Commonwealth of Massachusetts

Supreme Judicial Court

Suffolk County 2004 Sitting

No. 09058

_________________________________________

Commonwealth

v.

Roger L. Dew, Jr.
__________________________________________

On Appeal From A Judgment Of The
Superior Court Of Suffolk County

__________________________________________

Brief And Record Appendix
For The Defendant/Appellant

____________________________________________

Dana A. Curhan, Esq.
B.B.O. # 544250
101 Arch Street
Suite 305
Boston, MA 02110
(617) 261-3800


February 2004

Table of Contents

Table of Authorities

A. Cases

B. Other Authorities

Issues Presented

Statement of the Case

Statement of Facts

A. The Commonwealth's Case

B. The Defendant's Caze

Summary of the Argument

Argument

I. The Evidence Seized From The Third
Floor Apartment At 51 Stanwood Street
Must Be Suppressed Where The Police
Lacked Probable Cause To Believe The
Defendant Lived In Or Otherwise Had
Access To That Unit, And Where They
Otherwise Lacked Probable Cause To
Believe That Evidence Of A Crime
Would Be Found Therein

A. The Defendant's Right To Challenge
The Constitutional Violation

B. The Police Lacked Probable Cause
To Search The Third Floor Unit Of
51 Stanwood Street

II. The Defendant Should Have Been Allowed
To Probe The Exculpatory Nature Of A Drug
Related Murder That Occurred In The Same
Rooming House Just Two Days Before The
Murder In This Case And Should Have Been
Granted Full Discovery Of The Facts
Surrounding That Killing

III. The Trial Court Deprived The Defendant
Of His Constitutional Right To Present
A Defense By Refusing To Permit Him To
Testify That He Was Not A Drug Dealer
But Was Merely A Drug User Who Would
Purchase Drugs From James “Popcorn”
Whitley And That He Never Sold Drugs
To Whitley

IV. The Trial Judge Erred In Excluding
Evidence That The Defendant's Cousin
Anthony Dew Admitted That He, Not The
Defendant, Shot And Killed Ovid McIver

V. The Prosecutor Impermissibly Prejudiced
The Defendant By Referring To Him As A
Known “Gun-Carrying Crack Dealer” During
His Closing Statement

VI. Pursuant To G.L. C. 278, §33E, This
Court Should Reduce The Verdict

VII. Conclusion

Addendum

Record Appendix

Issues Presented

1. Whether the evidence seized from the third floor apartment at 51 Stanwood Street must be suppressed where the police lacked probable cause to believe the defendant lived in or otherwise had access to that unit, and where they otherwise lacked probable cause to believe that evidence of a crime would be found therein.

2. Whether the defendant should have been allowed to probe the exculpatory nature of a drug related murder that occurred in the same rooming house just two days before the murder in this case and should have been granted full discovery of the facts surrounding that earlier killing.

3. Whether the trial court deprived the defendant of his constitutional right to present a defense by refusing to permit him to testify that he was merely a drug user who would purchase drugs from James “Popcorn” Whitley and was not a drug dealer, as the Commonwealth's witnesses had testified.

4. Whether the trial judge erred in excluding evidence that the defendant's cousin admitted that he, not the defendant, shot and killed the victim.

5. Whether the prosecutor impermissibly prejudiced the defendant by referring to him as a known “gun-carrying crack dealer” during his closing statement.

6. Whether a reduction in the verdict to manslaughter or second-degree murder pursuant to G.L. c. 278, § 33E would more accurately reflect the state of the evidence and would be more consonant with justice.

Statement of the Case

On April 29, 1999, a Suffolk County grand jury returned indictments charging the defendant Roger L. Dew, Jr., with murder and possession of a firearm without a license. (Indictment Nos. 99-10449-001 & 002). In May of 1999, the grand jury added a third count charging the defendant with armed robbery (Indictment No. 99-10449-003). [R. App. 2-3, 12-14] . On May 5, 1999, the defendant entered a plea of not guilty to the murder and possession of a firearm charges. On June 1, 1999, the defendant entered a plea of not guilty to the armed robbery charge. [R. App. 2-3].

Prior to the start of trial, the parties filed and the court considered various motions not relevant to the instant appeal. [R. App. 3-7].

On July 30, 1999, the defendant filed a motion for complete disclosure of grand jury minutes. On February 16, 2000, the Commonwealth filed motions to impound and for a discovery protective order. On March 10, 2000, the trial court, Gershengorn, J., issued a memorandum of decision and order denying the defendant's motion and allowing the Commonwealth's motions. The court also issued an impoundment order on that date. [R. App. 3, 15-24]. On January 14, 2002, the Commonwealth submitted the defendant's motion, the Commonwealth's two motions, the memorandum of decision, and the impoundment order in support of a motion in limine re: evidence of January 28, 1999 murder at 146 Stanwood Street. [R. App. 6, 27].

On June 19, 2001, the defendant filed separate motions to suppress the fruits of unlawful searches of 51 Stanwood Street and of a motor vehicle. A hearing was held before McDaniel, J., on August 27, 2001. Judge McDaniel issued a memorandum of decision and order denying the motions on October 9, 2001. [R. App. 4-5, 38-48].

On January 10 and 11, 2002, the parties filed and the court considered a number of motions in limine, two of which will be discussed in the argument sections below. [R. App. 6, 49-50]. Trial commenced before Judge McDaniel and a jury on January 10, 2002. At the conclusion of the Commonwealth's evidence and of the defendant's evidence, the defendant filed and renewed a motion for a required finding of not guilty. [Tr. 9, 226-228; Tr. 10, 93]. Judge McDaniel denied the motions. [Tr. 9, 228; Tr. 10, 93; R. App. 7-8].
On January 24, 2002, after the Commonwealth's closing statement, the defendant orally moved for a mistrial. Judge McDaniel denied the motion. The following day, he renewed that motion in writing. Judge McDaniel denied the renewed motion. [R. App. 8, 49-51].

On January 25, 2002, the jury returned verdicts of guilty on all three counts. The jury based the first-degree murder conviction on the theory of felony murder and declined to find deliberate premeditation. [R. App. 8, 52-54]. Judge McDaniel imposed the mandatory life sentence on the murder count and a concurrent four to five year sentence on the firearm charge. He dismissed the armed robbery count as duplicative of the murder count, since the armed robbery was the offense underlying the felony murder conviction. [R. App. 8].
The defendant filed a timely notice of appeal on January 29, 2002. [R. App. 8, 56].

