462 Mass. 620 - Appellant Brown Brief - Mass Cases

SUFFOLK, SS.
Stephen Neyman
50 Congress Street
Suite 525
Boston, MA 02109-4048
(617) 263-6800
B.B.O. # 551576
COMMONWEALTH Oh- MASSACHUSETTS
SUPREPIIE JUDICIAL COURT
S JC-107 92
COMMONWEALTH
V.
CORNELIUS BROWN
On appeal from a judgment of the
Superior Court for Suffolk County
BRIEF, ADDENDUM AND RECORD APPENDIX
FOR DEFENDANT/APPELLANT
2011 Sitting

TABLE OF AUTHORITIES
TABLE OF CONTENTS -
A. Cases 1.
B. O ther Authorities v1,
ISSUES PRESENTED: 1
STAYEMENT OF THE CASE: 2
STATEMENT OF FACTS: 3
SUMMARY OF THE ARGUMENT: 21
ARGUMENT :
Defense counsel's refusal to request an instruction on
involuntary manslaughter created a substantial
likelihood of a miscarriage of justice where one
witness, Naeemah Mitchell, saw the shooter not airninq
at anyone 23
Defense counsel's failure to request an instruction on
1) voluntary manslaughter and 2) self defense created a
substantial likelihood of a miscarriage of justice
where the defendant's admission to a friend, coupled
with Naeemah Mitchell' 8 testimony, supported the
instruction 26
Defenae counsel' s failure to object to reference to
Brown's prior incarceration created a substantial
likelihood of a miscarriage of justice 32
The trial judge's gratuitous interjections to defense
counsel's opening statement, examination of witnesses
and closing argument created a substantial likelihood
of a miscarriage of justice 36
The denial of the defendant's motion to suppress his
statements constitutes reversible error where the

Miran& waiver was not made voluntarily and the
statement was not made voluntarily due to the
defendant's marijuana intoxication 43
This court should exercise its power of review under
Massachusetts General Laws c. 278 §33e and reverse the
defendant's conviction 4 7
CDNCLITS ION : 50
RECORD APPENDIX
ADDENDUM
ii

A. Cases
Commonwealth
. v. Acevedo, -.
446 Mass. 435 (2006)
commonwealth v. Berry,
420 Mass. 95 (1995).
-. Commonwcalth
_- v. Bouvis, 316 Mass. 489 (1944)
Commonwealth v. Bowden,
379 Mass. 472 (1980)
Commonwealth v. Bowman,
I,.. .-
373 Mass. 760 (1977)
Commonwealth v. Braley,
449 Mass. 316 (2007)
- Commonwealth ~. v. Brown, -
376 Mass. 156 (1978)
Cornionwealth . v. ,. Brown,
307 Mass. 220 (1982)
commonwealth v. Burgess,
450 Mass. 422 (2008)
-_ Commonwealth v. Campbell,
352 Mass. 387 (1967)
Commonwealth -
v. Casavant,
426 Mass. 368 (1998)
TABLE OP AUTHORITIES
i
28
35
29
39
48
24
47
28
29
28, 29
29

Commonwealth v. Ciampa,
~~
406 Mass. 257 (1989)
Commonwealth v. Corriveau,
-. -.__-
396 Mass. 319 (1985)
Commonwealth v. Crawford, .-
429 Mass. 60 (1999)
-. Commonwealth v. Davis,
300 Mass. 1 (1980)
Commonwealth v. Dunn,
." -
407 Mass. 798 (1990)
Cornonwealth v. Dyous,
.~ --
436 Mass. 71.9 (2002)
Commonwealth -- v. Ellison,
376 Mass. 1 (1978)
Commonwealth v. Epsom,
-. .. .-
399 Mass. 254 (1987)
Commonwealth - v. Fernette -1
398 Mass. 658 (1986)
Commonwealth v. E'errara,
368 Mass. 182 (19'15) -
Commonwealth v. Fryar,
.-
425 Mass. 237 (1997)
Commonwealth v. Gilmore,
399 Mass. 741 (1987)
ii
49, 50
48
45
48
35
25
48
29
48
25, 26
24
38, 39

