Commonwealth v. Celester

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SJC-07874
COMMONWEALTH vs. JERMAINE CELESTER.
Plymouth. October 9, 2015. - February 10, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Homicide. Constitutional Law, Assistance of counsel,
Confrontation of witnesses, Public trial. Evidence,
Spontaneous utterance. Practice, Criminal, Capital case,
New trial, Assistance of counsel, Confrontation of
witnesses, Conduct of prosecutor, Argument by prosecutor,
Public trial.
Indictments found and returned in the Superior Court
Department on April 19, 1994.
A pretrial motion to suppress evidence was heard by Robert
L. Steadman, J.; the cases were tried before Gordon L. Doerfer,
J.; a motion for a new trial, filed on November 2, 2005, was
heard by Robert C. Rufo, J.; and a second motion for a new
trial, filed on June 20, 2013, was considered by Thomas F.
McGuire, Jr., J.
Chauncey B. Wood for the defendant.
Mary E. Lee, Assistant District Attorney, for the
Commonwealth.
Kirsten V. Mayer, Maria M. Carboni, David J. Derusha, Mark
S. Gaioni, & David Lewis, for Massachusetts Association of
Criminal Defense Lawyers, amicus curiae, submitted a brief.
2
BOTSFORD, J. In September, 1995, a Plymouth County jury
convicted the defendant, Jermaine Celester, of murder in the
first degree on theories of deliberate premeditation and extreme
atrocity or cruelty and of armed assault with intent to murder.
The victims, Wakime Woods and Derek Gibbs, were shot while
walking with the defendant on the night of February 18, 1994.
Woods died as a result of his injuries; Gibbs lived, but was
rendered a quadriplegic. On appeal, the defendant challenges
the admission in evidence of the decedent's out-of-court
statement about who had shot him; the admission of the
defendant's statement to police; the prosecutor's conduct, and
in particular her closing argument; and the closure of the court
room during jury empanelment. For the reasons discussed in this
opinion, we affirm the defendant's convictions, but vacate the
order denying his first motion for a new trial and remand the
case to the Superior Court for an evidentiary hearing on that
motion.
Background. From the evidence presented at trial, the jury
could have found the following facts.1 On the evening of
February 18, 1994, Wakime Woods and Derek Gibbs were shot near
the corner of Green and Newbury Streets in Brockton. The
Commonwealth's theory of the case was that the defendant shot
1
We discuss additional evidence in connection with the
issues raised.
3
both victims because he was seeking revenge for the murder,
approximately four months earlier, of his good friend Robert
Moses, and believed that Gibbs was refusing to reveal the
identity of the person who had murdered Moses.2
On the day Gibbs and Woods were shot, Gibbs, Woods, and
their friend Demetrious Lynch had been at the Boys & Girls Club
in Brockton until 6 P.M. Afterward, they went to a house across
the street from the club, where they smoked marijuana and then
started walking to Gibbs's house. As the three were walking,
two young women drove up in an automobile, and Gibbs and Woods
spoke to them. Another vehicle with young women soon arrived,
2
Robert Moses had been shot and killed in September, 1993,
in front of the defendant's house on Newbury Street in Brockton.
Derek Gibbs and two other young men, Calvin Dyous and Larry
Brown, were present when Moses was murdered. The defendant, who
was not present, came out of his house immediately after Moses
was shot; he was "real upset" and holding a pistol. The
defendant considered Moses his "god brother." After Moses was
killed, the defendant asked Gibbs for details about Moses's
murder "[p]retty much every time [Gibbs] saw him." On one
particular occasion in early February, 1994, two weeks before
Gibbs and Wakime Woods were shot, the defendant brought Gibbs,
Dyous, and Brown together to talk about what had happened the
night Moses was killed. The defendant was uneasy, breathing
heavily, and pacing. He kept going over and over again what had
happened that night, asking Dyous and Brown "to describe
. . . everything the way the shooter approached [Moses], just
how everything happened . . . . [T]hey kind of had to draw a
mental picture." As the conversation continued, it grew louder
and participants seemed upset. The defendant insisted that they
all go to Boston to look at police photographs in order to
identify Moses's killer. (Gibbs and Brown went to Boston with
the defendant, but Dyous refused.) At one point, the defendant
made reference to "tak[ing] out" all the witnesses to Moses's
murder.
4
and one of its occupants began to argue with one of the young
women in the first vehicle. Both automobiles then left. When
Gibbs, Woods, and Lynch reached Gibbs's house, Lynch continued
on to his own house to change his clothes. Gibbs and Woods went
into Gibbs's house. Thereafter, Gibbs and Woods went outside a
few times to see if Lynch and another friend had arrived. Gibbs
at one point was standing alone on the sidewalk in front of his
house, and the defendant approached from the side of Gibbs's
house through a small alleyway between a store and the house;
the defendant "kind of surprised [Gibbs]." The defendant was
wearing a black jacket and dark clothes. He mentioned that he
wanted to go see another friend, Larry Brown (see note 2,
supra), and Gibbs agreed. Woods at that point walked out of
Gibbs's house. The defendant did not know Woods; the two had
never met. Gibbs introduced them: "This is Bear,[3] . . . this
is Wakime."
The three started off toward Brown's house, walking along
Green Street. As they were walking, Gibbs's father pulled up in
a van and told them to get out of the street, and the defendant
"slipped off to the side," away from the van. After Gibbs's
father drove off, the three resumed walking, with Gibbs in the
middle, Woods on the left, and the defendant on the right side
of Gibbs. Suddenly the defendant was no longer in Gibbs's view;
3
The defendant's nickname was "Bear."
5
"it seemed like [the defendant] just stopped short."
Immediately thereafter, Gibbs heard a "pop" -- a gunshot -- and
he fell to the ground; he had been shot.4
Marlene Scott, who was at her mother's house on Newbury
Street, heard gunshots in rapid succession and looked out the
window to see a man in dark clothing and a hood running down
Green Street toward Newbury Street. Scott jumped back from the
window and then went outside. She recognized Gibbs, who was
lying in the street, and began to scream. She did not
immediately notice anyone else, but then heard a voice from
behind a snowbank calling for help; it was Woods. Scott ran
over to Woods and asked, "Who shot you? Who shot you?" to which
Woods replied, "The kid I was with." Scott followed up, "Do you
know him?" and Woods replied, "No."
Sergeant Kenneth LaGrice of the Brockton police department
arrived on the scene very soon after the shooting. He first
went over to Gibbs, who was lying unconscious in the center of
Green Street; he observed a large pool of blood around Gibbs's
head and several shell casings in the area of Gibbs's body.
Soon after he arrived, LaGrice called for ambulances and medical
assistance, and then heard Woods calling for help. He found
Woods lying at the base of a snow bank with a tall, thin,
4
Before he heard the shot and fell, Gibbs did not see any
motor vehicles or other people in the area, nor did he hear
anyone call out to them.
6
African-American woman nearby -- Marlene Scott, whom he knew.
LaGrice asked Woods who had shot him, and Woods initially
responded that he did not know, but when asked again, said, "I
don't know his name." Woods was "very excited, very scared,"
and kept repeating that he had been shot and needed help.
Woods was taken by ambulance to the emergency department of
Cardinal Cushing Hospital. He was awake and following commands
when he arrived, but also was in respiratory distress, having
suffered multiple gunshot wounds, including one that had pierced
his lung. He was able to speak in short, coherent sentences for
a brief period of time, but was deteriorating quickly. Dr.
David Mudd, who first treated Woods, asked Woods what had
happened to him. Dr. Mudd remembered Woods saying something to
the effect of "he had been smoking with some friends and
somebody came up to him and shot him." Woods did not say who
had shot him. Because the hospital was not able to treat
Woods's injuries fully, he was taken by helicopter to Brigham
and Women's Hospital, where he died the next morning.