The case was entered on the docket of this court on July 7, 2003.

Statement of Facts

A. The Commonwealth's Case

Shortly before 3:00 on the morning of January 30, 1999, Ovid McIver was shot once in the stomach at close range at 146 Stanwood Street in Roxbury. [Tr. 6, 153; Tr. 7, 8, 10; Tr. 9, 53, 72]. The bullet entered McIver's body in a downward trajectory, severing a major artery and fracturing his hip before stopping. [Tr. 6, 151-152; Tr. 8, 68-77]. McIver stumbled out of the doorway and fell on the sidewalk in front of the house. [Tr. 3, 191; Tr. 6, 5, 66]. Emergency medical technicians responded and transported him to the hospital. [Tr. 6, 149-150]. McIver died from the gunshot wound later that morning. [Tr. 7, 50].

Viewed in the light most favorable to the Commonwealth, the events leading up to McIver's death were as follows. At around 1:00 A.M. on January 30th, Hussein Mucmin, Linda Bennett and McIver, met and drove to 146 Stanwood Street to buy some crack cocaine. [Tr. 4, 56-58; Tr. 5, 145]. Witnesses described 146 Stanwood Street as a triple-decker, configured as a rooming house, with multiple occupants on each of the three floors. [Tr. 3, 120, 123, 142, 167-168; Tr. 4, 54; Tr. 5, 12]. Mucmin parked in front of the building behind a gray Celebrity with faded paint. [Tr. 5, 147-148]. Mucmin and Bennett went inside and upstairs. No one could recall if McIver accompanied them or remained in the car. In a room on the second floor, they met James “Popcorn” Whitley. [Tr. 3, 129, 136; Tr. 4, 59-60; Tr. 5, 11, 19-21, 146, 150]. In the room with Whitley was the defendant Roger Dew, referred to by Whitley as “James”. The defendant had been dealing crack cocaine out of 146 Stanwood Street that day and had done so numerous times prior to that day. [Tr. 3, 171-174; Tr. 4, 61-63; Tr. 5, 14-16, 21, 151-152].

After some discussion of what Mucmin and Bennett wanted, Whitley asked the defendant if he had any crack left. [Tr. 5, 24]. Mucmin flashed a roll of bills and told the defendant how much he wanted. [Tr. 4, 66; Tr. 5, 25-27, 154-161]. The defendant told him he did not have much with him and could not change any large bills. He left the building, promising to return with more crack and some smaller bills. [Tr. 4, 66; Tr. 5, 28-29, 161].

After about fifteen minutes, Mucmin, Bennett, Whitley, and McIver tired of waiting for the defendant. [Tr. 4, 67; Tr. 5, 36-37]. Whitley felt uneasy about the situation and felt that something bad was going to happen. He insisted that they leave right away before the defendant returned. [Tr. 7, 251]. The four of them went outside. [Tr. 4, 68; Tr. 5, 36-37]. Mucmin entered his car, followed by Whitley and Bennett. However, as McIver lingered on the porch, the defendant returned and went up the front stairs. [Tr. 4, 68; Tr. 5, 37, 176-177]. Mucmin left his car and went up to the porch, hoping to convince McIver to leave with him. [Tr. 5, 178-180]. McIver insisted on completing the drug deal. He and Mucmin accompanied the defendant inside the front vestibule. [Tr. 4, 68-69; Tr. 5, 40, 180-182].

The door closed behind them, leaving the others outside. [Tr. 4, 68-69; Tr. 5, 40, 182]. Once inside, the defendant pulled out a bluish nine-millimeter automatic handgun and held it to Mucmin's right temple. [Tr. 5, 183-189]. He demanded that Mucmin hand over his money. [Tr. 5, 190]. Mucmin did so. [Tr. 5, 190]. The defendant asked Mucmin if he was a cop, to which Mucmin answered “no”. [Tr. 5, 191]. As the defendant backed away toward the stairs, McIver lunged at him. [Tr. 5, 192]. McIver and the defendant struggled over the gun at some length. As Mucmin ran from the vestibule, he saw sparks and heard a single shot. [Tr. 5, 195-202].

When they heard the gunshot, Bennett and Whitley ran down Stanwood Street toward Columbia Road. [Tr. 4, 71-76; Tr. 5, 43]. Whitley observed Mucmin running from the building but did not see McIver. [Tr. 5, 44, 202-203]. From an auto repair shop on Columbia Road, either “Popcorn” or Mucmin called “911”. [Tr. 4, 73, 75, 113-114; Tr. 5, 47-49, 205-207].

Margo Ortiz, who lived on the second floor of 146 Stanwood Street, heard a car door slam outside and a car leave quickly. [Tr. 4, 46]. She had seen a gray car with faded paint parked outside earlier that evening and recognized it as a car the defendant sometimes drove. [Tr. 3, 201, 204; Tr. 4, 45-46]. Ortiz ran downstairs. When she saw McIver on the sidewalk, she ran upstairs to call “911” on “Popcorn's” telephone. [Tr. 4, 41-43].

Bennett and Whitley waited on the corner until they saw the police come and then returned to the scene. [Tr. 3, 192, 245; Tr. 4, 77; Tr. 5, 48-49, 212]. On the way back to Stanwood Street, Mucmin saw a black male driving a faded gray car from Devon Street and crossing Columbia Street. [Tr. 5, 209-210]. By the time they arrived, the police and an ambulance had responded. The police were securing the scene and identifying witnesses. [Tr. 4, 77; Tr. 5, 49, 213; Tr. 6, 65]. The gray car Mucmin had previously seen in front of the house was now gone. [Tr. 5, 214].

