Commonwealth v. Wilson

705 N.E.2d 313, 46 Mass. App. Ct. 292, 1999 Mass. App. LEXIS 91
CourtMassachusetts Appeals Court
DecidedFebruary 5, 1999
DocketNo. 97-P-222
StatusPublished
Cited by8 cases

This text of 705 N.E.2d 313 (Commonwealth v. Wilson) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Wilson, 705 N.E.2d 313, 46 Mass. App. Ct. 292, 1999 Mass. App. LEXIS 91 (Mass. Ct. App. 1999).

Opinion

Kaplan, J.

Harry Bennett and Tyrone Wilson were jointly tried by jury and severally convicted of assault by means of a dangerous weapon (a shod foot) (G. L. c. 265, § 15B[b]) and [293]*293assault and battery (§ 13A), but acquitted of assault and battery by means of a dangerous weapon (a knife) (§ 15A[b]), and armed assault with intent to murder (§ 18[b]). The appeal of the defendant Tyrone Wilson is before us.1 After describing the case, we have to deal with the appellant’s claims related to his access to the Commonwealth’s identification procedure, the use of an extrajudicial statement by Bennett, and the prosecutor’s closing statement to the jury.

The record. The jury heard the following from the witnesses named in the margin.2 On June 26, 1993, Jamie Burns, age nineteen (who became the victim) was visiting his cousin Perlesía Nettles on Speedwell Street in the Dorchester section of Boston. Although Bums lived in the Roxbury section, he spent much time that year with Nettles and became friendly with the neighbors. Bums knew Harry Bennett (by his nickname Junior) well enough for conversation when they met on the street. Tyrone Wilson he recognized from hanging around the street, but did not know his name.

About 10:30 p.m., after playing cards and drinking beer for a few horns with a couple of friends, Bums and the others went to pick up food from a Chinese restaurant on Bowdoin Street. While outside on Norton Street waiting for the food, Burns encountered one Juanito, a Dorchester acquaintance. As the two talked and fooled around, Juanito dropped a knife sheath. Bums picked it up and returned it to Juanito. This was in the sight of six or seven men on the porch of a nearby house. Now Bennett walked by the house, and speaking loudly enough for the watchers to hear, he warned Bums not to hand anything to Juanito because he was fighting with Juanito, and “You better roll out before you get cracked in your cranium.” Bums ran toward the restaurant. Seven or eight minutes later, Bennett, followed by the group from the porch, came up to Burns and tried by provocative words to start a fight with him. Bums turned away toward the restaurant. Without warning, Bennett punched him in the mouth.

[294]*294Burns escaped into a bar next to the restaurant and in the bathroom cleaned the blood from his face. He rested in the bar for a minute, then walked to the door. It opened and Bennett and Wilson stood there with others behind them. Bennett had a knife in his hand and said, “You come out the bar, I’m going to stab you up.” Bums asked some people he knew in the bar to escort him; they led him out, forming a line around him, and together they walked past Bennett’s group. A few minutes later the rescuers left, and Bums went on alone down Bowdoin to Toplift Street intending to go to the cousin’s place on Speedwell Street. As Bums got to the comer of Bowdoin and Toplift, he looked back and saw the rescuers returning to the bar and Bennett and his group starting down Bowdoin toward him. The group reached Bums, and Wilson among them asked him why he wouldn’t fight Bennett one on one. Bums said if he fought Bennett and won, he would have to fight the rest. He ran across the street to get away; the group followed. In the chase, Bums tripped and fell against a fence. Bennett and Wilson were the first to catch up. They began to punch and kick and stab Bmns, Wilson working the upper body, Bennett the lower. In ten or fifteen seconds, the others arrived and joined in the kicking and punching. Very soon, all assailants scattered.