Gibbs, meanwhile, was taken to Brockton Hospital and then
transported to Boston City Hospital. He had suffered a bullet
wound to the neck. The bullet entered the right side of Gibbs's
jaw and exited through the back left side of his neck, tracking
from front to back in a slightly downward direction; it
fractured Gibbs's second and third vertebrae and severed his
7
spinal cord at that location, instantly paralyzing him from the
neck down.
In the early morning hours of February 20, 1994, while
Gibbs was still in the hospital, Brockton police Detective
Clifford Hunt showed Gibbs a photographic array. Gibbs
identified the defendant,5 and an arrest warrant for murder
(murder warrant) for the defendant was issued. The defendant
learned that the police were looking for him, and at
approximately 10 A.M. on February 20, the defendant went to the
Brockton police station, accompanied by an attorney, James
Gilden. With Gilden present, the defendant was given Miranda
warnings, signed a form acknowledging that he understood his
rights, agreed to speak to the police, and gave a statement,
predominantly in narrative form, in which he described meeting
Gibbs and Woods (whom he said he did not previously know) on
February 18 outside Gibbs's house, walking with Gibbs and Woods
toward Brown's house, and encountering young women who arrived
in two different automobiles. As the defendant, Gibbs, and
Woods approached Newbury Street, the defendant noticed an old
Cougar automobile pulled over at the corner of Newbury and Green
Streets, and saw the passenger in the vehicle, an African-
5
Detective Clifford Hunt was not asked, and he did not
state, whom Gibbs had been asked to identify -- for example,
whether Gibbs had been asked to identify the person who had been
walking with Gibbs and Woods, or the person who had shot Gibbs
and Wood, or perhaps both.
8
American man who looked like a "body builder," get out, after
which Gibbs said, "I feel like something is going to happen
tonight." The defendant then heard a gunshot and saw Gibbs
fall. The defendant did not see anyone in front of them, but
thought he saw an automobile up on the hill in the distance with
its lights on. He started running through back yards to get to
his house; while running, he heard two more shots and an
automobile take off. The defendant did not call police and did
not go outside when he heard police arrive because he did not
want to be a witness.
State Trooper Michael Robert Arnold investigated the scene
of the shooting and found four spent cartridge casings clustered
together and one spent projectile. Another spent projectile was
recovered from Woods's body. Arnold opined that the four
cartridge casings were fired from the same weapon and that the
two projectiles were fired from the same weapon. He further
opined that the locations of the casings and projectile at the
scene and the results of ballistics testing were consistent with
one gun being used, although he could not scientifically connect
the projectiles and the casings to one gun. Arnold found no
damage to the projectiles that would suggest that they had
ricocheted off any solid objects before striking the two
victims. The casings, which were from a nine millimeter weapon,
would travel only a distance of fifteen feet or usually less
9
when fired, meaning that the shooter was in close proximity to
where the casings were found. Testing on the victims' clothes
revealed no gunshot residue, suggesting that the muzzle of the
weapon used was further than three feet from the victims at the
time it was fired.
Woods had suffered three, possibly four gunshot wounds,
three of which were entrance wounds into his back and one of
which was an entrance wound into his left thigh. The entrance
wound on Woods's thigh was atypical in appearance. The entrance
point was irregularly round with irregular scraping around it,
which could have been caused by the bullet passing through
another object or ricocheting off something before hitting the
thigh. In the opinion of Dr. James Weiner, the medical examiner
who performed the autopsy, one of the bullets likely entered
Woods's back and exited through the abdomen, then "reentered the
left groin area and this [was] one continuous wound track if the
left leg was raised away from the body and lifted up."
The defendant's statement to the police was introduced in
evidence as part of the Commonwealth's case. The defense theory
at trial was that while the defendant was walking with Gibbs and
Woods on February 18, 1994, an unknown assailant or assailants
had appeared suddenly and shot Woods and Gibbs, causing the
defendant immediately to flee toward his own house. The
defendant did not testify, but called Officer Mark Reardon of
10
the Brockton police as a witness. Reardon testified that on
February 18, he received a police radio transmission about a
shooting on Green Street and an alert to be on the lookout for a
dark colored, four-door vehicle with tinted windows that had
fled the scene. Shortly thereafter, he observed a vehicle with
three African-American male occupants who appeared uneasy as a
result of Reardon's observation. The vehicle was a red, two-
door Ford Tempo. Over the police radio, Reardon described the
vehicle; he was told that the vehicle did not appear to be the
one that fled the scene of the shooting, but a request was made
to pull the vehicle over because it was wanted in connection
with an incident that had occurred earlier in the evening.
Reardon pulled over the vehicle on Eagle Avenue and ordered the
occupants out; the operator and one occupant ran from the scene.
Reardon held the other occupant at the scene. He then searched
the vehicle but did not find a gun or any casings in it. The
one occupant who had remained was arrested for several motor
vehicle offenses. The other occupants of the vehicle ultimately
were identified.6 The woman who reported seeing a vehicle
fleeing the scene of the shooting, Corrina Defrancesco, was
taken to Eagle Avenue by another Brockton police officer,
Michael Mather; she observed the vehicle that Reardon had pulled
6
No evidence was introduced at trial concerning the
identities of the occupants of the stopped motor vehicle.
11
over, and then went to the Brockton police station to give a
statement or make a report.7
Procedural history. On April 19, 1994, a grand jury
returned indictments charging the defendant with murder in the
first degree and armed assault with intent to murder. The
defendant filed a motion to suppress his statements on
voluntariness grounds as well as ineffective assistance of his
first counsel, Gilden. An evidentiary hearing was held on March
28, 1995, and the motion was denied by a Superior Court judge
(first motion judge). A different Superior Court judge (trial
judge) presided over the defendant's jury trial that took place
in September, 1995. Following his convictions, the defendant
filed an appeal and then moved to stay the appeal pending a
motion for a new trial.
The defendant filed his first motion for a new trial in
November, 2005.8 He claimed, among other issues, that his
7
No report was introduced in evidence. A report of a
statement by Corrina Defrancesco was introduced as an exhibit
for identification. In preparing its response to the
defendant's appeal now before this court, the Commonwealth
located a second page of that report, and has filed a motion to
expand the record to include this page. The motion is allowed.
The second page indicates that Defrancesco, on viewing the
stopped vehicle on Eagle Avenue, identified it as the same
vehicle she had observed backing down Green Street.
8
The defendant was convicted more than twenty years ago.
Most of the delay in this case accrued between the defendant's
trial in 1995 and his first motion for a new trial in 2005. The
record does not indicate the reason for this inordinate delay,
12
statement to police was admitted improperly because of the
ineffective assistance provided by the defendant's first
attorney, Gilden; that the Commonwealth failed to give proper
notice of expert testimony; that the defendant's trial counsel
was ineffective; that Woods's statement, relied upon to identify
the defendant as the shooter, was erroneously admitted as an
excited utterance; and that the Commonwealth failed to produce a
critical witness, Defrancesco, thus depriving the defendant of a
substantial defense. After discovery, a nonevidentiary hearing
on the motion was held in April, 2008, before a different
Superior Court judge (second motion judge), the trial judge
being no longer available. The second motion judge denied the
motion for a new trial in October, 2009, and the defendant's
appeal from that denial was consolidated with his direct appeal.
In 2013, the defendant filed a second motion for a new trial on
the ground that the court room was improperly closed during jury
empanelment; yet another Superior Court judge (third motion
judge) denied this motion without a hearing in November, 2014.
The defendant's appeal from that denial also was consolidated
with his direct appeal.