The police interviewed witnesses both at the scene and at the Area B2 Police Station in Roxbury, [Tr. 3, 144, 196; Tr. 4, 77; Tr. 5, 49, 214; Tr. 6, 70, 163-164]. At the scene, Whitely described “James,” noting his physical characteristics, that his hair was braided, and that he was wearing a black knit cap. [Tr. 5, 50-52; Tr. 6, 167-168, 271]. Bennett described the shooter as wearing a black knit cap and a black leather jacket. [Tr. 4, 120, 161; Tr. 6, 171, 274]. Mucmin noted the shooter's cornrow braids, fishing hat and slim build. He described his jacket as a gray or light blue two-tone parka. [Tr. 5, 215, 220]. Margo Ortiz described the shooter's braided hair. She stated that the defendant was wearing an olive down jacket and baggy jeans. [Tr. 6, 72]. Her roommate Frizell Seldon confirmed this description. [Tr. 6, 73].

Whitley identified the defendant's vehicle as “dark gray” Chevy Celebrity and confirmed that it was parked in front of 146 Stanwood Street on the night of January 30. [Tr. 5, 59-60; Tr. 6, 168]. Mucmin stated that the shooter fled in an older model gray Chevy Celebrity. [Tr. 6, 220]. Bennett later told the police that she saw the defendant in a gray car parked on Stanwood Street the day after the shooting. She described the car as the same one that was parked in front of 146 Stanwood Street on the night of the shooting. [Tr. 4, 80; Tr. 6, 248]. She wrote the plate number down and gave it to her sister, who then called the police. [Tr. 4, 81; Tr. 6, 248, 277-278]. The police determined that this plate belonged to a gray 1988 Buick Century. [Tr. 7, 53]. A Buick Century and a Chevrolet Celebrity are almost identical in appearance. [Tr. 7, 55; Tr. 8, 56-58].

Detectives arriving on the scene took a number of photographs and gathered various pieces of physical evidence. [Tr. 6, 113-115, 120-121, 222, 225-226, 264-265; Tr. 7, 17, 22, 25-26]. They observed and photographed two sets of footprints in the snow leading from the back door into the back yard but did not find any useful details from which they could make a casting. [Tr. 6, 120-122, 126; Tr. 7, 22-23, 25-26, 30; Tr. 8, 229, 235]. Later that morning, they gathered additional evidence from 146 Stanwood Street pursuant to a search warrant, including a spent .380-caliber shell casing at the base of the stairs. [Tr. 5, 29-31; Tr. 6, 270; Tr. 7, 18-20, 22, 24, 32-33, 37, 39-42, 44-47, 119-120; Tr. 8, 115-116, 242].

On February 11, 1999, Officer Kevin Yalmokas of the Boston Police Department stopped the defendant for speeding. The defendant was driving a gray Buick Century with the same license plate number described by Bennett. [Tr. 7, 67; Tr. 8, 26-29]. Yalmokas stopped the defendant a second time on February 17, 1999, again driving the same Buick. [Tr. 8, 35-37].

On February 13, 1999, Mucmin identified the defendant from a photographic array. [Tr. 5, 217-219; Tr. 6, 281-282; Tr. 7, 66-67]. Other witnesses who viewed the photographic array on the same day identified the defendant as someone they knew as “James.” [Tr. 3, 130-131, 145, 160, 171, 182-183, 193, 219; Tr. 5, 21, 56-58; Tr. 7, 64-65]. Thereafter, a warrant issued for the defendant's arrest. A magistrate also issued a search warrant authorizing the search of the defendant's home at 51 Stanwood Street. [Tr. 7, 68]. During the execution of the search warrant on February 19, 1999, the police discovered that a large number of the defendant's relatives lived in the building. About ten people lived on the first floor, and an equal number lived on the second floor. Several others lived on the third floor. [Tr. 7, 73-74; Tr. 8, 39]. They found the defendant in a third floor bedroom with a baby and Latoya Jackson, the baby's mother. They arrested him. [Tr. 7, 82-83, 103]. They observed and photographed a plate with a razor and plastic bags on top of a dresser in that room. [Tr. 7,103]. They also seized a number of items in that room, including clothing and shoes that tested positive for blood. [Tr. 7, 91-110; Tr. 8, 7; Tr. 9, 60-65, 75]. The police submitted a pair of boots and a pair of socks for further testing. DNA tests performed excluded both McIver and the defendant as possible sources of the blood. [Tr. 9, 132].

In a second bedroom, the police found a blue and white cooler containing personal identification cards in the name of Samuel Dew, a spent .380-caliber shell casing, and a live .380-caliber bullet. [Tr. 7, 112; Tr. 8, 11]. A police ballistics expert compared the spent shell casing with the one found at 146 Stanwood Street and determined that they were consistent with having been fired from the same gun. [Tr. 8, 169].

The police also seized a gray Buick Century pursuant to a separate search warrant. [Tr. 7, 60]. The paint on the roof was very faded, and the license plate number matched the number that Bennett had reported to the police. [Tr. 7, 61].

After his arrest, a blood sample was drawn from the defendant. [Tr. 9, 158-159]. DNA testing was performed on a cigarette butt found at 146 Stanwood Street. [Tr. 8, 247, 251]. The test could not exclude the defendant as a possible source of the DNA found on the cigarette. [Tr. 9, 125, 137].

B. The Defendant's Case

The defendant and Latoya Jackson both testified that at the time that Ovid McIver was killed they were with each other and their baby daughter. Earlier that evening, they had visited Jackson's aunt on Washington Street. They left at about 12:45 A.M. and started walking home, since they did not have a car. It was so cold that part way home they hailed a cab. On the way home, the cab tried to turn down Stanwood Street but found a police car blocking the road. When they finally arrived home, they watched some TV and went to bed. [Tr. 9, 243, 246, 254-256, 276, 279, 282-283; Tr. 10, 65, 67-68, 89, 92]. The defendant also testified that the gray Buick he had been driving when the police stopped him belonged to his brother's girlfriend. He did not have access to the car on the night of the shooting. [Tr. 10, 70-72, 80, 89].

The defendant described his cousin, Anthony Dew, was also known by the nickname “Howzer”. [Tr. 10, 50]. He also testified that he kept no belongings in Samuel Dew's room on the third floor of 51 Stanwood Street. [Tr. 10, 53]. The defendant began using drugs at some point, starting with marijuana and moving on to cocaine in 1997. Prior to January 30, 1999, he had been to 146 Stanwood Street. He knew “Popcorn” from that address, and Popcorn knew him as “Rocky.” [Tr. 10, 54-60].

