Commonwealth v. Murray

957 N.E.2d 1079, 461 Mass. 10, 2011 Mass. LEXIS 1003
CourtMassachusetts Supreme Judicial Court
DecidedNovember 22, 2011
StatusPublished
Cited by21 cases

This text of 957 N.E.2d 1079 (Commonwealth v. Murray) 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. Murray, 957 N.E.2d 1079, 461 Mass. 10, 2011 Mass. LEXIS 1003 (Mass. 2011).

Opinion

Cordy, J.

After his conviction in 2005 of murder in the first degree and carrying a firearm without a license, and while his appeal to this court was pending, the defendant filed a motion for a new trial and a motion for postconviction discovery relating to evidence not disclosed by the Commonwealth. We remanded the motions to the Superior Court. After separate hearings on the motions, the trial judge granted the defendant’s motion for a new [11]*11trial. The Commonwealth has now appealed. We affirm the judge’s order granting the defendant a new trial.

1. Background. The undisclosed evidence consisted of information known to the police regarding the gang activities of a group called the “KST” (Kendall Street Thugs or Team), whose members included the victim and several eyewitnesses to the homicide. This information had been summarized in an affidavit of Lieutenant Kevin Slattery of the Framingham police department. Slattery prepared the affidavit in June, 2007, more than two years after the defendant’s trial, when law enforcement authorities arrested twenty individuals associated with the KST on Federal and State drug charges. The affidavit was filed in the United States District Court for the District of Massachusetts in support of the government’s motion for pretrial detention of the KST defendants. Slattery detailed the gang activities of the KST dating back to 2001, characterizing it as a violent street gang, and recounting controlled drug purchases dating back to February, 2004. The affidavit identified the victim as a KST member, as well as three individuals who witnessed the homicide or its immediate aftermath, including one who testified at trial.

The Commonwealth opposed the motion for a new trial, contending that the Slattery affidavit, while truthful, drew its conclusions mostly from events that occurred following the defendant’s January, 2005, trial. In addition, the Commonwealth argued that the impeachment information would have been of negligible value to the defendant at trial, because the testimony of the non-KST witnesses corresponded nearly perfectly with that of the KST witnesses, and because the defendant failed to develop at trial any specific information about KST’s gang activity or motives. The judge rejected the Commonwealth’s arguments. In the judge’s view, the defendant might have used this evidence both to bolster his argument for the reduced charge of manslaughter based on the use of excessive force in self-defense, and to impeach the eyewitnesses.

The Commonwealth moved for reconsideration and to supplement the record with the Framingham police department’s “master” files on the individuals who witnessed the homicide or testified at trial. Comparing the master files to the board of [12]*12probation records of these individuals (which had been disclosed to defense counsel in pretrial discovery), the Commonwealth argued that the discrepancies between them were negligible. After review, the judge denied the Commonwealth’s motion for reconsideration. The Commonwealth’s appeal was consolidated with the defendant’s direct appeal in this court.

We conclude that the judge did not abuse her discretion or commit any other error of law in granting the defendant’s motion. We therefore affirm the allowance of the motion for a new trial.

2. The trial. We summarize the facts and testimony at trial, limiting ourselves to those facts pertinent to the present appeal.

a. The witnesses. Because one basis for granting a new trial was the potential for impeachment, we begin by cataloging the people who observed the events in question.

At least eight persons associated with the KST observed the shooting or its immediate aftermath. Anthony Campbell and Richard Jamal Waters witnessed the shooting and testified. Franklin Porter and Emmanuel Osamwonyi were present but did not testify. Dammond Bonner and Hector Perez arrived at the scene immediately after the shooting and testified. James Salvi and Diana Paul arrived immediately after the shooting but did not testify.

Three individuals not associated with the KST witnessed the homicide. Jerome Jones and Randy Lopez testified,1 while Paul Pervis did not testify. The defendant, who was not associated with the KST, did not testify, but his oral and written statements to police were introduced in evidence through the testimony of the State trooper who took them.2

Numerous law enforcement and forensic investigators testified about the crime scene and the investigation. Among these, Detective Theodore Piers of the Framingham police department and State Trooper Richard Mahoney were questioned about the KST.

[13]*13b. The homicide. At approximately 9 p.m. on October 7, 2003, the defendant shot the victim in front of 111 Kendall Street in Framingham. The defendant had known the victim for maybe a “month or two” prior to the homicide. Bonner (KST) had seen the defendant “around town” at different spots, and at times with the victim. According to both Bonner and Lopez (non-KST), there were no evident problems between the two. In his oral statement to the police, the defendant claimed that he had purchased marijuana from the victim, and that the victim was a friend.

On the afternoon of the shooting, however, the defendant and the victim exchanged heated words at the Beaver Park apartment complex in Framingham, and they began “messing around.” It was unclear to Jones (non-KST) whether the two men were serious or just joking. The defendant asked the victim if he and the KST were going to rob him. The victim did not respond, and according to Lopez (non-KST), they then started “arguing and yelling.” The defendant’s girl friend’s pit bull terrier started barking and growling. The defendant placed his hands on the front of the victim’s pants, and the victim placed his hands on the defendant’s wrists, as if to push them off. The victim left while the defendant and the others stayed behind.

At approximately 9 p.m. that evening, the defendant drove himself, Jones, Pervis, and Lopez (all non-KST) to Kendall Street. The defendant walked into the center of the street, followed by Lopez, and approached the victim. The victim and his friends were congregated in front of a house at 116 Kendall Street, where members of the KST gathered to “hang out.” Those present included Campbell, Waters, Porter, and Osamwonyi (all KST).3

Campbell (KST) heard someone say “there they are or here they come.” The victim stepped forward from the group to face the defendant. The defendant came to within four or five feet of the victim, who made a movement with his arms, but did not display any weapon.

The victim then spoke to the defendant; according to some witnesses, he challenged the defendant to fight. Jones (non-KST) testified that the victim said: “Let’s shoot the ones” or [14]*14“Let’s just have a one on one.” Jones understood this to mean that this was an invitation for a fist fight. Lopez (non-KST) testified that the victim “was talking to [the defendant] . . . . He probably was swearing, but I don’t remember. All I remember is I know he had his hands out and they . . . looked [like] they was going to fight.” Campbell (KST) testified that he could not hear what the victim said to the defendant.

According to non-KST accounts, people in the KST group behind the victim began threatening the defendant.

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Cite This Page — Counsel Stack

Bluebook (online)
957 N.E.2d 1079, 461 Mass. 10, 2011 Mass. LEXIS 1003, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-murray-mass-2011.