Commonwealth v. Andre Walker (September 21st, 2011)
Docket SJC-10470
Massachusetts Supreme Judicial Court
Facts: The defendant was convicted of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty by a Superior Court jury. The murder allegedly planned by the defendant was in retaliation for the murder of a member of the defendant’s gang by a rival gang in Dorchester. The defendant was in the lead car, followed by another car, when he opened fire on three people at an intersection. He then got out and continued firing on the victim who had been shot and was laying on the ground.
Issue #1: Defendant argues that he was denied the effective assistance of counsel. He provides different examples of the ineffectiveness of his counsel.
a) Defense counsel’s failure to file a motion to suppress Harrison’s (one of the witnesses) out-of-court identification of the suspects.
Defendant argues that the out-of-court identification was impermissibly suggestive and unreliable and a competent attorney would have moved to suppress. The court says that, even if filed, the motion would most likely not have been successful, and thus there was not a substantial likelihood of a miscarriage of justice
The detectives that conducted the identification procedure admittedly did not follow all the right protocol in an identification procedure. One question was whether a sequential lineup or simultaneous lineup should have been used, but the court says that there is not conclusive evidence that to suggest that the sequential display is so superior that if not used it is grounds for suppression of the testimony of the witness.
The defendant argues that another problem was that the photographic array was improper because it was composed entirely of suspects. The court does believe that an all-suspect array significantly increases the chances for a wrongful prosecution. Police should use an array with one suspect and the rest should be fillers. The court has suggested that there need to be 5 fillers for every suspect in a photographic array, but this is a new guidance. The court concludes that the array did not represent a substantial likelihood of a miscarriage of justice because the police did not decide on a suspect based on the identification, and the Commonwealth’s case was based on testimony from Clark, Dotson and Boyd (other gang members or people that were in contact with Walker).
b) Defense counsel’s failure to object to hearsay in Harrison’s out-of-court identification.
The court concludes that there was no error in admitting the testimony by the police officer, even though Harrison did not remember making some of the statements to the police officer. Defense counsel would have been overruled if he made an objection, therefore he was not ineffective for failing to object.
c) Defense counsel’s failure to object to the prosecutor’s closing argument pertaining to the Harrison testimony.
The defendant says that the prosecutor made some glaring mistakes when describing Harrison’s testimony. The judge correctly concluded that the prosecutor was referring to Harrison’s pretrial identification of the photographs, not to the trial testimony, and a reasonable jury would have understood this. Therefore, since the defense counsel’s objection would have been overruled, not making the objection did not constitute ineffective counsel.
d) Defense counsel’s failure to introduce evidence of third-party confessions.
There were inconsistencies in the statements one of the witnesses made (Dotson). In the direct testimony he said that he had heard around the streets that Green’s brothers had done the shooting, but on cross-examination of the detective, he said that Dotson had told him that statement was not true. The court reasons that by not pressing the issue, defense counsel was able to leave the jury with the impression that he had said the word in the streets was that the Green borthers had done the murder. But if the defense counsel had pressed the point, she risked getting Dotson to say that that which Dotson had admitted, that the Green brothers had done the murder, was not true. Therefore it was not unreasonable for the defense counsel to not pursue the cross-examination of Dotson.
Conclusion: Affirm the denial of the motion for a new trial; the court found that all the claims of ineffective assistance of counsel had no merit.
Issue #2: Was the judge reasonable in excluding from the evidence the testimony of a police officer from the scene who had been told by an unknown black male that two Hispanic males had left the suspect’s car and possibly dropped something up the street?
Yes. It is not clear whether the unknown black male personally observed the crime, or whether he could really see and distinguish the suspects, and there was no other information about the observer. The judge acted in his discretion in limiting the use of the evidence.
Issue #3: Did the judge err by permitting evidence that said the defendant sold crack cocaine?
No. Evidence of prior bad acts may be admitted where it is not unduly prejudicial and is relevant in establishing motive, intent, identity, pattern of operation etc. The judge did not abuse his discretion by admitting this testimony.
Conclusion: The court affirms the defendant’s judgments of conviction, and the motion for a new trial is denied.
Prepared by KP
