Commonwealth v. Herndon , 475 Mass. 324 ( 2016 )

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SJC-11702
COMMONWEALTH vs. FRANKIE HERNDON.
Suffolk. March 11, 2016. - August 26, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ.1
Homicide. Firearms. Evidence, Identification. Identification.
Practice, Criminal, Capital case, Sequestration of
witnesses, Public trial. Constitutional Law, Public trial.
Indictments found and returned in the Superior Court
Department on December 19, 2011.
The cases were tried before Patrick F. Brady, J.
Theodore F. Riordan (Deborah Bates with him) for the
defendant.
Teresa K. Anderson, Assistant District Attorney (Joseph F.
Jimezic, Assistant District Attorney, with her) for the
Commonwealth.
BOTSFORD, J. A Superior Court jury found the defendant,
Frankie Herndon, guilty of murder in the first degree of Derrick
Barnes on the theory of deliberate premeditation and of
1
Justices Spina and Cordy participated in the deliberation
on this case prior to their retirements.
2
possession of a firearm without a license. On appeal, the
defendant challenges (1) the failure of the judge to instruct
the jury on eyewitness identification in accordance with the
defendant's requested instruction that was created after State
v. Henderson, 208 N.J. 208 (2011), and that presaged this
court's provisional eyewitness identification instructions set
forth in Commonwealth v. Gomes, 470 Mass. 352 (2015); (2) the
admission in evidence, through the testimony of two police
officers, of an alleged out-of-court identification of the
defendant and his codefendant, Frederick Henderson, by a witness
although that witness did not testify concerning that alleged
identification; and (3) the naming of the defendant's sister as
a witness, which resulted in her sequestration from the court
room. We affirm the defendant's convictions.
Background. From the evidence presented, the jury could
have found the following facts. At some point before moving
with their family to a town outside Boston, the victim and his
brother Darryl Barnes (Darryl) had lived on Fayston Street in
the Dorchester section of Boston. On August 27, 2011, Darryl
and the victim returned there to visit people they knew from
childhood and who were participating in a festival in Boston.
Between approximately 5 and 5:30 P.M., Darryl parked his
automobile on the street. The victim and Darryl left the
vehicle and walked along the street, where they met their cousin
3
Rondale Williams. The victim, Darryl, and Williams continued to
walk and stopped in front of one house on the street. After a
few minutes, Darryl left to drive another cousin home. Shantee
Griffin, who stayed with her mother next door, approached where
the victim and Williams were talking, and the victim introduced
himself to Griffin.
At some point, the victim and Williams moved to the area of
a front porch directly across the street.2 Williams was on the
porch while the victim was standing on the stairs leading up to
the porch with another man and a woman. At 7:05 P.M., the
defendant and Henderson walked along the street and stopped at
the porch steps. Words were exchanged among the defendant,
Henderson, and the victim for less than a minute, but long
enough for the victim to say, "I'm saying, mother, you want to
holler at me, holler at me then" and for the defendant to say,
"[N]ow, what's up with that rattin' shit?" After this exchange,
the defendant and Henderson each drew a gun and fired multiple
shots at the victim,3 and the victim fell. The defendant turned
2
The police obtained video footage from cameras that had
captured images of the street around the time of the shooting.
The images showed two men approach the porch steps around 7:05
P.M. and the victim being shot multiple times by at least one of
the two men. However, the identities of the shooters could not
be determined from the video.
3
Shantee Griffin testified that the defendant shot the
initial shots; Rondale Williams stated Henderson fired the
initial shot.
4
and began to walk away but then turned back to the stairs of the
porch, and as the victim put his arm up, the defendant shot the
victim again. The defendant then put away the gun he was
holding and "walked off like normal."
Williams ran from the porch to a nearby house and
telephoned 911. Griffin, who was on the sidewalk in front of
another nearby house during the shooting, also telephoned 911.
She handed the telephone to a resident of Fayston Street,
proceeded to where the victim was lying, and applied pressure on
his chest in an attempt to stop the bleeding. Darryl returned
minutes after his brother had been shot and ran to where the
victim was lying. Minutes later, Boston police and emergency
medical services responded to the scene. The victim, who was
alert but unable to respond, was transported to a hospital,
where he was pronounced dead not long after his arrival. He had
received five gunshot wounds, including fatal wounds to the head
and in the area of his right lower leg. Ballistic examination
of shell casings found at the scene revealed that two different
guns were used in the shooting.
