NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Scott, 463 Mass. 561 (2012)

CONTRIBUTING EDITOR: MEAGHAN E. HATCH I. Procedural History

A Superior Court jury convicted the defendant of murder in the first degree, armed assault with intent to kill, assaulting a police officer with a dangerous weapon, and various gun charges.1 The defendant appealed the convictions on several grounds.2 II. Facts The defendant, Darryl Scott, left a movie theatre with Victoria Fernandes, his pregnant girlfriend, and passed three individuals with whom the defendant had an altercation with two weeks prior.3 The defendant instructed Fernandes to keep walking, which she did.4 The defendant testified that he saw one of the men reach for what he thought was a weapon, and he therefore reached for and fired his gun, killing one of the men.5 The defendant was not arrested until three months later when the police observed a drug transaction the defendant was involved in.6 When the officers approached, the defendant ran.7 After being cornered, the defendant made several comments about his life being over and not being able to go to prison for a long time while holding a gun to his head.8 The police told him that he would only be charged with a firearms offense with

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Commonwealth v. Scott, 463 Mass. 561, 562 (2012). Id. Id. at 563. Id. Id. at 567. Id. at 564. Commonwealth v. Scott, supra at 564. Id. at 564-565.

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jail time of no more than a year.9 The defendant eventually surrendered.10The police recovered the gun and matched it to the gun used in the murder three months before the second incident. III. Issues Presented 1. Whether the trial judge abused his discretion by allowing the prosecutions peremptory challenge of a Black woman?11 2. Whether the judge erred in denying the defendant a new trial after the prosecution questioned him regarding his juvenile record?12 3. Whether statements made during the prosecutions closing argument amounted to prejudicial error that would require a new trial?13 4. Whether the trial judge erred in denying defendants request for a jury instruction on defense of another person?14 5. Whether the trial court erred in denying the defendants motion for a new trial for ineffective assistance of counsel without conducting an evidentiary hearing?15 6. Whether defendant was entitled to a new trial or a reduction of the murder verdict?16 IV. Holdings and Reasoning 1. Peremptory Challenge: During the jury empanelment process, the prosecution challenged the empanelment of a Black male, a Black female, and a Hispanic female; the judge only allowed the challenge of the Black female, after noting that there was no racial motivation behind the challenge.17 The Court held that the judge did not abuse his discretion by allowing the peremptory challenge of a Black woman or that there was error because the jury did not represent a cross section of the community.18 Although a defendant may rebut the presumption that a peremptory challenge is proper, the defendant here did not meet his burden of establishing prima facie discrimination because there was no pattern of discrimination in the prosecutors use of peremptory

Id. at 565. Id. at 566. 11 Id. at 568-569. 12 Id. 571-572. 13 Commonwealth v. Scott, supra at 573. 14 Id. at 575. 15 Id. at 577. 16 Id. at 579. 17 Id. at 569-570. 18 Id. at 571.
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challenges.19 2. Juvenile Record: The Court held that, while testimony about defendants juvenile record solicited by the prosecutor was improper, there was no prejudicial error warranting a new trial because the trial judge immediately struck the testimony after it was given and instructed the jury not to consider it as evidence.20 Evidence of prior convictions . . . may be admitted to rebut specific portions of the defendants testimony.21 However, the Court noted that the prosecutor should not have continued to ask the defendant about the record without having or attempting to obtain certified copies of the records.22 The Court held that there was no prejudice to the defendant warranting a new trial.23 3. Prosecutors Closing Argument: The Court held that portions of the prosecutors closing argument may have exceeded the bounds of permissible argument; however, those statements were unlikely to affect the jurys verdict.24 Specifically, the Court held that the prosecutors reference to the statements about his life being over when he was cornered by the police was a permissible statement as the jury could reasonably make the inference that the defendant made the statement because he was aware of his culpability for the homicide.25 The defendant also argued that the prosecutor made personal attacks on defense counsel. The Court held that some of the prosecutors personal comments about defense counsel went beyond the bounds of proper argument; but because the statements were about defense counsel and not defendants character, there was little to no impact on the jury.26 Lastly, the defendant argued that the prosecutor made statements that were improper because the comments shifted the burden of proof to the defendant; the Court concluded that these statements were proper since the prosecutor discussed the heavy burden placed on the prosecution and then restated the evidence presented in the case.27 4. Jury Instruction: The defendant argued that the trial judge erred by denying defendants motion for instruction on defense of another.28 After an inquiry into the rule governing the defense of another, the Court held

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Commonwealth v. Scott, supra at 570-571. Id. at 572-573. Id. at 573, quoting Commonwealth v. Roderick, 429 Mass. 271, 274 (1999). Id. at 573, citing Commonwealth v. Saunders, 50 Mass. App. Ct. 865, 868-869 (2001). Id. Id. at 575. Commonwealth v. Scott, supra at 573-574. Id. at 574, citing Commonwealth v. Mitchell, 428 Mass. 852, 857 (1999). Id. at 574-575. Id. at 575.

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that it is not reasonable for the defendant to have believed that Fernandes was under attack. The defendant stated that his girlfriend had walked ahead and that he could no longer see her when he began shooting. 29 5. Denial of Motion for New Trial: The Court held that the judge did not err in denying the defendants request for a new trial, as there was not an error during the trial that likely influenced the jurys decision.30 The Court noted that the trial judge should not be reversed unless the trial was manifestly unjust or if the trial was infected with prejudicial constitutional error.31 The defendant argued that he was entitled to another trial on the ground of ineffective assistance of counsel because his attorney failed to file a motion to suppress defendants statements to the police and to adequately present a defense.32 The Court did not find that defense counsel was ineffective: counsel moved to suppress the identification and firearm evidence; he conducted lengthy investigations; he argued rigorously during closing arguments that the police investigation was inadequate; and there was no indication that the motion to suppress the defendants statements would have been successful had counsel filed the motion.33 6. Review per G. L. c. 278, 33E: The Court stated that the jury could have found the defendants evidence that he acted in self-defense compelling; however, they were not required to believe the evidence.34 Weighing the evidence as the jury did is consistent with a verdict of murder in the first degree on a theory of deliberate premeditation.35 Thus, there was no reason to order a new trial or reduce the defendants murder conviction.36

Id. at 576-577. Id. at 577, citing Commonwealth v. Mercado, 452 Mass. 662, 666 (2008). 31 Commonwealth v. Scott, supra at 577, quoting Commonwealth v. Espada, 450 Mass. 687, 697 (2008).
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Id. at 577. Id. at 578-579. Id. at 578-579. Id. at 579-580. See also G. L. c. 278, 33E. Id. at 579.