Commonwealth v. Webb

8 N.E.3d 270, 468 Mass. 26, 2014 WL 1663159, 2014 Mass. LEXIS 216
CourtMassachusetts Supreme Judicial Court
DecidedApril 29, 2014
StatusPublished
Cited by7 cases

This text of 8 N.E.3d 270 (Commonwealth v. Webb) 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. Webb, 8 N.E.3d 270, 468 Mass. 26, 2014 WL 1663159, 2014 Mass. LEXIS 216 (Mass. 2014).

Opinion

Ireland, C.J.

On May 23, 2012, a jury convicted the defendant, Derrel C. Webb, of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty, and of unlawful possession of a firearm. Represented by new counsel on appeal, the defendant argues that a substantial likelihood of a miscarriage of justice arose both from the manner in which the judge admitted witness testimony given pursuant to grants of immunity and plea agreements, and from improper vouching by the prosecutor during her closing argument. We affirm the defendant’s convictions and discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E.

1. Background. Based on the Commonwealth’s evidence, the jury could have found the following facts. On July 28, 2008, at approximately 11:15 p.m., the victim and his older brother, Anthony, returned home to their apartment in Brockton. The boys went upstairs to the second floor. Shortly thereafter, their mother heard some “commotion” and ran upstairs. Anthony screamed that the victim had been shot. The victim’s mother found the victim lying on the floor. There was blood on the back of his head, and he was making gurgling sounds. She started cardiopulmonary resuscitation and told Anthony to telephone 911.

Emergency medical technicians (EMTs) arrived and transported the victim to a nearby hospital. From there, he was transported by flight to a hospital in Boston where soon thereafter, in the early morning of July 29, he died as a result of a gunshot wound to the head, with skull perforation and brain penetration. The victim was fifteen years of age.

Brockton police officers arrived at the victim’s home before the EMTs had left with him. In the room in which the victim [28]*28lay (his bedroom), one officer observed three holes in a window. Below that window, on a walkway leading to the entrance of the victim’s apartment, police recovered three .380 caliber discharged cartridge casings. Two spent projectiles were recovered inside the victim’s apartment: one inside a television set in the victim’s bedroom and the other embedded in a wall that was perpendicular to his bedroom. An additional spent projectile was removed from the victim’s body during his autopsy and was turned over to police.

The defendant was implicated as the shooter by Tayvin Burton and Joshua Taylor, who were granted immunity for their trial testimony.1 Taylor did not have much of a present memory at trial, but recalled that, before the shooting, he, Burton, and the defendant had been at the house of John Parks2 on Green Street in Brockton. Taylor stated that he, the defendant, and Burton then went to the victim’s house where Taylor heard three shots fired. The three fled to a friend’s house, where, in the basement, Taylor observed the defendant with a gun. Taylor recounted that, a couple days later, the defendant told him that he had “fucked up.” According to Taylor, the defendant also remarked, “It’s one under the belt though.”

Burton was able to recall further details. He knew the victim and his brother, as well as the defendant. Before the shooting, Burton stated, he, Taylor, and the defendant were at Parks’s house. Also present was the defendant’s uncle, Rodney Galloway. The defendant pulled Burton aside and told him that he needed him to “look out” so he could go kill “Murder,” who was also known as Marcus Robinson. Burton stated that he, Taylor, and the defendant rode bicycles to the victim’s house. The defendant walked past a porch and went up some steps. Burton turned away, heard three or four shots, and then turned back and saw the defendant return a firearm to his waistband. Burton testified that the three of them fled to a friend’s house where the defendant stated that he thought that he had hit someone and displayed a gun. After about ten minutes, Burton testi[29]*29fled, the three returned to Parks’s house. A couple of days later, Burton recounted, the defendant told him that he thought he had killed the victim and had made a mistake. The defendant asked Burton to “stash” the gun, which he did.

About one week later, Burton testified, the defendant and Galloway came to him looking for the gun. According to the defendant, as relayed by Burton, Jarreau Pelote ended up with the gun.

The prosecutor also offered statements made by the defendant before and after the shooting. Galloway testified that, about six hours before the shooting, at Parks’s house, the defendant told him that he had a problem with the victim’s brother and intended to retaliate. Galloway went on to state that the defendant was looking for a gun. Galloway knew that there was a .380 caliber gun at Parks’s house. When Galloway left, the defendant remained at Parks’s house.

The next day Galloway saw the defendant on Green Street. The defendant told him that he had “messed up” because the “wrong dude got hit.” The defendant had shot at a “shadow,” and stated that he had meant to shoot the victim’s brother. The defendant relayed that he had tried to fire a fourth shot, but there was a malfunction with the gun. Galloway testified that Pelote ended up with the gun. Galloway testified pursuant to a plea agreement made with Federal prosecutors.3

There was evidence that, after the shooting, on August 14, 2008, the defendant ran into Emmanuel Teixera on Green Street. Teixera asked the defendant about the shooting. The defendant responded that he “let off three shots,” and had obtained the gun from Galloway. The defendant informed Teixera that the gun since had been sold. Teixera testified pursuant to a plea agreement made with Federal prosecutors.

Kashin Nembhard testified that, sometime in March and April, 2009, he shared a cell with the defendant at the Plymouth County [30]*30house of correction. During this time, the defendant told him that he had had an issue with Murder and “another kid named Cam”; had borrowed a gun; and, with Burton and Taylor, had gone to the victim’s house. There, the defendant told Nembhard, he had positioned himself by a window and asked Taylor if “this [was] the kid they had beef with,” to which Taylor had responded affirmatively. According to Nembhard, the defendant stated that he had pointed the gun at the window and had shot three times. The defendant relayed to Nembhard that he found out later that he had shot the wrong person. The defendant stated that the victim’s brother was “running with Murder” and “could get it too.” The defendant also told Nembhard that he had used a .380 caliber gun. Nembhard testified pursuant to a plea agreement made with Federal prosecutors.

While the defendant was in custody, his former girl friend and mother of his child telephoned him. The victim had been her friend. The telephone conversation was recorded and the defendant’s former girl friend identified the voices as being hers and the defendant’s. The defendant told her, “It was not meant for him.”

In August, 2008, police officers executed a search warrant at the home of Pelote. There, they recovered a firearm capable of firing .380 caliber ammunition. Testing indicated that the spent projectile recovered from the victim’s body came from the gun found inside Pelote’s residence.4

The defendant did not testify. His trial counsel, in his closing argument, urged the jury to examine the “nature of some of the people” who had testified, including Galloway, Teixera, Nembhard, Burton, and Taylor.

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Cite This Page — Counsel Stack

Bluebook (online)
8 N.E.3d 270, 468 Mass. 26, 2014 WL 1663159, 2014 Mass. LEXIS 216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-webb-mass-2014.