The Commonwealth's theory of the case was that the
defendant and Henderson shot the victim because in 2009 the
victim had testified, revealing information contrary to the
defendant's "no snitching code." According to the defendant,
"bad things" happen to snitches and they could get shot.
5
Although the defendant and the victim grew up together and were
together almost every day until 2009, after 2009 they "stopped
hanging out."
The evidence pointing to the defendant and Henderson as the
two men who shot and killed the victim primarily consisted of
identifications allegedly made by Griffin and Williams. The
Commonwealth called both Griffin and Williams to testify at
trial, but neither of them identified the defendant or Henderson
as a shooter in their trial testimony. Rather, the evidence of
identifications, in Griffin's case, consisted of the following:
(1) testimony by Sergeant Detective James J. Wyse that he spoke
with Griffin by telephone on the night of the shooting and she
identified "Jigga" (the defendant) and "Drano" (Henderson) as
being the two men involved in the shooting and Jigga as the
shooter;4 (2) evidence of Griffin's recorded statements to Wyse
and Detective Jeramiah Benton a few days after the shooting
where she identified the defendant and "Drano" as the two men
who approached the porch steps and the defendant as the man who
4
Two other officers who spoke with Griffin on the night of
the shooting also testified at trial. While still at the scene
of the shooting, Griffin told one officer that she heard gunfire
but saw nothing. Another officer also spoke with Griffin at the
scene, and she told him that she was in front of her house when
the shooting happened and that she saw one shooter. She further
stated that she did not want to speak with him at that moment
but provided him with her telephone number and told him that he
could telephone her.
6
shot the victim several times;5 and (3) Griffin's grand jury
testimony -- about which she was questioned at trial and a
redacted copy of which was introduced as an exhibit again
identifying the defendant and Henderson as being at the scene of
the shooting and the defendant as the shooter.6,7
As for Williams, the evidence of his identifications
consisted of testimony by the two Boston police detectives,
Benton and Wyse, about statements Williams made during an
unrecorded interview they conducted of him on September 2, 2012,
in the apartment of Williams's mother. According to the
detectives' testimony, Williams identified "Drano" as firing the
first shot and "Jigga" as firing subsequent shots.
The defendant testified. He stated that on the day in
question, he was at a festival where he met friends, including
Thell Valentine. He then left with Valentine and went to
Valentine's apartment around 5 P.M. They stayed at Valentine's
apartment for a while and then drove around until about 11:30
P.M. Valentine's testimony corroborated this timeline and more
5
The interview was tape recorded and the recording was
admitted in evidence as an exhibit.
6
At trial, Griffin claimed that she felt pressured to
answer questions a certain way during police questioning and at
the grand jury.
7
Although Griffin testified before the grand jury that she
was directly across the street when the shots occurred, the
surveillance video shows Griffin farther down the street.
7
specifically explained that he and the defendant were still at
his apartment at the time of the shooting and left his apartment
around 8 P.M.8
The defendant was sentenced to life in prison on the murder
charge and a concurrent term of from four to five years in
prison for unlawful possession of a firearm.9 The defendant
filed a timely notice of appeal.
Discussion. a. Eyewitness identification instruction.
The defendant requested an instruction on eyewitness
identification that was essentially identical to the instruction
that was developed after the New Jersey Supreme Court's decision
in State v. Henderson, 208 N.J. at 298-299. See Gomes, 470
Mass. at 357 n.10. The judge declined to give the defendant's
requested instruction, stating that he would use the model
instruction provided in Commonwealth v. Rodriguez, 378 Mass.
296, 310-311 (1979) (Appendix), S.C., 419 Mass. 1006 (1995).10
8
Henderson similarly presented an alibi defense, but did
not testify.
9
The second offense and armed career criminal portions of
the conviction of possession of a firearm were dismissed on
motion of the Commonwealth and with the defendant's assent.