This was the meat of Bums’s testimony.3 Paul Jackson testified to seeing at a distance what happened from the confrontation on Bowdoin to the beating. He could not see the faces; the men wore hooded sweatshirts. Jackson accompanied Bums to Nettles’s house. Police and an ambulance arrived. A paramedic at Boston City Hospital reported that Bums was treated for stab wounds to his chest, hand, and left elbow.4

Perlesía Nettles took the stand to say Bums left her house to get Chinese food and came back later stabbed and bleeding. Bums told her he was stabbed by her friends, the “boys up the street.” The following day she was hanging out on Bowdoin, near the restaurant, talking to friends, including Freddie Ross. Bennett joined them and said to Ross, “We stabbed that nigger up last night ... on Topliff [ric] Street.” Bennett was flicking a knife while speaking. On cross, she said Wilson was not [295]*295present or named when Bennett spoke. Nettles knew Bennett as “Junior” and Wilson as “Tyrone.”

Nettles gave the foregoing account to Detective George Foley, who worked this section of Dorchester, after asking Foley how she could inform the police without getting herself involved. He said he would pass the word to those investigating the case.

The rest of the evidence for the prosecution dealt with the process of firming up identifications. Patrolling Bowdoin Street, said Foley, he saw Ross talking to a man Foley did not know. Foley told the man he was curious about his name because he saw him often with Ross and liked to know the people in the neighborhood. The man gave his name as Tyrone Wilson. Later Foley learned Bennett’s full name. He secured pictures of both men and gave these to Detective Lawrence Pacino, assigned to the case. Two weeks after the episode, Pacino said he showed Bums two photo arrays; each was of nine pictures, one containing a picture of Bennett, the other Wilson. Bums identified the two as the attackers in the lead. Pacino had spoken to Bums the night of the attack but got only a statement about ten to fifteen black males without names or particular descriptions. He had not spoken to Bums again until the display of pictures. Indeed, cross-examination indicated Pacino had done a minimum of investigating.5

Identification procedure. The prosecutor responded to defense requests — notes and memoranda from the investigating officers, copies of the photo arrays, and names of potential witnesses to the attack. Still the defense thought the identifications were open to suspicion as Bums had not described the particular attackers before he was shown the pictures. So too, the investigator acting for the defense had been unable to find and question Bums, although the prosecutor had furnished an address for him in Roxbury.

By motion under Commonwealth v. Dougan, 377 Mass. 303, 316-317 (1979), both defendants requested a voir dire at which Bums and the officers could be questioned in detail and suggestiveness or other fault in procuring identifications might be [296]*296uncovered.6 Answering the motion, the prosecutor said she had delivered all the information she had, including an important memorandum from Detective Foley detailing the steps that rounded out the Commonwealth’s proof (corresponding to Foley’s later testimony at trial). The memorandum reported Nettles telling Foley she heard “Junior” and “Tyrone” were involved in the stabbing. This early suspicion was not testified to at trial, although it appeared in Nettles’s voir dire testimony in another connection, to be mentioned below. The prosecutor said a voir dire about identification would not add anything of use to the defense. On the whole submission, the motion judge denied the Dougan motion, but directed the prosecution to furnish any additional information about the whereabouts of witnesses.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Gallett
119 N.E.3d 646 (Massachusetts Supreme Judicial Court, 2019)
Commonwealth v. Hernandez
102 N.E.3d 428 (Massachusetts Appeals Court, 2018)
Commonwealth v. Rivera
981 N.E.2d 171 (Massachusetts Supreme Judicial Court, 2013)
Commonwealth v. Dosouto
975 N.E.2d 870 (Massachusetts Appeals Court, 2012)
Commonwealth v. Vasquez
971 N.E.2d 783 (Massachusetts Supreme Judicial Court, 2012)
Commonwealth v. Philyaw
774 N.E.2d 659 (Massachusetts Appeals Court, 2002)
Commonwealth v. Roberts
740 N.E.2d 176 (Massachusetts Supreme Judicial Court, 2000)
Commonwealth v. Rose
711 N.E.2d 610 (Massachusetts Appeals Court, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
705 N.E.2d 313, 46 Mass. App. Ct. 292, 1999 Mass. App. LEXIS 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-wilson-massappct-1999.