Commonwealth v. Gould,
380 Mass. 672 (1980)
Commoriweal t h v . Harr ington, -
379 Mass. 446 (1980)
-
- Cornonwealth v. He1 fant,
398 Mass. 214 (1986)
Commonwealth .. v. Hinds,
457 Mass. 83 (2010)
Commonwealth ... v. Holloway,
44 Mass. App. Ct. 469 (1998)
Commonwca1.th v. Hosey,
368 Mass. 571 (1975)
Commonwealth - v. Jenks, --
426 Mass. 582 (1998)
Commonwealth v. Lapaqe, _" ".
435 Mass 480 (2001)
Commonwealth v. MacNeill, -
399 Mass. 71 (1987)
- Commonwealth v. Magee,
423 Mass. 381 (1996)
~. Cornonwealth v. Mavrcdakis,
430 Mass. 845 (2000)
Commonwealth v. Mills,
436 Mass. 387 (2002)
iii
41
30
34
28
34
46
24
25
48
44
44
41, 42

Commorirrealth v. Moore,
52 Mass. App. CI;. 120 (2001)
-. Commonwealth v. Mosby,
11 Mass. App. Ct. 1 (1Y80)
-. Commonwealth v. Murphy,
442 Mass. 485 (2004)
Commonwealth v. NOVO,
- -
449 Mass. 84 (2007)
Cornrnonwealth v. Pierce,
419 Mass. 28, 32-33 (1994)
Commonwealth ... v. Rivera,
37 Mass. App. Ct. 244 (1994)
-, Commonwealth v. Rodriguez, -
378 Mass. 296 (1979)
Commonwealth v. Rosari.0, .~
444 Mass. 550 (2005)
Commonwealth v. Rutledge,
-x-
356 Mass. 499 (1969)
Commonwealth v. Shipps,
399 Mass. 820 (1987)
--- commonwealth v. Silanskas,
433 Mass. 678 (2001)
Commonwealth v. Simpson,
434 Mass. 570 (2001) .
Commonwealth v. Sneed, --
iv
41
40
48
35
26
29
38
35
49
45
45, 46
24
39

,376 Mass. 86'7 (1978)
-..~ Commonwealth
388 Mass. 749 (1983)
. v. Sylvester,
Commonwealth v. Tavares,
385 Mass. 140 (1982)
Commonwealth v. Taylor, -~
398 Mass. 725 (1986)
Commonwealth v. Ward,
426 Mass. 290 (1997)
commonwealth ~. . v. White,
48 Mass. App. Ct. 658 (2000)
Coyote-v. Uniited States, -
380 F.2d 305 (loth Cir, 1967)
Lattimore v. Dubois,
152 F.Supp.2d. 67 (lst Cir. 2001)
-. Mathews v. United .- States,
485 W.S. 58 (1988)
Miranda -_ v. Arizona,
384 U.S. 436 (1966)
-. Oregon v. Bradshaw,
462 U.S. 1039 (1983)
Quercia v. United States, -
289 U.S. 466 (1933)
United States v. Josleyn, .-
99 F.3d 1182 (lSt Cir. 1996)
-
V
39
44, 45
4s
45
41
44
28
24
43
43
39
30

United States -. v. Pratt,
73 F.3d 450 (lSt
Cir. 1996)
United States v. Rodriguez-Rivera,
473 ~.3d 21 (Yt Cir. 2010)
A.Other Authorities
Massachusetts General Laws
c. 278 533e
vi
34
40, 41
41

Issues Presented:
-_
I. Whether defense counsel’s refusal to sequest an
instruction on involuntary manslaughter created a
substantial likelihood of a miscarriage of justice
where one witness, Naecmah Mitchell, saw the shooter
not aimj-ng at anyone.
2. Whether defense counsel‘s failure to request an
instruction or1 1) voluntary manslaughter and 2) self
defense created a substantial likelihood of a
miscarriage of justice where thc defcndant’ s
admission to a friend, coupled with Naeemah
Mitchell’s testimony, supported the instruction.
3. Whether defense counsel.'^ fai-lure to object to
reference to Erown’s prior incarceration created a
substantial like]-ihood of a miscarriage of justice.
4. Whether the trial judges‘ gratuitous
interjections to defense counsel’s opening
statement, exarninati,on of witnesses and closing
argument created a substantial like1,ihood of a
miscarriage or justice.
5. Whether the denial of the defendant’s motion to
suppress his statements constitutes reversible error
I