10
The judge further responded to the defendant's requested
identification instruction by stating, "I read it. I considered
it. Maybe good, maybe considered better, but not by me. I'm
just going with what I have [the Rodriguez instructions]." The
judge clarified, however, that "[t]hat doesn't mean that
[defense counsel] can't argue numerous other factors that may
have affected the ID."
8
The defendant claims that the judge erred by giving the model
instruction in Rodriguez, rather than the instruction he
requested, especially in light of this court's recent adoption
of the more inclusive instructions provisionally adopted in
Commonwealth v. Gomes, 470 Mass. at 376.11 See id. at 379-388
(Appendix). Because the defendant objected to the judge's
eyewitness identification instruction, we review for prejudicial
error. See Commonwealth v. Meas, 467 Mass. 434, 454, cert.
denied, 135 S. Ct. 150 (2014). We conclude that the judge did
not abuse his discretion in denying the defendant's proposed
instruction and therefore that there was no prejudicial error.
See Gomes, supra at 359.
Similar to the instruction adopted in Gomes, the
defendant's requested instruction contained various principles
regarding the reliability of eyewitness identification and human
memory that were not included in the Rodriguez instruction: (1)
human memory is not like a video recording; (2) a witness's
level of confidence may not be an indication of the reliability
of the identification; (3) the accuracy of the identification
may be affected by a witness's stress at the time of the crime,
the presence of a weapon distracting the witness's focus, and
11
Following our decision in Commonwealth v. Gomes, 470
Mass. 352, 376 (2015), we approved a new model instruction on
eyewitness identification that includes some revisions to the
Gomes provisional instruction. See Model Jury Instructions on
Eyewitness Identification, 473 Mass. 1051 (2015).
9
any influence of alcohol or drugs; and (4) information provided
to a witness by other witnesses or outside sources may affect
the reliability of the witness's identification. Each of the
factors raised by the defendant's alternative instruction is
supported by the scientific principles regarding eyewitness
identification summarized in the Report and Recommendations of
the Superior Judicial Court Study Group on Eyewitness Evidence
(report);12 the report served as the impetus for the provisional
instructions in Gomes and the Model Jury Instructions on
Eyewitness Identification, 473 Mass. 1051 (2015). As we
recently noted in Commonwealth v. Navarro, 474 Mass. 247 (2016),
however, the report itself does not represent a binding
statement of governing law, and neither the provisional nor the
new model eyewitness identification instructions were in
existence at the time of the defendant's trial. See id. at 253.
Thus, despite the alignment of the defendant's proposed
instruction with the report's conclusions and our new
instructions, we look to the law in effect at the time of the
defendant's trial, and the judge acted well within his
discretion in using the Rodriguez instruction. See Navarro,
supra at 251.
12
Supreme Judicial Court Study Group on Eyewitness
Evidence: Report and Recommendations to the Justices (July 25,
2013), http://www.mass.gov/courts/docs/sjc/docs/eyewitness-
evidence-report-2013.pdf [http://perma.cc/WY4M-YNZN].
10
Like the defendant here, the defendant in Gomes requested a
more expansive eyewitness identification instruction than the
Rodriguez model instruction, based on the New Jersey Supreme
Court's analysis in the Henderson decision. Although the
provisional instruction we adopted in Gomes included most of the
points or principles relating to eyewitness identification
instruction that were discussed in Henderson, 208 N.J. at 245-
276, 298-299, we did so explicitly on a prospective basis,
Gomes, 470 Mass. at 376. We concluded that the judge in that
case did not err in declining the defendant Gomes's instruction
request and using the model Rodriguez charge, where the
defendant had failed to provide the judge "with any expert
testimony, scholarly articles, or treatises that would
reasonably have enabled the judge to determine whether the
principles in the defendant's proposed instruction were 'so
generally accepted' that it would be appropriate to instruct the
jury regarding them." Gomes, supra at 359-360. The defendant
in the present case is in the same position as the defendant in
Gomes, having presented no evidence to demonstrate that the
principles in his requested instruction were so generally
accepted that the judge was obliged to give that instruction;
defense counsel's reference to instructions sparked by the
Henderson case alone did not satisfy this requirement. See
Gomes, supra at 357 n.10. The judge here did not abuse his
11
discretion or otherwise err in declining to give the defendant's
requested eyewitness identification instruction and giving
instead a version of the model Rodriguez instruction. See
Commonwealth v. Bastaldo, 472 Mass. 16, 18 (2015).13
The defendant alternatively argues that the judge declined
to adopt the defendant's proposed eyewitness identification
instruction because the judge incorrectly believed he had no
authority to do so. He avers that the judge's failure to give
the proposed instruction based on this legally erroneous belief
13
The defendant claims that, despite the explicit directive
for prospective application of the provisional instruction in
Gomes, this court nonetheless may apply the instruction
retrospectively. The defendant relies on Commonwealth v.