Jackson testified that the defendant's former girlfriend, whom she only knew by the nickname “Babygirl”, had attempted to blackmail her. [Tr. 9, 260-262, 297; Tr. 10, 96]. Babygirl threatened to kill her and her baby with a gun that she had gotten from the defendant's brother Dedric Dew. She further warned that this gun had been used in a murder and that she would turn it over to police in an effort to frame the defendant unless Jackson gave her large sums of money. [Tr. 9, 302-304, 308, 313; Tr. 10, 97]. Jackson testified that she had seen a gun in Dedric's possession and that although she had seen the defendant in the same room with this gun, he never handled it. [Tr. 9, 257, 301]. The defendant confirmed that Dedric had a gun. [Tr. 10, 78]. As a result of these threats, Jackson took money from the bank where she worked. [Tr. 9, 295-296, 300]. When her theft was discovered, she told the police and the bank about the threats she was facing. [Tr. 9, 307-308, 314; Tr. 10, 96].

Summary of the Argument

1. At most, the search warrant affidavit provided probable cause to search the defendant's room on the first floor of 51 Stanwood Street. Nothing in the affidavit connected the defendant to the third floor where the incriminating evidence was found, nor did it establish that incriminating evidence would be found there. The evidence found on the third floor must be suppressed. [Pages 19-30].

2. The judge's refusal to permit the defendant to offer evidence or question witnesses about a drug related murder that occurred in the same rooming house just two days before the murder violated the defendant's constitutional right to present his theory of defense. The judge compounded the error by permitting the Commonwealth to redact from the grand jury minutes and withhold from discovery evidence relating to the earlier murder. [Pages 31-35].

3. The judge deprived the defendant of his constitutional right to present a key theory of defense by refusing to permit him to testify that he was simply a drug user and not a drug dealer as the Commonwealth's witnesses testified. [Pages 36-39].

4. The trial judge deprived the defendant of his constitutional right to offer evidence that someone else had confessed to the killing. The person alleged to have made the statement was unavailable as a matter of law, the statement was very much against his penal interests, and there is evidence corroborating that the statement was actually made. [Pages 40-44].

5. The prosecutor impermissibly prejudiced the defense by referring to the defendant as a known “gun-carrying crack dealer” during his closing statement. The prosecutor's comments were not supported by the evidence and were highly inflammatory. [Pages 45-46].

6. Other factors in the record support a reduction of the verdict pursuant to G.L. c. 278, § 33E. [Pages 47-48].

Argument

I. The Evidence Seized From The Third Floor Apartment At 51 Stanwood Street Must Be Suppressed Where The Police Lacked Probable Cause To Believe The Defendant Lived In Or Otherwise Had Access To That Unit, And Where They Otherwise Lacked Probable Cause To Believe That Evidence Of A Crime Would Be Found Therein

In this case, the police applied for a warrant permitting them to search 51 Stanwood Street for evidence relating to the shooting of Ovid McIver. Prior to applying for the warrant, the police knew that 51 Stanwood Street contained three separate units. They also had information that the defendant lived in Unit 1 on the first floor, that various relatives lived in the other two units, and that others who apparently were unrelated to the defendant also lived in the upper units. The affiant inferred that because the defendant was related to several occupants of the other units, and because he commented that his family had the whole building, he had access to all three units. The affiant therefore requested, and the magistrate issued, a warrant to search all three units, as well as the common areas of the building. Ultimately, the police seized clothing and other pieces of evidence from rooms on the third floor apartment. As noted above, the most damaging pieces of evidence found were the bullet and shell casing found in Samuel Dew's room, the latter of which was consistent with having been fired from the murder weapon. As the defendant argued in support of his motion to suppress, to the extent that the warrant authorized the search of private rooms in apartments other than the one the defendant was believed to have occupied, it was overbroad. In fact, it could properly be characterized as a general warrant, impermissible under the constitutions of the Commonwealth and the United States. Further, because the police had no information suggesting that the defendant occupied or had access to many of the areas searched, they lacked probable cause to believe that the evidence sought would be found in those locations. At the very least, the defendant should have been entitled to suppression of any and all evidence found in locations other than the portions of the first floor apartment under his direct control and any common areas of the building to which he may have had access.

A. The Defendant's Right To Challenge The Constitutional Violation

This court has adopted an automatic standing rule that permits a defendant to challenge the illegal seizure of evidence even where the challenged police action violated the rights of a third party. See Commonwealth v. Amendola, 406 Mass. 592, 601 (1990). See also Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). The police also alleged that the defendant occupied or had access to all of the areas searched, which would establish his expectation of privacy in those areas and his right to object to the search. Even if the defendant did not have an expectation of privacy in the areas searched, as discussed more fully below, where the warrant constituted an overbroad general warrant, he may properly challenge the validity of the entire warrant. Finally, this court has recognized that “an individual [may] gain standing to challenge the search of another, not to protect any reasonable expectation of privacy, but to deter police misconduct” where “the police had intentionally engaged in a violation of someone else's constitutional rights in order to obtain evidence against the defendant[].” Commonwealth v. Price, 408 Mass. 668, 673 (1990). See also Commonwealth v. Scardamaglia, 410 Mass. 375, 378 (1991); Commonwealth v. Manning, 406 Mass. 425, 429 (1990); United States v. Chiavola, 744 F.2d, 1271, 1273-1274 (7th Cir. 1984). In this case, the police knew or obviously should have known that others living in at the address in question had exclusive control over various rooms in the building. Even after determining that the defendant did not have full access to areas of the building, they nevertheless searched rooms that obviously belonged to others, such as Samuel Dew. Their intentional violation of the rights of others in order to obtain evidence against the defendant clearly implicates principles of “target standing” and gives the defendant the right to challenge the unlawful police action. See Id.

B. The Police Lacked Probable Cause To Search The Third Floor Unit Of 51 Stanwood Street

In order to justify the search of a suspect's dwelling, the Fourth Amendment and art. 14 of the Massachusetts Declaration of Rights require a demonstration of probable cause to believe that evidence of criminal activity will be found in the location identified in the warrant. More specifically, “[a]n affidavit must contain enough information for an issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues.” Commonwealth v. Cinelli, 389 Mass. 197, 213 (1983), citing Commonwealth v. Cefalo, 381 Mass. 319, 328-329 (1980).