Discussion. The issues the defendant raises in this appeal
are ones that he raised in his two motions for a new trial. A
but unquestionably a delay of this length can pose significant
difficulties, and does in this case.
13
motion for a new trial that is considered in conjunction with a
defendant's direct appeal from a conviction of murder in the
first degree is reviewed pursuant to G. L. c. 278, § 33E. See,
e.g., Commonwealth v. Morgan, 449 Mass. 343, 353 (2007).
1. Admission of Woods's statement. The Commonwealth filed
a motion in limine before trial to admit as a spontaneous
utterance or dying declaration Woods's statement to Marlene
Scott that "the kid [he] was with" shot him. At a hearing on
the motion, defense counsel did not object to its being admitted
as a spontaneous utterance. The judge allowed the statement to
come in without specifically deciding whether it qualified as a
spontaneous utterance because of defense counsel's concession
that it did.
The defendant now argues on appeal that Woods's statement
to Scott was so unreliable that its admission violated his due
process rights under the Fourteenth Amendment to the United
States Constitution and art. 12 of the Massachusetts Declaration
of Rights. He also contends that Woods's statement to Scott was
testimonial, as the term is described in Crawford v. Washington,
541 U.S. 36, 51-53 & n.4 (2004),9 and therefore admitted in
9
Crawford v. Washington, 541 U.S. 36 (2004), was decided
nine years after the trial in this case. Crawford is applicable
to this case because the direct appeal was still pending at the
time that decision was issued. See Commonwealth v. Burgess, 450
Mass. 422, 426 (2008).
14
violation of his right to confrontation under the Sixth
Amendment to the United States Constitution.
a. Reliability of Scott's testimony. The defendant
challenges the existence of sufficiently reliable evidence that
Scott in fact spoke to Woods on February 18, 1994, to permit her
to testify at trial to Woods's alleged statement about who shot
him. He asserts that the trial judge, in his role as
gatekeeper, should have prevented the evidence from reaching the
jury because of its unreliability. As support, the defendant
notes, first, that Sergeant LaGrice arrived moments after
Woods's alleged statement to Scott and asked Woods who had shot
him, to which Woods replied that he did not know; second, that
Woods also told Dr. Mudd, who initially treated him at the
hospital, that he did not know who shot him; and finally, that
LaGrice testified that only one civilian was at the scene of the
crime when he arrived and he ultimately identified that person
as Defrancesco, not Scott, thereby suggesting that Scott was not
at the scene.
The defendant's argument fails. Scott testified without
equivocation that on the night of the shootings, she encountered
Woods lying behind the snowbank and talked to him while waiting
for the police to arrive. Although the jury certainly were not
required to believe Scott, nothing in the record suggests that
she was incompetent to testify as a trial witness, or that she
15
may have been impaired in any way on the date of the shootings.
Cf. Demoulas v. Demoulas, 428 Mass. 555, 563-564 (1998).
Moreover, contrary to the defense's argument, Scott's testimony
was not contradicted at all by the testimony of LaGrice, and
only weakly contradicted by Mudd.
LaGrice testified that Woods stated that he did not know
who shot him or, more specifically, did not know the name of the
person who shot him, while, according to Scott, Woods stated
that "the kid" he was with shot him, but he did not know the
person. Woods and the defendant had met for the first time on
the evening of the shooting, and the defendant was introduced to
Woods by his nickname, "Bear." Thus, the jury reasonably could
have found that Woods's statements to Scott and LaGrice were
substantively consistent. See Commonwealth v. Bush, 427 Mass.
26, 30-31 (1998). Mudd testified that he could not recall
Woods's exact words, but "remember[ed] [Woods] saying something
about smoking that day and not knowing who had shot him." In
contrast to Scott and LaGrice, however, Mudd did not ask Woods
who shot him, and his conversation with Woods occurred in the
hospital at a point where Woods was in respiratory distress and
deteriorating quickly. To suggest that the lack of congruence,
in some respects, between Scott's and Mudd's testimony renders
the former so unreliable that it was incompetent expands the
concept of testimonial incompetence completely beyond
16
recognition. That two different witnesses may provide
inconsistent or conflicting testimony does not turn one of them
into an unreliable witness; making judgments about witness
credibility and the weight of witness testimony is the function
of the jury. See Commonwealth v. Lydon, 413 Mass. 309, 311
(1992), citing Commonwealth v. Martino, 412 Mass. 267, 272
(1992).
Finally, the defendant's claim that LaGrice identified
Defrancesco, not Scott, as the person at the scene with Woods
when he arrived is not supported by the record. LaGrice
testified that he arrived on the scene forty-five seconds after
hearing of the shooting, and observed a tall, thin, African-
American woman assisting Woods. He identified the woman as
Scott, who is African-American, and whom LaGrice knew. LaGrice
then mistakenly testified that Scott had reported seeing a
vehicle in the area of the shooting, but after his recollection
was refreshed, he testified that Scott was not the woman who
made the report about the vehicle. The woman who reported the
vehicle ultimately was identified as Defrancesco, who is white.10
b. Testimonial nature of Woods's statement. Testimonial
statements are inadmissible unless the declarant is unavailable
10
Although, as the defendant contends, there may be some
inconsistencies in some of the testimony of Brockton police
Sergeant Kenneth LaGrice, considered as a whole those
inconsistencies do not render Marlene Scott's testimony that she
saw and spoke with Wakime Woods unreliable.
17
for trial and the defendant had a prior opportunity for cross-
examination. Crawford, 541 U.S. at 68. "'[O]ut-of-court
statements made in response to questions from people who are not
law enforcement agents' . . . are not testimonial per se"
(emphasis in original). Commonwealth v. Burgess, 450 Mass. 422,
429 (2008), quoting Commonwealth v. Gonsalves, 445 Mass. 1, 11
(2005), cert. denied, 548 U.S. 926 (2006). A statement
nevertheless may be testimonial in fact if a "reasonable person
in the declarant's position would anticipate his statement being
used against the accused in investigating and prosecuting a
crime." Gonsalves, supra at 3. See Commonwealth v. Nesbitt,
452 Mass. 236, 244 (2008).
Woods's statement to Scott clearly was not testimonial per
se because she was not a law enforcement agent. See Burgess,
450 Mass. at 429. Nor was it testimonial in fact. When Scott
found Woods, he had just been shot at least three times. One
bullet tore through Woods's liver and right lung, and another
tore through several loops of Woods's bowel. The gravity of
these injuries, and the immediate threat they posed, likely
would "preclude a reasonable person in [Woods's] position from
anticipating any nonimmediate future event, including a police
investigation or a prosecution of the perpetrator." Nesbitt,
452 Mass. at 249. At the time that Scott and then LaGrice found
Woods lying against the snowbank, Woods was "very excited, very
18
scared" and kept repeating that he had been shot and needed
help. In such circumstances, Woods's statement that the "kid"
Wood was with shot him was not testimonial in fact, and was
admissible. See id.11
2. Ineffective assistance of defendant's first attorney
and admission of defendant's prearraignment statement to police.
The defendant argues that the advice he received from his
attorney, Gilden, at the time the defendant gave a statement to
the police, was constitutionally ineffective under the Fifth
Amendment to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights, and constituted "error"
warranting reversal of his convictions under G. L. c. 278,
§ 33E. See Commonwealth v. Wright, 411 Mass. 678, 682 (1992),
S.C., 469 Mass. 447 (2014).12
11
The defendant asserts that Commonwealth v. Nesbitt, 452
Mass. 236 (2008), is factually very distinct from this case, in
that the victim there was closer to death than was Woods -- she
died fifteen minutes after making the statement at issue, as
compared to ten hours in Woods's case. We view the factual
differences as ones of degree, not kind. Given the severity of
Woods's injuries, the extreme pain that he was highly likely to
be experiencing (as testified to by Dr. David Mudd), and the
excited and frightened state that Woods was in when he spoke to
Scott and LaGrice, we do not accept the defendant's premise that
the factual differences between this case and Nesbitt make that
case wholly distinguishable.