Brescia, 471 Mass. 381, 392 (2015), and Commonwealth v. Rivera,
82 Mass. App. Ct. 839, 844-848 (2012), to make his point. The
two cited cases presented different issues from those in this
case. In Brescia, we concluded that the motion judge properly
granted a new trial not because of a retrospective application
of a new rule of law adopted after the defendant's trial, but
because, given that the defendant had suffered a stroke during
his trial, "the fairness of [the] trial was hampered by an
extraordinary confluence of factors." Brescia, supra at 392.
In Rivera, the Appeals Court applied instructions announced by
this court in Commonwealth v. Berry, 457 Mass. 602, 617-618
(2010), S.C., 466 Mass. 763 (2014), a case decided after the
trial in Rivera, in order to prevent a substantial likelihood of
a miscarriage of justice, where the change in instructions went
to the heart of the defendant's case. Rivera, supra at 847-848.
The instructions provided to the jury in the defendant's case
neither threatened the integrity of the trial nor caused a
substantial likelihood of a miscarriage of justice. Further,
the provisional eyewitness identification instruction announced
in Gomes did not create a "new rule" of constitutional law,
warranting application to pending cases or those on direct
appeal at the time Gomes was decided. Compare Commonwealth v.
Augustine, 467 Mass. 230, 256-257 (2014), S.C. 470 Mass. 837(2015), and 472 Mass. 448 (2015), and cases cited.
12
constituted reversible error, citing Commonwealth v. Harris, 443
Mass. 714, 728-729 (2005). The record does not support the
claim that the judge operated under the mistaken belief that he
lacked authority to adopt the requested instruction. To the
contrary, the judge read and considered the proposed
instruction, but ultimately denied the request because he
preferred to use the model Rodriquez charge.
b. Introduction of Williams's pretrial statement of
identification through detectives. i. Additional facts.
During the presentation of its case, the Commonwealth called
Williams as a witness. Toward the end of his testimony, the
prosecutor asked him:
Q.: "Mr. Williams, did you speak with homicide
detective on the 2nd of September of 2011?"
A.: "Don't know the exact date."
Q.: "Did you speak with homicide detectives in the
afternoon some day shortly after Derrick Barnes was
murdered?"
A.: "Not that I recall."
The prosecutor did not ask Williams any further questions about
the meeting with the homicide detectives. Similarly, defense
counsel did not ask any questions about such a meeting during
his cross-examination of Williams. The Commonwealth then called
Benton as a witness. Benton testified that he and Wyse met with
13
Williams on September 2, 2011.14 He said that during the
meeting, Williams identified Drano and Jigga as having walked up
to the front of the porch on August 27, that Drano drew a gun
and fired the first shot at the victim, and that subsequently
Jigga also shot the victim. At a later point, Wyse similarly
testified about statements Williams made to him and Benton
identifying Jigga and Drano as the men who shot the victim.
The defendant objected to this evidence of Williams's
identification, arguing that it was hearsay and could only be
admitted for purposes of impeachment, and that the manner in
which the evidence was being presented violated his
constitutional right to confrontation. His counsel made the
particular point that by failing to question Williams himself
about the identification while Williams was testifying as a
trial witness, the Commonwealth had deprived the defendant of
his right to cross-examine Williams about it. The judge
overruled the objection, and referencing Mass. G. Evid.
§ 801(d)(3)(C) (2016), the judge ruled that the evidence of
Williams's identification reflected in Benton's testimony was
admissible substantively. The judge suggested that the
defendant was free to recall Williams as part of the defense
case in order to further question him about the identification,
14
The interview with Williams was not recorded. Wyse, whom
the Commonwealth called as a witness following Benton, testified
that Williams had declined to be recorded.