Where the place to be searched is a room or apartment located within a multiple-occupancy structure, the existence of probable cause to search a single room or apartment does not justify the search of every room or unit within the building. In particular, where the police seek to search an apartment or room occupied by a named individual, “if the officers had known, or even if they should have known, that there were two separate dwelling units” at the address to be searched, they must exclude the dwellings of any others from the scope of the requested warrant. Maryland v. Garrison, 480 U.S. 79, 85 (1987); Commonwealth v. Dominguez, 57 Mass. App. Ct. 606, 609-610 (2003). A warrant that permits the search of units not occupied by the suspect is overbroad and void because of the likelihood that all units within the dwelling will be subjected to unjustified and indiscriminate search. Id. at 88. See Commonwealth v. Erickson, 14 Mass. App. Ct. 501, 504 (1982) (citations omitted). Of course, “[t]his rule is inapplicable to cases where probable cause exists to search the whole building or, in certain situations, where it is shown that general access to, and control over, all the building's subunits are available to building occupants. Id. (citations omitted); Commonwealth v. Dominguez, 57 Mass. App. Ct. at 609. Cf. Torres v. United States, 200 F.3d 179, 187 (3rd Cir. 1999); United States v. Butler, 71 F.3d 243, 249 (7th Cir. 1995) (Federal parallel to this legal aspect also holds that police may search the entire multi-unit complex if the suspect exercised dominion and control over the entire building or had access to the entire structure or if a multiunit building is used as a single entity). A warrant may also be upheld where the officers who applied for and executed a search warrant did not know or have reason to know prior to the actual search that the building was a multi-unit dwelling. See Commonwealth v. LaPlante, 416 Mass. 433, 439 (1993); Commonwealth v. Dominguez, 57 Mass. App. Ct. at 610. See also Maryland v. Garrison, 480 U.S. at 86-87; Commonwealth v. Luna, 410 Mass. 131, 136 (1991); Commonwealth v. Carrasco, 405 Mass. 316, 324 (1989).

In viewing the four corners of the affidavit, the police clearly knew that 51 Stanwood Street was a multi-unit dwelling. See Commonwealth v. O'Day, 440 Mass. 296, 298 (2003). Aside from the appearance of the building-a classic triple-decker in a neighborhood with many similar triple-deckers-they reviewed Boston Edison records. According to those records, electrical service was provided separately to the three units-Carla Dew on the first floor, Charlie Hunter on the second floor, and Walter Dew on the third floor). [R. App. 35 (Affidavit, ¶ 26)]. Contrast Commonwealth v. Dominguez, 57 Mass. App. Ct. at 610. The police also reviewed postal records, discovering that people with various last names received mail at the address-Dew, Hunter, Vert, Lakes, and Taste. [R. App. 35 (Affidavit, ¶ 29)]. Contrast Id. Various members of the extended Dew family, in providing their addresses, identified particular apartments or units as their homes. Dedric Dew listed his address with Social Security as Apartment 3 or “Third Floor.” [R. App. 36 (Affidavit, ¶ 30)]. Anthony Dew's arrest record listed his address as “Apartment #2.” [R. App. 33 (Affidavit, ¶ 17)]. “Clara Dew gave her address as 51 Stanwood Street #2.” [R. App. 35 (Affidavit, ¶ 27)]. In applying for his learner's permit, the defendant himself identified his address as 51 Stanwood Street, “Apt. 1”. [R. App. 35 (Affidavit, ¶ 25)]. The police also determined that there were three doorbells at the entrance to the building listing the names of residents. [R. App. 36 (Affidavit, ¶ 32)].

Having determined that the building contained three units, the police then had the obligation to identify which of those units the defendant occupied. They were required to use reasonable diligence in making that determination. See Commonwealth v. LaPlante, 416 Mass. at 439; Commonwealth v. Dominguez, 57 Mass. App. Ct. at 610 (reasonable investigation required). In this case, shortly before his arrest, the defendant indicated to the Registry of Motor Vehicles that he lived in Apartment 1, the first floor unit. When stopped by the police for motor vehicle infractions, he did not indicate that that information was wrong.

Of course, the police focused on the defendant's statement during one of these traffic stops that “We have the whole building.” [R. App. 36 (Affidavit, ¶ 33)]. According to the affiant, this statement somehow suggests that the building is in fact a single-family dwelling or establishes that the defendant had free access to every area of the building. However, without more information, this rather ambiguous statement establishes neither point. Indeed, the most likely meaning is that other family members stay in or control all three units of the building. The fact that he is related to some of the occupants of the other units or that his relatives lease, own, sublet or otherwise occupy the other units in the building does not demonstrate that he exercised dominion and control over any part of these other units. See Torres v. United States, 200 F.3d at 187; United States v. Butler, 71 F.3d at 249; United States v. Whitten, 706 F.2d 1000, 1008 (9th Cir. 1983). Nothing in the jurisprudence of this Commonwealth establishes that the fact that the defendant is related to occupants of the other units somehow defeats their exclusive right to exercise dominion and control over their own dwellings.

In the absence of evidence establishing that the defendant exercised dominion and control over any portion of the second and third floor apartments, at most, the police were entitled to search the first floor apartment and any common areas of the building to which he may have had reasonable access. See Commonwealth v. Pacheco, 21 Mass. App. Ct. 565, 569 (1986) (search warrant of one dwelling in a multi-dwelling residence has been held to include a cellar where the occupant had either exclusive access or access shared with others). See also Maryland v. Garrison, 480 U.S. at 85. If, however, the police knew or should have known that the defendant occupied only a single room in the first floor apartment-for example, if it was configured as a rooming house-their right to search may have been limited to the defendant's room and any common areas to which he had access. See McDonald v. United States, 335 U.S. 451, 454-455 (1948) (defendant's room in a “rooming house” treated as a home). See also Maryland v. Garrison, 480 U.S. at 90 (Blackmun, J., dissenting); Ker v. California, 374 U.S. 23, 42 (1963); Serpas v. Schmidt, 827 F.2d 23, 28 (7th Cir. 1987).