12
The defendant raised a claim of ineffective assistance of
counsel in his pretrial motion to suppress his statement and
again in his first motion for a new trial. In denying the
motion to suppress, the first motion judge concluded that the
defendant's waiver of his Miranda rights was knowing and
19
a. Background. The first motion judge held an evidentiary
hearing on the defendant's motion to suppress his statement. We
summarize here his findings.13 Detective Hunt responded to the
scene of the shootings on February 18, 1994, and as a result of
his interviews of witnesses and investigation, he sought and
obtained a murder warrant for the defendant in the early morning
of February 20. The defendant's uncle contacted Gilden and
asked him to represent the defendant. Gilden telephoned the
defendant, who told Gilden about a shooting that had taken place
in Brockton and stated he was scared to go to the police station
and tell what had happened.14 Gilden then telephoned the
Brockton police around 8 A.M. on February 20. He spoke to Hunt,
who informed him that Hunt had a murder warrant for the
voluntary, that his statement was voluntary, and that he had
received competent assistance of counsel. The second motion
judge also denied the claim, although he did not affirmatively
determine whether the defendant's counsel at the time of making
his statement had been ineffective.
13
The only witness to testify at the evidentiary hearing on
the defendant's motion to suppress was Detective Hunt. The
defendant submitted an affidavit in support of his motion to
suppress and the Commonwealth introduced an affidavit of James
Gilden as an exhibit at the motion hearing, but neither the
defendant nor Gilden testified at that hearing.
14
The first motion judge's memorandum of decision includes
these findings about the defendant's uncle contacting Gilden as
well as about the exchange between Gilden and the defendant
concerning the defendant's desire to have a lawyer accompany him
to the Brockton police station. Because Gilden did not testify
at the motion hearing, we infer that the judge based these
findings on Gilden's affidavit.
20
defendant. Gilden picked up the defendant and drove him to the
Brockton police station around 10 A.M. on the same day. On the
way, Gilden advised the defendant that he should tell the truth
if he gave a statement.
The first motion judge further found that, when the
defendant and Gilden arrived at the police station, they were
taken to the interrogation room. Hunt showed both Gilden and
the defendant the murder warrant, and both reviewed it without
comment. Hunt then placed the defendant under arrest.15 Hunt
next read the defendant the Miranda rights from a sheet while
Gilden was present and listening. The defendant signed a waiver
form that stated that he understood his rights. Gilden
witnessed the waiver. Thereafter, the defendant gave a
statement to Hunt. Gilden was present throughout, but at no
time did the defendant ask to speak privately to Gilden. Hunt
did not record the statement, but took notes of what the
defendant said. The interview was approximately one hour long,
and thereafter the defendant was taken to be booked. At the
time of making the statement, the defendant was twenty-one years
old and of average intelligence, appeared calm and responsive,
15
Hunt did not testify explicitly that he had placed the
defendant under arrest before the defendant had made his
statement, but Hunt did testify that he had advised the
defendant that he was under arrest before the defendant's
statement.
21
and did not appear to be under the influence of drugs or
alcohol.
Based on these findings, the first motion judge denied the
defendant's motion to suppress, concluding that the defendant's
waiver of his Miranda rights was knowing and voluntary, that the
defendant's statement was voluntary, and that he had received
competent assistance of counsel. The judge's memorandum of
decision does not mention or refer to the defendant's affidavit
filed in support of his motion to suppress. That affidavit,
dated February 7, 1995, sets out a number of the facts contained
in the judge's findings, but also adds the following. While
being driven by Gilden to the Brockton police station, the
defendant told Gilden what he knew about the shooting, and
Gilden told the defendant that all he had to do was explain to
the police what happened, which the defendant understood to mean
that if he told the police what he had told Gilden, he would be
free to leave the police station thereafter. When they arrived
at the police station, the defendant was taken into an
interrogation room, accompanied by Gilden and a police officer.
Gilden and the police officer spoke together outside the room,
and when they returned to the room, Gilden told the defendant,
"[T]ell him what you told me," and the defendant did so. When
the defendant finished, the officer arrested him for murder. If
the defendant had known that he was a suspect in the murder
22
investigation, and not simply a witness, he never would have
made a statement; he had been arrested many times in the past
and was aware that a person under arrest has the right not to
make any statement.
Gilden's affidavit, dated March 23, 1995, stated that after
he contacted the defendant at the request of the defendant's
uncle, the defendant said that the police were looking for him
in connection with a shooting in Brockton, and asked Gilden to
accompany him to the police station because he was scared to go
alone. Gilden then called the Brockton police and spoke to
Hunt, who informed him of the murder warrant for the defendant.
Gilden indicated that he would bring his client to the station.
Gilden picked up the defendant in Boston and drove to Brockton.
On the way, the defendant showed Gilden where the shooting had
taken place and "told [him] how the shooting had occurred." The
two also talked about the defendant speaking to the police and
telling the police what the defendant had told Gilden concerning
the shooting. The defendant never asked Gilden whether he
should speak to police, and "[t]he only advi[c]e that [Gilden]
gave [the defendant], before [they] went to the police station,
was that [the defendant] should tell the truth if he gave a
statement to police." When they arrived at the police station,
Hunt showed Gilden the Miranda form and Gilden witnessed the
defendant read and sign it; the defendant did not ask Gilden any
23
questions about the Miranda rights he was given. Gilden was
present throughout the time the defendant spoke to Hunt, but the
defendant never asked to speak to Gilden while he was giving his
statement. After the defendant completed his statement, he was
taken by Hunt to be booked, and just before he left, the
defendant said, "'You mean they are really going to hold me?,'
or words to that effect."16 Gilden left the police station after
the defendant was booked, but the next day, Hunt telephoned and
told him that the defendant wanted to speak to the police again
and asked Gilden to come to the station. Gilden did so, spoke
privately with the defendant, suggested to the defendant that
"further conversation with the police would not be helpful," and
told the police that the defendant would not be speaking with
them.17
16
Although Gilden's affidavit did not so state, at trial,
Hunt testified that during the police interview of the
defendant, Gilden, in Hunt's presence, told the defendant to
"tell the police officer what you told me," and the defendant
then gave his statement.
17
In connection with the defendant's first motion for a new
trial, the defendant and Gilden each filed an additional
affidavit, dated October 4, 2005, and October 6, 2005,
respectively. These affidavits include, among other topics,
information relating to the defendant's giving of his statement
to Hunt on February 20, 1994, and the interactions between the
defendant and Gilden in connection with that event. There are
some differences between the 1995 and 2005 affidavits of each
person, but at least with respect to the defendant, the
differences are not substantial, and do not affect our analysis
of his claim of ineffective assistance. (Gilden's 2005
affidavit appears to to be somewhat more consistent than his
24
b. Discussion. The defendant argues that he was entitled
to the effective assistance of counsel under the Fifth Amendment
and art. 12 in connection with his giving a statement during
Hunt's custodial interrogation of him on February 20, 1994.
The right to counsel protected by the Sixth Amendment does
not come into play until the time of arraignment. See, e.g.,
United States v. Gouveia, 467 U.S. 180, 188 (1984). To date,
this court has followed the same rule with respect to art. 12.