14
but that the judge would not require the Commonwealth to recall
the witness for this purpose.
ii. Analysis. In this appeal, the defendant renews his
argument that his right to confrontation under the United States
and Massachusetts Constitutions was violated where the
Commonwealth introduced evidence of Williams's alleged
identification through third parties without first asking
Williams, during the prosecutor's direct examination of
Williams, about the identification. He claims that the
constitutional error was not harmless beyond a reasonable doubt,
and that he is entitled to a new trial as a result.15
For evidence of a witness's prior identification of a
defendant (or another person) to be presented by a third party
and admissible as substantive evidence at trial, it is essential
that the identifying witness himself or herself be available to
testify and subject to cross-examination about the alleged
identification statement. See Commonwealth v. Cong Duc Le, 444
Mass. 431, 437-439 (2005); Mass. G. Evid. § 801(d)(1)(C). See
also United States v. Owens, 484 U.S. 554, 559-560 (1988).
15
Because the jury found Henderson guilty of murder in the
first degree, the defendant argues that the jury must have
credited Williams's identification given that his
identification, as testified to by Benton and Wyse at trial, was
the only evidence that identified Henderson as a shooter.
Griffin, who provided the only other identification evidence at
trial, implicated only the defendant as having shot the victim,
not Henderson.
15
Neither Cong Duc Le nor any subsequent case, however, has
considered the question whether, before a third party is
permitted to testify about an identification witness's alleged
prior identification, the identification witness must first be
called to testify about the circumstances of that earlier
identification and be subject to cross-examination. We conclude
that this ordering of presentation of witnesses is not
constitutionally required, but in the trial of criminal cases
after this case, as a matter of criminal procedure, the
Commonwealth shall be required to question a putative
identification witness concerning an alleged prior
identification before it seeks to introduce substantive evidence
of that identification through a third party, thereby providing
direct notice to the defendant of the issue and an opportunity
for the defendant to cross-examine the putative identification
witness in a timely manner. In this case, however, the fact
that the prosecutor did not inquire specifically of Williams
about his alleged prior identification during the interview the
detectives conducted on September 2, before Benton and Wyse
testified on that topic, did not constitute reversible error.
In Cong Duc Le, we adopted Proposed Mass. R. Evid.
§ 801(d)(1)(C), which provides that statements of identification
are admissible substantively so long as "[t]he declarant
testifies at the trial or hearing and is subject to cross-
16
examination concerning the statement," regardless of whether the
witness admits, denies, or does not remember the statement.
Cong Duc Le, 444 Mass. at 436, quoting Proposed Mass. R. Evid.
§ 801(d)(1)(C). Accord Commonwealth v. Spray, 467 Mass. 456,
470 (2014) ("Testimony by a third party, such as a police
officer, regarding a witness's extrajudicial identification is
substantively admissible if the identifying witness is unable or
unwilling to make an identification in court and is available
for cross-examination" [citation omitted]).16
This evidentiary rule undoubtedly implicates a defendant's
constitutional right to confrontation. See Cong Duc Le, 444
Mass. at 437-439. See also California v. Green, 399 U.S. 149,
155-158 (1970). This court and the Supreme Court of the United
States have made clear that the confrontation clause requires
that a full opportunity be available to cross-examine the
declarant witness about the statement. See Owens, 484 U.S. at
559 (defendant must have full and fair opportunity to bring out
16
The proposed evidence rule set out in Mass. G. Evid.
§ 801(d)(1)(C) (2016) applies to an out-of-court identification
based on a witness's familiarity with the person identified and
is not limited to identifications made through a photographic
array, show-up, or other formal identification procedure. See
Commonwealth v. Adams, 458 Mass. 766, 770-772 (2011). Further,
the proposed rule is not intended to render a witness's entire
statement admissible, but only those parts of the statement
necessary to provide a reasonable context for the
identification. Id. at 772. The trial judge adhered to this
limitation.