In the absence of any information that the defendant lived in the second or third floor units or had access or control of those areas, the police lacked probable cause to believe that evidence of a crime might be found therein. See Commonwealth v. Kaufman, 381 Mass. 301, 304 (1980). See also Commonwealth v. Jean-Charles, 398 Mass. 752, 757 (1986); Commonwealth v. Laughlin, 40 Mass. App. Ct. 926, 927 (1996); Commonwealth v. Wright, 15 Mass. App. Ct. 245, 250 (1983).

The warrant also failed to comply with the particularity requirement of the Fourth Amendment and art. 14 of the Massachusetts Declaration of Rights. See also G.L. c. 276, § 2 (2003 ed.); Commonwealth v. Walsh, 409 Mass. 642, 644-645 (1991). It permitted the police to indiscriminately search private rooms in private dwellings of persons not suspected of a crime. Indeed, the most incriminating evidence was discovered in the private room of Samuel Dew after the police had completed a search of a room in which they found the defendant. The warrant in this case was a classic general warrant, giving the officers broad discretion to conduct an unguided search or a general, exploratory rummaging of the belongings of persons not suspected of a crime. See Commonwealth v. Fernandes, 30 Mass. App. Ct. 335, 340 (1991). See also Maryland v. Garrison, 480 U.S. at 92 (Blackmun, J. dissenting); Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971); Steele v. United States, 267 U.S. 498, 503 (1925); Commonwealth v. Kenneally, 10 Mass. App. Ct. 162, 172-173 (1980). It was overbroad, unconstitutional and void, and the defendant's motion to suppress should have been allowed. Id.; Commonwealth v. Erickson, 14 Mass. App. Ct. at 504.

II. The Defendant Should Have Been Allowed To Probe The Exculpatory Nature Of A Drug Related Murder That Occurred In The Same Rooming House Just Two Days Before The Murder In This Case And Should Have Been Granted Full Discovery Of The Facts Surrounding That Killing

As discussed above, on the Commonwealth's motion, the trial court issued an impoundment order that permitted the Commonwealth to redact from the grand jury minutes and withhold from discovery evidence relating to a January 28, 1999 murder at 146 Stanwood Street. On January 10, 2002, the Commonwealth filed a motion in limine to preclude the defendant from introducing evidence of the January 28 murder. After some initial discussion at the start of trial, Judge McDaniel declined to rule on the motion in limine. When the defendant raised the issue again, the judge made no formal ruling, but indicated that “it's too speculative at this point in time, from what little information I have, for me to permit it.” [Tr. 3, 50]. Thereafter, over the defendant's objection, he declined to permit the defendant to offer evidence on the subject or in any way refer to the earlier killing. [Tr. 3, 222-224]. In doing so, the judge improperly restricted the defendant's constitutional right to present all favorable proofs in his defense and deprived him of a fair trial.

A defendant's right to present his theory of defense is an important right designed to vindicate the principle that “[t]he ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.” Taylor v. Illinois, 484 U.S. 400, 409 (1988), quoting from United States v. Nixon, 418 U.S. 683, 709 (1974). Indeed, the right of an accused to present his version of the facts “is necessary to ensure that the defendant is not deprived of a fair trial.” Chambers v. Mississippi, 410 U.S. 284, 302-303 (1973). See Washington v. Texas, 388 U.S. 14, 19 (1967). “This right is guaranteed not only by the Sixth and Fourteenth Amendments to the Federal Constitution, but also by art. 12 of the Massachusetts Declaration of Rights.” Commonwealth v. Louraine, 390 Mass. 28, 33-34 (1983). See Crane v. Kentucky, 476 U.S. 683, 690-691 (1986) (whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense).

In this case, as the defendant's counsel noted to the trial court, the earlier shooting took place two days before the killing in this case, it took place in the same building, it was crack related, and several of those involved in the present case were witnesses in the earlier case. [Tr. 3, 49-50]. Even on the sketchy information in the defendant's possession, the defense could have plausibly argued that the killing in this case may have been related to the earlier killing and therefore may have been committed by someone other than the defendant. He should have been permitted to question witnesses on this subject and argue any inference supported by their answers. See Commonwealth v. Newell, 55 Mass. App. Ct. 119, 130 (2002).

Significantly, any failure on the part of the defendant to demonstrate the relevance of this earlier killing is attributable to the orders of the court that grand jury testimony and discovery materials containing information about this killing be withheld from the defense. “Upon a sufficient showing, the judge may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate.” Mass. R. Crim. P. 14(a)(6). However, the judge's discretion to limit discovery must yield to the defendant's constitutional right to present all favorable proofs and to receive all exculpatory evidence in the Commonwealth's possession. Indeed, the failure to provide a defendant with full discovery of all potentially exculpatory evidence can hamper his ability to present a defense and certainly did so here. See Commonwealth v. Sineiro, 432 Mass. 735, 738, n.3 (2000); Commonwealth v. Vinnie, 428 Mass. 161, 167 (1998).

The judge did review the grand jury minutes in camera before they were redacted, but the defendant contends that his counsel should have been the one to determine whether they contained exculpatory information. While the Commonwealth was rightly concerned about compromising an ongoing investigation, adequate steps could have been taken to protect the Commonwealth's interests while at the same time accommodating the defendant's constitutional rights. See Mass. R. Crim. P. 14 (a)(6) (“The judge may, for cause shown, grant discovery to a defendant on the condition that the material to be discovered be available only to counsel for the defendant.”). See also Commonwealth v. Adams, 434 Mass. 805, 812 (2001).

Even now, the defendant is restricted in presenting the case to this court. Although it is not clear whether the investigation into the January 28 killing is ongoing, the defense still has not been provided with the requested grand jury minutes. Ultimately, the trial court's rulings compromised the defendant's rights under the Massachusetts and United States constitutions to present a viable theory of defense. He is entitled to a new trial on this basis.

