a line and handcuffed behind their backs. For each of the five identification procedures that night, a “Show-Up Identification Checklist” form was used. One side of that form contained the following advisements to be given to witnesses before the presentation:

“1. You are going to be shown an individual.
“2. This may or may not be the person who committed the crime, so you should not feel compelled to make an identification.
“3. It is just as important to clear innocent people, as it is to identify possible perpetrators.
“4. Whether or not you identify someone, the police will continue to investigate.
“5. After you are done, I will not be able to provide you with any feedback or comment on the results of the process.
“6. Please do not discuss this identification procedure or the results with other witnesses in this case or with the media.
“7. Focus on the event: the place, view, lighting, your frame of mind, etc. Take as much time as you need.
“8. People may not appear exactly as they did at the time of the [ejvent, because features such as clothing and hair style may change, even in a short period of time.
“9.

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Cite This Page — Counsel Stack

Bluebook (online)
5 N.E.3d 864, 467 Mass. 434, 2014 WL 929178, 2014 Mass. LEXIS 125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-meas-mass-2014.