17
witness's bad memory and other facts tending to discredit his
testimony such as "witness'[s] bias, his lack of care and
attentiveness, his poor eyesight"); Cong Duc Le, supra at 438
(requirement under Mass. G. Evid. § 801[d][1][C] "would be
satisfied as long as the witness is placed on the stand, under
oath, and responds willingly to questions" [quotation and
citation omitted]). But this court has never required that a
full opportunity to cross-examine must follow a prosecutor's
asking the witness about the alleged identification on direct
examination.17 A meaningful opportunity to cross-examine does
not "guarantee a 'cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish,'"
Cong Duc Le, supra at 438, quoting Owens, supra at 559.
Where a defendant retains the opportunity to recall the
declarant witness, a number of other States are in accord that
17
In Commonwealth v. Machorro, 72 Mass. App. Ct. 377, 379-
381 (2008), the Appeals Court held that an officer's testimony
about a witness's extrajudicial identification was admissible
even though the witness had not testified at trial specifically
about the identification. Although the facts in Machorro are
distinguishable from this case -- the declarant witness there
"testified at trial that she was 'pretty sure' the man who was
arrested was the same man who had assaulted her," id. at 381,
and therefore defense counsel had the opportunity to cross-
examine the witness as to the basis for this belief -- the
Appeals Court's decision illustrates the shift toward the
admissibility of extrajudicial identifications as substantive
evidence, a substantial change from cases decided by the Appeals
Court before our decision in Commonwealth v. Cong Duc Le, 444
Mass. 431 (2005). See, e.g., Commonwealth v. Seminara, 20 Mass.
App. Ct. 789, 796 (1985).
18
there is no violation of a defendant's constitutional right of
confrontation if the prosecutor fails to ask the identifying
witness about the identification on direct examination. See
People v. Lewis, 223 Ill. 2d 393, 402-403 (2006) (based on plain
language of criminal statute permitting prior identifications to
be admitted in evidence substantively, no requirement that
declarant testify about out-of-court identification before third
party may testify about identification); Jones v. State, 410 Md.
681, 700 (2009) (where tape-recorded interview was offered in
evidence substantively pursuant to State criminal statute
permitting out-of-court statements of child victims, and
defendant had opportunity to recall declarant for further cross-
examination regarding taped interview but did not, defendant was
not entitled to new trial); State v. Hoch, 189 Vt. 560, 562-563
(2011) (testimonial hearsay statement admitted after declarant
testified did not violate confrontation clause where defense
counsel was free to recall declarant witness for further cross-
examination). But see Smith v. State, 669 A.2d 1, 7-8 (Del.
1995) (under State criminal statute permitting use of prior
statements as substantive evidence where declarant is subject to
cross-examination, "the statement must be offered into evidence
no later than at the conclusion of the direct examination of the
declarant").
19
Although not constitutionally required, we conclude that,
moving forward, it is appropriate to require that the
Commonwealth inquire directly of the alleged identifying witness
about the alleged prior identification before introducing
evidence of that alleged identification through a third-party
witness. Cf. Smith v. State, 669 A.2d at 7-8. This sequence
will provide the defendant specific notice of the prior
identification, information that will permit the defendant to
fully cross-examine the alleged declarant. The opportunity to
recall the declarant witness after the statement has been
introduced through a third party is too limited, and
inappropriately places a "strategic burden on the non-offering
party." Id. at 8. Further, the approach we adopt may reduce
confusion for the jury by providing them with both versions of
the events in a timely fashion, "leaving it to the jury to
resolve the conflicting claims concerning that prior
identification." Cong Duc Le, 444 Mass. at 440.18
18
We appreciate that this procedural rule is easier to
state than it will be to apply in every instance. As the
present case illustrates, the alleged identification witness may
not recall the circumstances when he was alleged to have made a
prior identification or, even if the witness recalls the
circumstances, may not recall having made the alleged
identification or may deny having done so. Here, despite the
fact that Williams professed a lack of recall about meeting with
Benton and Wyse soon after the shooting incident, it would have
been appropriate for the prosecutor to have asked Williams
specifically whether he recalled identifying Drano and Jigga as
20
For the reasons just summarized -- and as stated in note
17, supra -- it would have been preferable for the prosecutor
explicitly to question Williams during direct examination about
the identification of the defendant and Henderson that Williams
was alleged to have made during his interview by Benton and Wyse
-- i.e., before the Commonwealth presented evidence of the
identification through the testimony of the two detectives.