See, e.g., Commonwealth v. Anderson, 448 Mass. 548, 553-554
(2007). See also Commonwealth v. Lavallee v. Justices in the
Hampden Superior Court, 442 Mass. 228, 234-235 (2004) ("The
right to trial counsel under art. 12 attaches at least by the
time of arraignment"). However, a defendant is entitled to the
assistance of counsel under the Fifth Amendment to protect his
or her right against self-incrimination. In Miranda v. Arizona,
384 U.S. 436, 469 (1966), the United States Supreme Court
recognized that the right to have counsel present at a custodial
interrogation is "indispensable to the protection of the Fifth
Amendment privilege." See Johnson v. New Jersey, 384 U.S. 719,
1995 affidavit was with the defendant's averments that the
defendant did not learn he was being charged with murder until
after he had made his statement to the police, but this
difference also does not affect our analysis.) Moreover, it is
clear from the defendant's brief on appeal that he has relied on
his own and Gilden's 1995 affidavits in presenting his
arguments. Accordingly, we do not summarize or discuss here the
contents of the two affidavits prepared in 2005.
25
729 (1966) ("Our opinion in Miranda makes it clear that the
prime purpose of these rulings is to guarantee full effectuation
of the privilege against self-incrimination, the mainstay of our
adversary system of criminal justice"). The same is true to an
even greater extent under art. 12. See Commonwealth v.
Mavredakis, 430 Mass. 848, 858-860 (2000). See also
Commonwealth v. Clarke, 461 Mass. 336, 345-346 (2012);
Commonwealth v. McNulty, 458 Mass. 305, 314-319 (2010). This
court has emphasized the need under art. 12 to ensure that the
abstract rights listed in Miranda, including the right to speak
with an attorney, are "actualize[d]" and "substantively
meaningful." Mavredakis, supra at 860.
With respect to art. 12, we have not before explicitly
considered whether the right to the assistance of counsel that
art. 12 provides in connection with a prearraignment, custodial
interrogation is a right to the effective assistance of
counsel.18,19 We do so here, and in that connection, we agree
18
In Commonwealth v. Smiley, 431 Mass. 477, 480-481 (2000),
the defendant, who, after consulting counsel but before
arraignment, had given a statement to police, argued that the
statement should be suppressed because it was the product of
ineffective assistance of counsel. Quoting Commonwealth v.
Griffin, 404 Mass. 372, 374 (1989), a case concerning a
statutory right to counsel, we noted that a right to counsel is
of little value if the assistance given is not effective.
Smiley, supra at 481. We ultimately upheld the motion judge's
denial of the suppression motion because there was no showing of
ineffectiveness on the part of defendant's counsel. Id. at 481-
482. We did not address specifically whether the constitutional
26
entitlement to counsel in connection with a custodial
interrogation includes an entitlement to effective assistance of
counsel.
19
We focus only on art. 12 of the Massachusetts Declaration
of Rights. There do not appear to be many Federal cases
considering whether the right under the Fifth Amendment to the
United States Constitution to assistance of counsel in
connection with a custodial interrogation is a right to
effective assistance of counsel, and those that have considered
the question have not answered it affirmatively. See, e.g.,
United States v. You Hong Chen, 104 F. Supp. 2d 329, 333-334
(S.D.N.Y. 2000). See also Claudio v. Scully, 791 F. Supp. 985,
988 (E.D.N.Y.), rev'd on other grounds, 982 F.2d 798 (2d Cir.
1992). The United States Supreme Court does not appear to have
considered specifically whether the Fifth Amendment right to
assistance of counsel in connection with a custodial
interrogation is a right to effective assistance of counsel.
See Sweeney v. Carter, 361 F.3d 327, 333 (7th Cir.), cert.
denied, 543 U.S. 1020 (2004) ("as far as we can tell, the
Supreme Court has not mentioned effective assistance of counsel
[in the Strickland (v. Washington, 466 U.S. 668, 690-691
[1984],) sense] and the Fifth Amendment in the same breath, let
alone set forth a clearly established right to that effect").
With respect to other States, again the issue we consider
does not appear to have been addressed in many cases. Compare
Claudio, 982 F.2d at 804-805 (reversing denial of Federal habeas
corpus relief because reasonable probability existed that
defendant would have succeeded on claim that New York law
required defendant receive effective assistance of counsel
during precharge custodial interrogation), and State v. Joseph,
109 Haw. 482, 501 (2006) (Nakayama, J., concurring) (taking
position that defendant's statement during custodial
interrogation should be suppressed because defendant received
ineffective assistance of counsel when attorney advised him to
speak with police), with People vs. Frazier, No. 95-052613-FC
(Mich. Ct. App. Feb. 27, 1998) (no right to effective assistance
of counsel during postarrest, prearraignment custodial
interrogation). Cf. Phelps v. State, 435 So. 2d 158, 161 (Ala.
Crim. App. 1983) (lawyer's advice over telephone to defendant to
confess to crime before being charged not ineffective assistance
as matter of law); Riddle v. State, 580 So. 2d 1195, 1201-1202
(1991) (not per se ineffective assistance of counsel for lawyer
to advise defendant to confess to crime during precharge
custodial interrogation).
27
with the defendant that a person's right to speak with counsel
is not "actualize[d]" or "substantively meaningful" if counsel
fails to provide at least minimally competent advice.
Otherwise, counsel is not meeting the purpose of ensuring that a
defendant have a right to consult counsel in connection with a
custodial interrogation. See Mavredakis, 430 Mass. at 859-860.
See also Commonwealth v. Morales, 461 Mass. 765, 779-780 (2012)
(discussing Mavredakis, supra, and McNulty, 458 Mass. at 314-
319).20
Our case law concerning the right to counsel in other
settings supports this conclusion. For example, when a statute
provides a right to the assistance of counsel, we have held that
it is a right to the effective assistance of counsel, governed
20
In Commonwealth v. Simon, 456 Mass. 280, cert. denied,
562 U.S. 874 (2010), the defendant, accompanied by his attorney
and after having had the opportunity to speak with his attorney,
agreed to speak with the police in what was a custodial
interrogation taking place in the early stages of a murder
investigation. The police did not give the defendant Miranda
warnings before the interrogation began. In reviewing an
interlocutory appeal of the denial of the defendant's motion to
suppress his statement, we held that in the context of a
custodial interrogation of a criminal suspect, "the presence of
an attorney during questioning, when combined with the
opportunity to consult with the attorney beforehand, substitutes
adequately for Miranda warnings." Id. at 289. In Simon, the
defendant did not claim that the attorney accompanying him had
provided ineffective assistance of counsel. However, our
conclusion in that case -- that the presence of an opportunity
to consult an attorney renders the administration of Miranda
warnings unnecessary -- underscores the need to recognize that
the right to the assistance of counsel articulated in Miranda
and Mavredakis is a right to the effective assistance of
counsel.
28
by the standard in Commonwealth v. Saferian, 366 Mass. 89, 96
(1974). See, e.g., Poe v. Sex Offender Registry Bd., 456 Mass.
801, 811–812 (2010) (sex offender classification hearing);
Commonwealth v. Griffin, 404 Mass. 372, 374-375 (1989)
(appearance before grand jury). In Commonwealth v. Patton, 458
Mass. 119, 128 (2010), which raised the issue whether a
defendant is entitled to the effective assistance of counsel in
a probation revocation proceeding, in discussing cases such as
Poe and Griffin, we concluded that "[t]he principle that emerges
from these cases is that in a proceeding that involves a
person's liberty or a fundamental liberty interest, in which a
person has a right to appointed counsel, from whatever source,
the person is entitled to the effective assistance of counsel
whether counsel is appointed or retained." A custodial
interrogation of a criminal suspect certainly involves a
fundamental liberty interest. It follows that the
constitutionally based right to counsel in this setting must be
recognized as a right to the effective assistance of counsel.