III. The Trial Court Deprived The Defendant Of His Constitutional Right To Present A Defense By Refusing To Permit Him To Testify That He Was Not A Drug Dealer But Was Merely A Drug User Who Would Purchase Drugs From James “Popcorn” Whitley And That He Never Sold Drugs To Whitley

In his direct examination of the defendant, trial counsel attempted to elicit testimony (a) that the defendant was not a crack dealer; (b) that he was simply a drug user who came to 146 Stanwood to buy drugs from James “Popcorn” Whitley both in the past and on the night of the killing; and (c) that he never sold drugs to Whitley. [Tr. 10, 54-62]. The trial judge sustained the Commonwealth's objection, noting simply that the information would be “self-serving” to the defense and also characterizing the evidence as improper bad acts evidence. [Tr. 10, 58-59, 62 ]. As noted above, “[t]he right to call witnesses and present a defense under the Sixth Amendment and art. 12 is not absolute[, and] ... this right may be tempered according to the discretion of the trial judge.” Commonwealth v. Carroll, 439 Mass. 547, 552 (2003). See United States v. Nobles, 422 U.S. 225, 241 (1975). Nevertheless, the trial judge here abused his discretion by refusing to permit the defendant to present a key theory of defense. See Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). The defendant's conviction should therefore be reversed.

Evidence establishing that the defendant was a purchaser rather than a dealer of drugs at 146 Stanwood Street and that he never sold drugs to Whitley would have undercut the description of the events leading to the killing, as well as his role in those events as described by the Commonwealth's witnesses. The expected testimony was in no way “cumulative, repetitive, or confusing”. Commonwealth v. Durning, 406 Mass. 485, 495 (1990). See Hamling v. United States, 418 U.S. 87, 127 (1974). Contrast Commonwealth v. Paszko, 391 Mass. 164, 196 (1984). It also was not excludable as hearsay or under any other legal theory, and ultimately the judge erred in excluding this testimony. The judge correctly noted that the evidence was self-serving, but the fact that the defendant offers testimony supporting his theory of defense does not provide a basis for its exclusion.

The error in excluding this evidence was by no means harmless. Where the physical descriptions of the shooter and the descriptions of his attire varied widely among the prosecution witnesses, where the murder weapon was never found, and where no physical evidence was presented connecting the defendant to the murder other than ammunition found in somebody else's room, the case depended largely on the credibility of the Commonwealth's witnesses. See Commonwealth v. Carroll, 439 Mass. at 552. While various witnesses identified the defendant and described his role in the events, each of those witnesses carried significant baggage. All of the key witnesses were engaged in illegal activities that night. Testimony that would have undermined their stories and would have shown the defendant playing a different role in the events may have cast serious doubt on the Commonwealth's theory of the case. On the record here, this court cannot conclude the exclusion of the proffered testimony was harmless beyond a reasonable doubt. See Delaware v. Van Arsdall, 475 U.S. at 681; Commonwealth v. Vinnie, 428 Mass. at 163, Commonwealth v. Amirault, 424 Mass. 618, 649 (1997). He is entitled to a new trial.

IV. The Trial Judge Erred In Excluding Evidence That The Defendant's Cousin Anthony Dew Admitted That He, Not The Defendant, Shot And Killed Ovid McIver

Prior to the start of trial, the defendant filed a motion in limine seeking to admit testimony by Shercora Baker. The defendant expected her to testify that after the defendant's arrest, Anthony Dew had admitted that he, not the defendant, shot and killed Ovid McIver. [Tr. 9, 191-192]. The defendant offered this evidence as a statement against penal interest by Anthony Dew. He argued that the evidence would be highly exculpatory and would directly support the defense theory of the case that Anthony was in fact the killer. He further argued that Anthony was legally unavailable as a witness, in view of his Fifth Amendment privilege. After some initial discussions, the court agreed to conduct a voir dire of both Anthony Dew and Baker. [Tr. 2, 171-183; Tr. 3, 53-63, 108-112]. As predicted, Anthony asserted his Fifth Amendment privilege. [Tr. 3, 113-117]. Prior to the defendant calling her as a witness, the court conducted a lengthy voir dire of Baker as to Anthony's out-of-court statement. [Tr. 9, 187-209]. Ultimately, the judge denied the defendant's motion, ruling that the defendant had failed to offer evidence corroborating that this statement had actually been made. [Tr. 9, 222-225]. In refusing to allow the defendant to present this highly exculpatory evidence, the trial court deprived him of a fair trial and violated his rights under both the Massachusetts and United States constitutions.

“A defendant is entitled to present evidence tending to show that someone else committed the crime for which he stands accused.” Commonwealth v. Galloway, 404 Mass. 204, 207 (1989); Commonwealth v. Jewett, 392 Mass. 558, 562 (1984). See Chambers v. Mississippi, 410 U.S. 284 (1973). Where that evidence takes the form of an out of court statement the hearsay rule would ordinarily bar its admission. However, the courts have recognized an exception to the hearsay rule in this situation. Commonwealth v. Evans, 438 Mass. 142, 155 (2002); Id.; Commonwealth v. Carr, 373 Mass. 617, 623 (1977). “A statement must meet three tests to be admissible: '(1) the declarant's testimony must be unavailable; (2) the statement must so far tend to subject the declarant to criminal liability “that a reasonable man in his position would not have made the statement unless he believed it to be true”; and (3) the statement, if offered to exculpate the accused, must be corroborated by circumstances clearly indicating its trustworthiness.'” Id. at 207-208, quoting Commonwealth v. Drew, 397 Mass. 65, 73 (1986). See Commonwealth v. Gagnon, 408 Mass. 185, 193-194 (1990); Opinion of the Justices, 406 Mass. 1201, 1213 (1989). Compare Chambers v. Mississippi, 410 U.S. at 303.

Here, Anthony took the witness stand and asserted his Fifth Amendment privilege, unequivocally establishing his unavailability. Commonwealth v. Charles, 428 Mass. 672, 678 (1999); Commonwealth v. Galloway, 404 Mass. at 208. Further, as the judge acknowledged that his statements clearly were against his penal interest. Id. at 679; Commonwealth v. Galloway, 404 Mass. at 207-209.