Nonetheless, the ordering of the witnesses in this case did not
constitute an error warranting reversal. First, the record
demonstrates clearly that the defendant's trial counsel knew
before trial of Williams's alleged statement identifying the
defendant and Henderson because he had received a copy of a
police report in which the identification was apparently set
out. Second, Williams, of course, did testify at trial and was
available for full cross-examination by the defense; there is
nothing in the record to suggest that Williams was unable or
unwilling to answer questions. Finally, the judge offered the
defendant the opportunity to recall Williams in order to inquire
about the alleged identification that was presented to the jury
through the detectives' testimony.
In sum, the fact that the prosecutor did not inquire
specifically of Williams about his alleged prior identification
both having come to the porch on August 27, and as both having
shot the victim.
21
of the defendant and Henderson before Benton and Wyse testified
about the identification did not deprive the defendant of the
ability to cross-examine Williams on this issue. Although we
recognize that the introduction of the identification evidence
through the detectives without having first questioned Williams
about the identification was perhaps ill-advised, in the
circumstances of this case it cannot be deemed improper, and
does not warrant reversal of the defendant's convictions.
c. Sequestration of the defendant's sister. On the first
day of trial, the Commonwealth presented to the judge a
photograph that a Boston police detective discovered on a page
of the Web site Facebook,19 on which the photograph appeared of
Sudara Herndon (Sudara), the defendant's sister. The
photograph, taken that day inside the court room, showed the
defendant and Henderson in court and the Facebook page referred
to them by their nicknames, Jigga and Drano. The prosecutor
explained to the judge at a sidebar conference that the Facebook
post "has reference to a number of things . . . that will be
evidence in this case." Consequently, the prosecutor added
Sudara to the Commonwealth's witness list, thereby making her
subject to a sequestration order that was in place for all
19
Facebook is a social networking Internet site that allows
members to develop personalized profiles in order to interact
and share information with other members. Commonwealth v.
Walters, 472 Mass. 680, 688 n.19 (2015).
22
witnesses and prohibiting her from coming into the court room
during the trial. The defendant argues that the judge abused
his discretion by allowing the Commonwealth to add Sudara as a
witness because this was a pretext to exclude her from the court
room in violation of his constitutional right to an open court
room. We disagree.
The rule of criminal procedure governing the sequestration
of witnesses provides that "[u]pon his own motion or the motion
of either party, the judge may, prior to or during the
examination of a witness, order any witness or witnesses other
than the defendant to be excluded from the court room." Mass.
R. Crim. P. 21, 378 Mass. 892 (1979). A judge has "broad
discretionary power to sequester witnesses." Reporters' Notes
to Rule 21, Mass. Ann. Laws, Rules of Criminal Procedure, at
1597 (LexisNexis 2015). The judge reasonably found that the
Facebook post of the photograph of the defendant and Henderson
and referencing the two by nickname was enough to justify adding
Sudara as a potential witness and thereby necessitating her
exclusion, given that the nicknames were an issue at trial, and
Sudara's Facebook page presented potentially probative evidence
about it. The judge did not abuse his broad discretion in
permitting the prosecutor to add Sudara to the Commonwealth's
23
witness list and thereby subject her to the general witness
sequestration order.20
Review under G. L. c. 278, § 33E. Based on a thorough
review of the record in this case in accordance with our
obligation under G. L. c. 278, § 33E, we conclude that there is
no basis to grant the defendant a new trial or other relief.
Judgments affirmed.
20
The defendant claims that because the Commonwealth
already had overwhelming evidence of the nicknames alleged to
have been used by the defendant and Henderson, any evidence from
Sudara's Facebook page was unnecessary to prove its case. We
are not persuaded. The addition of Sudara to the Commonwealth's
witness list was made at the very outset of the trial. Whether
the Commonwealth's evidence of the nicknames was "overwhelming"
may well not have been clear at that juncture. Moreover, a
party generally is permitted to introduce evidence that is
relevant, even if other evidence exists on the same point.