See Commonwealth v. Moreau, 30 Mass. App. Ct. 677-679 (1991),
cert. denied, 502 U.S. 1049 (1992).21
21
In Commonwealth v. Moreau, 30 Mass. App. Ct. 677 (1991),
cert. denied, 502 U.S. 1049 (1992), the defendant appealed from
the denial of his motion to vacate his guilty pleas to charges
of armed burglary and related crimes on the basis of ineffective
assistance of counsel. One of his claims was that counsel was
ineffective in advising him, after he had been arrested but
29
The defendant contends that Gilden provided ineffective
assistance by instructing or advising him to make a statement to
police that had an inculpatory effect -- at a minimum, it placed
the defendant at the scene of the crime -- and by providing such
advice without conducting any investigation of the case and
despite the fact that the defendant had been arrested for
murder.22 Although it appears, if we accept the averments in
before arraignment on the charges, to make a statement to the
police describing his involvement. Id. at 678-680. The judge
denying the motion to vacate had done so without an evidentiary
hearing; the Appeals Court vacated the denial and remanded the
case for such a hearing, stating: "The defendant was, however,
entitled to the aid of counsel to protect his Fifth Amendment
privilege against self-incrimination under Miranda v. Arizona
. . . . Since 'a right to counsel is of little value unless
there is an expectation that counsel's assistance will be
effective,' . . . the defendant's claim of ineffective
assistance of counsel must be examined" (citations omitted).
Id. at 679, quoting Commonwealth v. Griffin, 404 Mass. 372, 374
(1989).
22
The defendant argues also that Gilden had an actual
conflict of interest that rendered his assistance ineffective.
Gilden apparently served as surety for the appointed conservator
of the defendant's father, at least when the father was alive
(the father died in 1990). In addition, according to affidavits
filed in connection with the defendant's first motion for a new
trial, Gilden may have had some continuing role in connection
with the administration of the defendant's father's estate,
although the actual facts are not at all clear from the record.
In January, 1992, a brother of the defendant raised a challenge
to the administration of the father's estate. The defendant
argues that Gilden's interests were antagonistic to all of the
heirs of the father's estate, including the defendant, because
of this challenge. There is no evidence, however, of an actual
conflict of interest, see Commonwealth v. Croken, 432 Mass. 266,
271-272 (2000), and according to Gilden, he did not learn of any
dispute involving the father's estate until at least two years
30
Gilden's affidavit, that Gilden, with the guidance of the
defendant, conducted some investigation of the scene of the
shootings, we agree that the advice he thereafter gave the
defendant was constitutionally ineffective under art. 12.
According to the first motion judge's findings, Gilden had
been informed that the police held a murder warrant for the
defendant by the time Gilden picked up the defendant to drive to
the Brockton police station, and Gilden was actually shown the
warrant when he arrived at the station. We understand Gilden's
affidavit to indicate that Gilden never discussed with the
defendant his right against self-incrimination or any of the
risks inherent in giving a statement to the police before the
defendant made his statement, and also said nothing to the
defendant before, during, or after Hunt read him the Miranda
rights and inquired about the defendant's understanding and
willingness to speak to the police. Rather, it appears from the
record before us that the only statement Gilden made during the
defendant's interview with Hunt was to direct the defendant to
tell Hunt what the defendant had told Gilden.
In this context, as the defendant's lawyer, Gilden had an
obligation at the very least to discuss with his client the
self-incrimination privilege and the potential consequences of
after the defendant gave his statement to police. We do not
consider the claim of conflict of interest further.
31
giving a statement to the police. Compare Commonwealth v.
Smiley, 431 Mass. 477, 481 (2000) (counsel not ineffective where
he appropriately advised defendant of consequences of making
statement to police and of waiving privilege against
incrimination). This was especially true in light of Gilden's
very brief and very limited investigation of the facts of the
case, namely, driving by the location where the shooting had
occurred and hearing the defendant's version of the events. In
that version, the defendant denied any involvement in the
shooting, and instead placed the blame on a third-party culprit.
Given that Gilden already knew of the murder warrant, it should
have been obvious to him that the defendant's description of
events differed materially from the view of the case taken by
the police. Before advising the defendant during the drive to
the police station simply to "tell the truth if he gave a
statement to the police," and particularly before stating to the
defendant during the police interview to "tell [the police] what
[he] told [Gilden]," Gilden should have made an effort at a
minimum to understand the factual basis for the murder charge
that had been lodged against the defendant.23 Although,
23
We do not suggest here that counsel for a criminal
defendant has an obligation always to advise his or her client
not to speak to the police, or that counsel may never properly
advise a client to make a statement to the police. The point is
that in a case such as this, where counsel's client was being
charged with murder, before affirmatively advising a client to
32
according to Gilden, the defendant did not ask Gilden any
questions while he was reviewing the Miranda form or giving his
statement, this did not relieve counsel of the affirmative duty
to discuss the risks and consequences of making a statement to
the police with the defendant. See American Bar Association
Standards for Criminal Justice, Defense Function, Standard § 4-
3.7(a) (4th ed. 2015) ("Defense counsel should inform the client
of his or her rights in the criminal process at the earliest
opportunity, and . . . take necessary actions to vindicate such
rights . . .").24
The Commonwealth argues that the defendant knowingly and
voluntarily waived his Miranda rights and agreed to speak with
the police, as both the first and second motion judges
determined to be the case, and therefore the defendant's
statement to the police is admissible without more. We do not
agree. It is of course true that a suspect with whom the police
speak about the case to the police, it is necessary for counsel
to undertake some investigation of the charge and the
government's evidence. See Moreau, 30 Mass. App. Ct. at 683 n.4
(in determining whether to advise client to speak with police,
counsel had to undertake some investigation as to basis of
information given by police).
24
In certain circumstances, it may not be possible for
counsel to undertake any investigation of charges pending
against the client before counsel is obliged to provide advice
concerning whether to speak to the police. In such a situation,
the need to advise the client about the risks of speaking with
the police appear to be even stronger. See E. Blumenson & A.B.
Leavens, Massachusetts Criminal Practice § 19.2 (4th ed. 2012).
33
seek to conduct a custodial interrogation may validly waive his
or her Miranda rights, including the right to counsel, without
an attorney being present and without having first been advised
by an attorney. But where, as here, the suspect, accompanied by
his attorney, appears for what will be a custodial interview,
the suspect has already exercised his right to have an attorney
present to assist him, and he is entitled to receive effective
legal assistance from that attorney. See Moreau, 30 Mass. App.
Ct. at 679. It would undermine the promise of Miranda and
Mavredakis if it were otherwise. The affidavits of the
defendant and Gilden are consistent in terms of the advice
Gilden gave to his client on February 20, 1994. Together, these
affidavits indicate, and we conclude, that Gilden's performance
as the defendant's attorney on that date fell "measurably below
that which might be expected from an ordinary fallible lawyer."
Saferian, 366 Mass. at 96. In the context of a case of murder
in the first degree, the question that arises is whether
Gilden's error created a substantial likelihood of a miscarriage
of justice. See Wright, 411 Mass. at 681. The answer requires
consideration of two further points: (1) whether Gilden's
erroneous legal advice caused the defendant to give his
statement to the police; and (2) if so, whether the evidence of
the statement at trial "was likely to have influenced the jury's
conclusion." Id. at 682.
34
We focus on the second point first, because if the jury
were not likely to have been influenced by the defendant's
statement, there would be no need to consider the first point.
If we assume that the defendant's statement to the police was a
direct consequence of Gilden's ineffective assistance, the error
did create a substantial likelihood of a miscarriage of justice.