where the Miranda waiver was not made voluntarily
and the statement w as not made voluntarily due to
the defendant's mari. juana intoxication.
6. Whether t.hjs Court should exercise its power of
review under Massachusetts General Laws c. 278 S33e
and reverse the defendant's conviction.
Statement of the Case:
.-
On or about November 16, 201.1 a grand jury
sittinq in Suffolk County returned indictments
against Cornelius Brown charging h im with murder,
carrying a firearm arid unlawful possession of a
firearm [App. 1-31. Among the motions filed was a
motion to suppress statements [App. 18-23] to which
the Commonwealth filed an opposition CApp. 24-30].
In January of 2009 the Court, Quinlan, J. conduct-ed
an evidentiary hearing on that motion. The next day
Judge Quinlan denied the motion and issued a
Memorandum of Decision and Order [Addendum]. On
March 18, 2009 trial commenced. It ended on April
6, 2009. The jury found Cornelius Brown guilty of
all three indictments and on April 7, 2009 the
statutory mandated life sentence was imposed [App.
2

141. On April 13, 2009 the defendant filed a timely
notice of appeal [App. 171.
Statement; of Facts:
. Facts Adduced at Hearing -. on Motion , i. to
Suppress .~
On August 17, 2007 Cornelius Brown was arrested
for the shootiny deat-h of Michael Wiggins [Tr.
1/21/2009: 231. Shortly after 1:OO p.m. Boston
Police Detect.ive Dennis Harris met with Brown in an
interview room [TI-. 1/21/2003: 27-28] Brown
declined to have the interview recorded [Tr.
1/21/?009: 321. Brown was given his Miranda
warnings. Harris noted that his speech was sluggi.sh
and slow as if hc had just woken up [’L’r. 1/21/2009:
34, 441. He agreed t o speak to Harris and signed
the Miranda warning form [Tr. 1/21/2009: 38-41].
Brown stated “that he had smoked some weed and took
a couple of Vicodins a couple of hours earlier” [Tr.
1/21/2009: 441. Brown denied knowing anybody on
Arbutus Street, the site of the shooting [Tr.
1/21/2009: 44-45]. Brown denied being present at
the scene that day [Tr. 1/21/2009: 461. He then
stated that he did not want to speak to the officer
3

a
0
e
0
and asked for a lawyer. At that. point the interview
was terminated [Tr. 1/21/2009: 46-47]. The entire
interview process lasted between fifteen and twenty
minutes [Tr. 1/21/2009: 461. Harris admitted that
Brown was exhibiting symptoms of marijuana
i.ntoxicatfion [Tr. 1/21/2009: 621 . Marijuana and
marijuana paraphernalia were found in Brown's
presence at the time O E his arrest [Tr. 1/21/2009:
661.
Statement of Facts Adduced at T rial
COMMONWEALTH' S CASE :
The July 4, 2007 Cookout:
-. -- ~-
Pamela Wiggins testifi.ed that every Fourth of
July she hosts a party at. her home on 14 Arbutus
Street [Tr. 3/27/2009: 261. Ms. Wiggins estimated
that well over f ifty people were present for her
barbeque on July 4, 2007 [Tr. 3/27/2009: 20071.
Around 7:20 p.m. her boyfriend Willie Miller entered
her home to inform her that the victim had j ust been
shot: outside [Tr. 3/27/2009: 29, 511. She heard
that Dante was the shooter [Tr. 3/27/2009: 361. She
4

t-old this to the po1Lce. She also told them thaL
Dante dropped his hat [Tr. 3/27/2009: 451.
Pam's daughter Nicole Wigqins was also at the
cookout [Tr. 3/27/2009: 641. She recalled Webb
running past, her and then seeing the victim on the
ground, suffering from gunshot wounds [Tr.
3/27/2009: 69-70]. She did not see a gun in Webb's
hand [Tr. 3/27/2009: 69, 721.
Anita Mitchell attended her aunt Pamela
Wiggins' cookout: on Arbutus Street on July 4, 2007
[Tr. 3/24/2009: 141 . She arrived close t.o 6:OO
p.m. [Tr. 3/24/2009 1441. She went therre with her
then boyfriend Dante Webb in a distant friend's
Mercedes [Tr. 3/24/2009: 1441. Webb carried a semi-
automatic handgun that evening [Tr. 3/24/2009: 1461.
Webb and Anita's uncle, Ariel Wiggins argued over
how Wiggins had cooked some of the food at the
cookout [Tr. 3/24/2009: 1581. Webb then argued with
her uncle Doming0 [Tr. 3/24/2009: 159, 1611. Webb
and Ariel then argued again. This confrontation was
more heated [Tr. 3/24/2009: 1631. Webb retreated to
some friends, one of whom was Brown [Tr. 3/24/2009:
5