However, as noted above, the judge declined to admit the statements, noting that they were not supported by sufficient independent indicia of reliability. The defendant strongly disagrees with this conclusion. As the defendant argued in the trial court, in determining whether the defendant has adequately corroborated an out-of-court statement, the court should “not be stringent.” Commonwealth v. Drew, 397 Mass. at 75 n.10. “[I]f the issue of sufficiency of . . . [the] corroboration is close, the judge should favor admitting the statement” and rely on “the good sense of the jury [to] correct any prejudicial impact.” Id. See P.J. Liacos, Massachusetts Evidence § 8.10 at 482 (6th Ed. 1994). “The question is 'not whether the [trial] judge is satisfied that the statement is actually true . . .' but whether, in light of the other evidence already adduced or to be adduced, there is some reasonable likelihood that the statement could be true.” Id. at 75-76, quoting United States v. MacDonald, 688 F.2d 224, 234 n.2 (4th Cir. 1982) (Murnaghan, J., concurring).

In this case, there is certainly a reasonable likelihood that the statement could be true. As trial counsel argued below, Anthony is the same age as the defendant and resembles him physically. He also lived at 51 Stanwood Street at the time of the shooting, which would fit with the actions of the shooter-i.e., leaving for a short period of time to retrieve more drugs and change. The fact that Anthony asserted his Fifth Amendment privilege strongly suggests that there was some degree of truth to the statement. Nothing in the record would suggest that Baker was somehow motivated to fabricate the alleged confession or that she was not credible. Contrast Commonwealth v. Carver, 33 Mass. App. Ct. 378, 381 (1992) (only witnesses to confession were other inmates who might be viewed as less than reliable). Baker had known both men all her life, and there is no indication that she harbored any ill will toward Anthony. While she indicated that Anthony would sometimes say things that were not true, she noted that when he did something bad, he would brag about it. [Tr. 9, 193, 197, 204]. Ultimately, she believed he was telling the truth. [Tr. 9, 206].

Had the jury heard this evidence, there is little doubt that it “might have had a significant impact on the result of the trial”. Commonwealth v. Fitzgerald, 402 Mass. 517, 521 (1988). See Commonwealth v. Bohannon, 376 Mass. 90, 94 (1978). If the jury believed that Anthony shot the victim, they would likely have acquitted the defendant. The trial judge deprived the defendant of a fair trial and violated his rights under both the Massachusetts and Federal constitutions. Compare Green v. Georgia, 442 U.S. 95, 97 (1979).

V. The Prosecutor Impermissibly Prejudiced The Defendant By Referring To Him As A Known “Gun-Carrying Crack Dealer” During His Closing Statement

During his closing statement, the prosecutor stated that the Commonwealth's witnesses had known the defendant as “a crack dealer, a gun carrying crack dealer” prior to the shooting. [Tr. 10, 150-151]. This statement went well beyond the reasonable inferences that could be drawn from the evidence. See Commonwealth v. Jackson, 428 Mass. 455, 461 (1998); Commonwealth v. Smith, 387 Mass. 900, 910 (1982). It also amounted to a blatant attempt to inflame the jury. See Commonwealth v. Cruz, 424 Mass. 207, 212 (1997) (comment that defense expert was a “charlatan” in closing improper and meant to inflame). See also Commonwealth v. Wilson, 46 Mass. App. Ct. 292, 299 (1999) (challenged evidence that preyed on jury's “anxious fears of unpoliceable violence” had the potential to lead to a verdict based on emotion rather than the facts presented). In this case, the improper statement prejudiced the defense, especially where the judge refused the defendant's request for a curative instruction. [Tr. 10, 250-253]. See Commonwealth v. Santiago, 425 Mass. 491, 500 (1997); Commonwealth v. Daggett, 416 Mass. 347, 352 n.5 (1993). Contrast Commonwealth v. Daley, 439 Mass. 558, 567 n.6 (2003). His motion for a mistrial, filed immediately following the prosecutor's closing [Tr. 10, 166-167] and renewed the following day [R. App. 51-52], should have been allowed.

VI. Pursuant To G.L. c. 278, §33E, This Court Should Reduce The Verdict

“In convictions of murder in the first degree, [this court is] authorized to review a whole case, including the evidence.” Commonwealth v. Woodward, 427 Mass. 659, 668 (1998). See G.L. c. 278, 33E; Commonwealth v. Jefferson, 416 Mass. 258, 266 (1993). “'[E]ven when the evidence can legally support the jury's verdict[,]'” this court may properly set aside or reduce the verdict under Section 33E “to ensure that the result . . . is consonant with justice.” Id. at 666, quoting Commonwealth v. Carter, 423 Mass. 506, 512 (1996). Here, the defendant concedes that, viewed in the light most favorable to the Commonwealth, the evidence could support the jury's verdict. Nevertheless, a reduction in the verdict to manslaughter or second-degree murder would more accurately reflect the state of the evidence and would be more consonant with justice. Commonwealth v. Keough, 385 Mass. 314, 320 (1982) (verdict on murder charge warranted by the evidence, but reduction to manslaughter upheld where consonant with justice).

In convicting the defendant of murder in the first degree, the jurors did not find that he had acted with deliberate premeditation. The jury based its verdict on a felony murder theory. The evidence, viewed in the light most favorable to the Commonwealth, certainly supported that theory, see Commonwealth v. Evans, 390 Mass. 144, 151 (1983) but, there are mitigating circumstances present in this case. The victim was not someone randomly targeted for violence. Under the Commonwealth's theory of the case, he was engaged in a drug deal at the time of the shooting. Further, the gun went off only after the victim lunged at the defendant and attempted to wrestle it from the defendant's hands. The jury's verdict rejecting the theory of deliberate premeditation clearly indicates that the defendant did not intend to shoot the victim. Given the defendant's age at the time of the shooting (nineteen) and the conduct of the victim, a verdict of murder in the first degree seems exceedingly harsh.

In these circumstances, an order reducing the verdict to either manslaughter or murder in the second degree would be “more consonant with justice.” Commonwealth v. Baker, 346 Mass. 107, 109 (1963).

VII. Conclusion

Based on the authorities cited and the reasons aforesaid, the defendant requests that the judgment be reversed and that he be granted a new trial. In the alternative, he asks that the verdict be reduced to manslaughter or murder in the second degree.

Respectfully submitted,
Roger L. Dew, Jr.

By his attorney,



Dana Alan Curhan
B.B.O. # 544250
101 Arch Street
Suite 305
Boston, MA 02110
(617) 261-3800



Assisting on the Brief:
Brad Bennion,
Legal Intern







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