The defendant's statement, admitted at trial, placed him
directly at the scene of the crime at the exact time the crime
was committed, strongly reinforcing Gibbs's trial testimony.
This was significant because the actual shooting incident here
happened very quickly, and Gibbs did not see who shot him. And
although Woods identified the shooter as "the kid [he] was
with," the strength of the identification may have been subject
to question, given Woods's condition at the time he was speaking
and the fact that he had been shot in the back, suggesting the
shooter was behind him and out of view. Moreover, the
prosecutor, in her closing, was able to use the statement
extremely effectively, pointing out the differences between what
the defendant had stated in comparison to Gibbs, and arguing
that the differences demonstrated that the defendant was lying
and pointed to consciousness of guilt on his part; based on
these statements, the judge gave a consciousness of guilt
instruction to the jury.25 In all these circumstances, the jury
25
The prosecutor also was able to make a persuasive
35
were likely to have been influenced by the defendant's statement
in reaching their verdicts.
Given this result, we must consider the first point, that
is, whether Gilden's ineffective legal advice caused the
defendant to give his statement to the police. The defendant
states in his affidavit that he would not have made a statement
if he had understood the police had identified him as a suspect
who may have committed the murder, and that he only made the
statement because he assumed that he was merely a witness -- an
assumption he states was based directly on Gilden's ineffective
advice to tell the police what he had told Gilden. However, the
first motion judge found -- presumably based on the testimony of
Hunt, the sole witness at the motion hearing -- that before he
gave his statement, the defendant was both shown the murder
warrant and placed under arrest, or advised that he was (see
note 15, supra) -- circumstances that certainly might suggest
the defendant in fact did know that he was a suspect when he
spoke. More significantly, these circumstances also might
suggest -- given the defendant's acknowledgement in his
affidavit that he was well aware a criminal suspect has the
argument that if the defendant heard the interchange among
Gibbs, Woods, and various young women in one or two automobiles
-- as the defendant told Hunt in his statement that he did -- it
must have been because the defendant was secretly following
Gibbs and Woods, "lying in wait" until they were alone, because,
as Gibbs testified, the defendant was not with Gibbs and Woods
when they encountered the young women.
36
right not to speak to the police -- that the defendant chose to
speak independently of any advice or directive from Gilden.26
However, the defendant did not testify at the evidentiary
hearing held by the first motion judge, and nothing in the
judge's opinion indicates that the judge considered or had even
read the defendant's affidavit, which, in contrast to Gilden's,
was not introduced as a motion exhibit. As for the second
motion judge, he did not hold an evidentiary hearing.27 In any
event, neither the first nor the second motion judge could
appropriately make findings of fact concerning the defendant's
knowledge or the reasons he gave his statement based on the
defendant's affidavit or affidavits alone.
In these circumstances, we conclude that it is necessary to
vacate the denial of the defendant's first motion for a new
trial and to remand the case to the Superior Court for an
evidentiary hearing before the second motion judge. This
hearing has a narrow purpose. The second motion judge must
26
It is also possible that the defendant might have chosen
to give a statement because it gave him an opportunity to put
forth his claim of a third-party culprit -- i.e., that an
unknown man the defendant saw get out of a Cougar automobile on
the corner of Green and Newbury Streets was the likely shooter.
27
The second motion judge concluded that no hearing was
necessary because the defendant had knowingly and voluntarily
waived his Miranda rights and agreed to speak to the police.
For the reasons earlier discussed in the text, however, we do
not consider the defendant's waiver of Miranda rights to be
dispositive of his ineffective assistance claim.
37
determine whether the defendant's statement to the police on
that date was the direct consequence of Gilden's deficient legal
advice, or whether, independently of Gilden's advice, the
defendant made his own voluntary and knowing decision to waive
his right against self-incrimination and to speak to the
police.28 If the judge finds that the defendant gave his
statement directly because of Gilden's deficient advice, the
defendant's first motion for a new trial should be allowed; if
the judge, however, determines that the defendant independently
decided to give his statement, the motion should be denied.
We turn to the defendant's remaining arguments.
3. Prosecutorial misconduct. The defendant contends that
his due process rights were violated because the prosecutor in
her closing argument misused the facts at trial to such an
extent that she rendered the trial fundamentally unfair. He
argues that in her closing, the prosecutor misrepresented "the
most exculpatory" set of facts in the case, which he claims
included (1) Defrancesco's observation of a vehicle driving away
from the scene of the shooting with its lights off; (2) Officer
Reardon's stop of a vehicle matching the description soon
thereafter and the immediate flight taken by two of the
28
At the evidentiary hearing, we anticipate that the judge
will hear testimony from the defendant and Gilden, who appears
to continue to be an active member of the Massachusetts bar, and
perhaps Hunt, if he is available.
38
automobile's occupants; and (3) Defrancesco's inspection of the
vehicle stopped by Reardon to determine whether it was the same
one -- which, in fact, Defrancesco had stated it was, as shown
by the recently discovered second page of Hunt's written summary
of his interview of Defrancesco.29 The defendant's claim in this
regard is that the prosecutor first misrepresented specific
points of evidence concerning these facts, culminating in her
misleading statement that the automobile that Reardon stopped
"had nothing to do with this [case]." We disagree that this
statement was improper. What the evidence showed was that,
after stopping the vehicle, Reardon found no evidence of a gun
or any shell casings. It was also shown that the police
eventually determined the identities of the passengers, but
there was no evidence suggesting that the passengers had
anything to do with the shooting of Woods and Gibbs. Based on
this information, it was not improper for the prosecutor to draw
and argue the inference that the vehicle had nothing to do with
the shooting. See Commonwealth v. Murchison, 418 Mass. 58, 59-
60 (1994).
The defendant also contends that the reason Defrancesco
could not be located and therefore could not be called to
testify about the vehicle leaving the scene of the shooting was
that the prosecutor negligently or intentionally suppressed
29
See note 7, supra.
39
evidence of the fact that Defrancesco had a criminal record,
which might have led to information concerning Defrancesco's
then current address or location. The defendant analogizes this
to those situations in which a prosecutor "exploit[s] the
absence of evidence that had been excluded at his request."
Commonwealth v. Carroll, 439 Mass. 547, 555 (2003).
The record does not support the defendant's argument.
Rather, it reflects that the prosecutor had tried a number of
times to subpoena Defrancesco to appear at the trial, with no
success.30 It is true that Defrancesco actually had three
pending charges in the Brockton Division of the District Court
Department at the time of the trial in this case, presumably
being prosecuted by others in the prosecutor's office. It also
might be the case that an examination of case records associated
with those charges may have revealed a more accurate address for
30
With respect to locating Defrancesco, the record contains
the following. On the first day of trial, the prosecutor told
the trial judge and the defense that she had summonsed
DeFrancesco, but had not heard from her. Two days later, the
prosecutor indicated that she had summonsed Defrancesco again,
but could not ensure Defrancesco's appearance because she was
not sure she had located the correct woman. On the fourth day
of trial, the prosecutor stated that a State police trooper went
to the last known address of Defrancesco, but the house was
abandoned. The trooper then sought to find Defrancesco in the
registry of motor vehicles data base; a "Corrina Defrancesco"
was located in Taunton, and the prosecutor summonsed her there,
but there was no response. The prosecutor stated to the judge
that she did not believe Defrancesco had a criminal record,
meaning that she could not locate Defrancesco through a criminal
registry.
40
DeFrancesco than the ones used by the prosecutor in this case.
However, there is nothing in this record to indicate that the
prosecutor herself knew of these pending charges, and in the
absence of information showing that the charges had been entered
in a probation record for Defrancesco or some similar database,
we cannot say that she intentionally or negligently failed to
take appropriate steps to discover them. In fact, defense
counsel, with the assistance of an investigator, sought
unsuccessfully to locate Defrancesco throughout the trial.