1701. The friends were from Morris Street in
Dorchester [Tr. 3/24/2009: 1731. Anita saw Webb and
her cousin Kcith fighting [Tr. 3/24/2009: 1821.
Keith hit Webb with a glass bottle [Tr. 3/24/2009:
1821. Mitchell tried to break up t..he fight [Tr.
3/24/2009: 1831. She never saw anyone with a weapon
during this fight [Tr. 3/24/2009: 1871. She then
heard about three gunshots close together [Tr.
3/24/2009: 187-1831. Mitchell then saw Michael
Wigyins an the ground [Tr. 3/24/2009: 1921. Her
cousin's wife Veronica started CPR on Wiggins [Tr.
3/24/2009: 1941. She recalled Webb leaving his hat
at the scene [T,r. 3/24/2009: 1951. Mitchell left
the scene with Webb [Tr. 3/24/2009: 1971.
Shalanda Fenner also attended the July 4t''
barbeque [Tr. 3/25/2010: 311. As she approached the
party by car she saw "two guys fighting" and "a
couple of guys surrounding them" [Tr. 3/25/2010: 41,
421. She was accompanied by four other people [Tr.
3/25/2010: 711. She saw no weapons [Tr. 3/25/2010:
431. Fenner next observed an African American male
withdraw a gun. This individual was to her left,
6

a
e
a
e
e
the dri.ver’s si.de of her vehicle [Tr. 3/25/2010:
441. The man aimed the gun ;ind fired two shots.
Fenner clucked down [Tr. 3/25/2010: 461. Her
daughter Charda and her daughter‘s friend Br.i.an were
also in the car. They too ducked and started
screaming [Tr. 3/25/2010: 461. Fenner described the
shooter as African Amcr.i.can, 5’6” to 5‘9” tall,
twenty five to thirty five years old, stocky, husky
wearing baggy shortis aiid a whitc tee shirt: [Tr.
3/25/2010: 50-531. He was also wearing a baseball
hat [Tr. 3/25/2010: 511. The shooter was still
wearing his baseball hat as he fled [Tr. 3/25/2010:
531. The victim was holding a plate of food. After
e being shot he dropped in front of her car, wiggling
0
and vomiting [Tr. 3/25/2010: 57-58]. On cross-
examination Fenner stated that she believed that a
third shot was fired. Edmond Whj.te also heard three
gunshots fired [Tr. 3/25/2010: 202-2031. Fenner did
not know where that third shot came from [Tr.
3/25/2010: 8 4-85]. Fenner offered that if only two
shots were fired “one could have come from somewhere
else“ [Tr. 3/25/2010: lUO-lOl] .
7

Ariel Wiggins had been at the cookout for a few
hours before interacting with Dante Webb [Tr.
3/25/2010: 1071. Webb approached him and the two
had words about Wiggins' daughter's mother Jada [Tr.
3/25/2010: 108-1091. Apparently, one year prior to
the shooting Webb and Jada had a verbal altercation
[Tr. 3/25/2010: 1101. However, not until July 4,
2007 had Ariel even met Webb [Tr. 3/25/2010: 1101.
Ariel left- the backyard and encountered the
dcfendant. The two cxchanqed greet.ings [Tr.
3/25/2010: 112-1141. They knew each other- from
being incarcerated together for a f ew months in the
Suffolk County House of Correction [Tr. 3/25/2010:
113, 135, 173-1791. Ariel went back to the backyard
and saw Webb throw food at his uncle Domingo [Tr.
3/25/2010: 1181. Later on, Ariel's altercation with
Webb resumed. This time it became physical [Tr.
3/25/2010: 1191. Ariel heard gunshots and his fight
with Webb stopped [Tr. 3/25/2010: 1231. Shortly
thereafter he saw Brown running towards Blue H i l l
Avenue with a gun in his left hand [Tr. 3/25/2010:
125-1271. Ariel previously described the shooter as
8