The defendant also takes issue with the prosecutor's
statement during closing that Trooper Arnold, who testified on
behalf of the Commonwealth as an expert witness concerning
ballistics, opined that only one gun was used during the
shooting.31 We agree that the prosecutor's statement was
improper. During trial, the jury heard from Arnold that the
31
In her closing, the prosecutor stated:
"You also heard, ladies and gentlemen, from Trooper Arnold.
And Trooper Arnold, from his qualifications and his years
is definitely an expert. And what did Trooper Arnold tell
you, ladies and gentlemen? . . . Number one, Trooper
Arnold told you that the four casings in this case were the
same type, that they all had CCI-NR 9mm Luger written on
the bottom. . . . And the two projectiles were of the same
type, I believe the term was full metal jacket. . . . And
what did he tell you about these, ladies and gentlemen? He
told you that the projectile, the projectile of this type,
a full metal jacket projectile is only manufactured by CCI.
CCI. And what did that tell Trooper Arnold? What was his
opinion? That there was one gun. One gun. Not two, not
three, not four. One. That was his opinion. . ."
(emphasis added).
41
evidence was consistent with a single gun being used, but that
he could not say scientifically that this was the case.32 The
trial judge then instructed the prosecutor that she could not
elicit Arnold's opinion whether one gun had been used. Defense
counsel, however, did not object to the prosecutor's reference
in her closing to Arnold having an opinion that there was only
one gun; the question, therefore, is whether the prosecutor's
improper remark created a substantial likelihood of a
miscarriage of justice. It did not.
32
At trial, the following exchange took place following a
question by the prosecutor whether, from all the evidence at the
scene that he observed and the ballistic testing he performed,
the ballistic items taken from the scene were consistent with
one gun being used:
Trooper Arnold: "First of all, the microscopic comparison
of the four cartridge casings, with that I was able to
determine they were all fired by one individual weapon.
The microscopic comparison of the two spent projectiles I
was able to determine that they were all fired through the
same unknown barrel or same unknown weapon. Scientifically
I cannot tie those two spent projectiles and the four
cartridge casings together. In other words, without a
suspect weapon I can't scientifically say that one weapon
was used. However, examining -- physically examining and
doing some work on the projectiles, I can determine that
they are consistent with those cartridge casings
manufactured by CCI. The total metal jacketed projectile,
the only manufacturer that I've ever seen using that is
CCI" (emphasis added).
. . .
The prosecutor: "And is CCI the casings that were in this
case?"
Trooper Arnold: "Correct."
42
The trial judge instructed the jury that closing arguments
were not evidence and only facts in evidence could be considered
during deliberations. More significantly, as Arnold's quoted
testimony reflected (see note 32, supra), in his view, the
ballistics evidence in the case strongly supported a conclusion
that only one gun had been used, but Arnold could not so opine
as a matter of ballistics certainty. In the circumstances,
there appears to be little risk that the prosecutor's comment
improperly led the jury to accept a conclusion about Arnold's
opinions that was not supported by evidence properly before
them.
4. Right to a public trial. In his second motion for a
new trial, the defendant argued for the first time that his
Sixth Amendment right to a public trial was violated when his
brother and mother were prevented from entering the court room
during jury empanelment. "It is well settled that the violation
of a defendant's right to a public trial is structural error
requiring reversal." Commonwealth v. Wall, 469 Mass. 652, 672
(2014). Nevertheless, even structural error is subject to
waiver. Id. The third motion judge determined that the
defendant's failure to raise this issue in his first motion for
a new trial constituted waiver.
In Wall, we stated that "[w]here defense counsel did not
object to any alleged court room closure at trial, and the
43
defendant failed to raise the claim in his first motion for a
new trial, . . . the defendant's right to a public trial during
jury empanelment has been waived." Wall, 469 Mass. at 673. See
Commonwealth v. Morganti, 467 Mass. 96, 102-103, cert. denied,
135 S. Ct. 356 (2014); Commonwealth v. Alebord, 467 Mass. 106,
112-113, cert. denied, 134 S. Ct. 2830 (2014). The defendant
argues, however, that Wall is inapplicable to his case because
any waiver amounted to ineffective assistance of counsel.
Specifically, he asserts that trial counsel and counsel handling
his first motion for a new trial provided ineffective assistance
because they were unaware that exclusion of the public from jury
selection violated the defendant's Sixth Amendment right.33 This
ignorance of the law, the defendant claims, constituted
unreasonable performance requiring reversal of his convictions.
See Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014).
The defendant's argument fails. In light of our decisions
in Morganti and Alebord -- cases that, like this one, were tried
in the Superior Court in Brockton before 2007 -- there is little
if any basis to claim that either trial counsel or the
defendant's counsel at the time of his first motion for a new
33
Each counsel provided an affidavit in connection with the
defendant's second motion for a new trial admitting that he had
been unaware that the right to a public trial under the Sixth
Amendment to the United States Constitution extended to jury
empanelment.
44
trial was ineffective. See Morganti, 467 Mass. at 97-98, 103-
105. See also Alebord, 467 Mass. at 114.34
In any event, the defendant's claim of ineffective
assistance of counsel fails because he has not shown prejudice.
Where a defendant procedurally waives his Sixth Amendment public
trial claim, and later raises the claim as one of ineffective
assistance of counsel, as is the case here, "the defendant is
required to show prejudice from counsel's inadequate
performance" -- that is, a substantial likelihood of a
miscarriage of justice -- and "the presumption of prejudice that
would otherwise apply to a preserved claim of structural error
does not apply." Commonwealth v. LaChance, 469 Mass. 854, 856
(2014), cert. denied, 136 S. Ct. 317 (2015). See Commonwealth
v. Jackson, 471 Mass. 262, 268-269 (2015). The defendant has
not presented any evidence of prejudice, that is, evidence
34
We reject the defendant's suggestion that Hinton v.
Alabama, 134 S. Ct. 1081, 1089 (2014), overruled Morganti or
Alebord. In Hinton, supra at 1089, the United States Supreme
Court held that "[a]n attorney's ignorance of a point of law
that is fundamental to his case combined with his failure to
perform basic research on that point is a quintessential example
of unreasonable performance." In Hinton, the indigent
defendant's trial counsel failed to seek additional funds that
were available under State law to hire a legitimate firearms
expert in a death penalty case where the only evidence linking
the defendant to the crimes was ballistics testing from a
firearm. Id. at 1083-1087. The attorney's ignorance of the law
in Hinton went to the fundamental issue of the case. In
Morganti and Alebord, there was no evidence that the court room
closure was fundamental to the defendants' receipt of a fair
trial. The same is true in this case.
45
tending to show that closure of the court room during
empanelment may have had "an 'effect on the judgment,' or
undermine[d] our 'reliance on the outcome of the proceeding.'"
LaChance, supra at 859, quoting Strickland v. Washington, 466
U.S. 668, 691, 692 (1984). Nor do we find such evidence on
independent review. The defendant's Sixth Amendment public
trial claim therefore is waived, and his claim of ineffective
assistance of counsel for waiving his Sixth Amendment right
fails.
Conclusion. For the reasons discussed in this opinion, we
conclude as follows. With respect to the defendant's direct
appeal, the convictions of murder in the first degree and armed
assault with intent to murder are affirmed. With respect to the
defendant's appeal from the order denying his second motion for
a new trial, that order is affirmed. Finally, with respect to
the defendant's appeal from the order denying his first motion
for a new trial, that order is vacated, and the case is remanded
to the Superior Court for further proceedings consistent with
this opinion.
So ordered.