wearing a red shirt and red hat [Tr. 3/25/2010: 156-
1571. He never identified the defendant as the
shooter [Tr. 3/25/2010: 1611.
Also on July 4, 2007, Naeemah Mitchell and her
two sons were at her aunt's cookout on Arbutus
Street [Tr. 3/26/2009: 7-81. Naeemah saw her uncle
Ari.el arguing with Dante Webb [Tr. 3/26/2009: 11,
241. She later saw Webb meet up with some friends,
onc of them fitting the description of Webb and
wearing a baseball hat with a "B" on it [Tr.
3/26/2009: 18-19]. Mitchell saw her cousin Keith
Wiggins hit Webb over the head with a bottle. Keith
Wiyyiris and Webb then started fighting [Tr.
3/26/2009: 301. Short1.y thereafter Naeemah s aw the
person with the "B" on his baseball hat holdi.ng a
revolver [Tr. 3/26/2009: 351. She was able to
identify the defendant through photographs, Exhibit
40 [Tr. 3/26/2009: 47, 49-50]. This person fired
the gun three times [Tr. 3/26/2009: 381. He did not
appear to be aiming at anyone in particular [Tr.
3/26/2009: 381. She later learned this person's
nickname was Banga, one of the defendant's nicknames
9

[Tr. 3/26/2009: 441. ACter the shooting the shooter
continued to braridish the gun to ensure his escape
l'rr. 3/26/2009: 401. Mitchell saw the victim shot
and holding his sLomach [Tr. 3/26/2009: 421. On
cross-examination Naeemah admitted that she saw Webb
arguing with another individual who motioned towards
his waist area [Tr. 3/26/2009: 651, as if he had a
gun [Tr. 3/26/2009: 671, Naeemah al,so admitted to
having selected a photograph of someone else as
being the shooter notwithstanding the fact that
Brown was among those in the photographs [Tr.
3/26/2009: 95-961.
Paramedic Roberta Rumsis responded to the scene
shortly before 7:30 p.m. [Tr. 3/20/2009: 1291. She
observed Wiggins unresponsive and in a state of
shock [Tr. 3/20/2009: 1321.
On July 4, 2007, the day he was shot, Michael
Wiggins was twenty two years old [Tr. 3/20/2009:
631. He was a student at the Roxbury Community
College [Tr. 3/20/2009: 651.
The crime scene and initial suspects:
10

On July 4, 2007 at approximately 7:20 p.m.
Rostori Pol.ice Officer James Conway responded to a
call for a shooting at Ashton and Arbutus Streets in
Mattapan [Tr. 3/20/2009: 70-711. iIe observed
between ci.ghty and one hundred people in a scene
described as chaos LTr. 3/20/2009: 72, 1.071. Conway
saw Michael Wiggins suffering from gunshot wounds
[Tr. 3/20/2009: 73-741. He was made aware of a blue
lied Sox baseball cap at t.he location of Ashton and
Arbutus [Tr. 3/20/2009: 81, 2231. Officer Kevin
Swan also responded to a scene he termed chaotic
[Tr. 3/20/2009: 1471. Swan located a spent
projectile on a sidewalk alonq Ashton Street [TI.
3/20/2009: 166, 171-1721.
Sergoant Detective Joseph MacDonald responded
to the crime scene. He obtained information that
Dante Webb and Naeemah Wiggins were potential
suspects in this case [Tr. 3/23/2009: 471. Webb was
Anita Mitchell's boyfriend [Tr. 3/23/2009: 481.
MacDcnald related that Edmond White, and individual
who fit a descri.ption of the suspect was interviewed
by homicide detectives to no avail [Tr. 3/23/2009:
11

52, 701. Detective Dennis Harris interviewed Edrnorid
White at. Roston Police Headquarters the night of the
shooting [Tr. 3/30/2009: 901. White was the
operator of a grey Mcrcedes t-hat was stopped not.
long after the incident [Tr. 3/30/2009: 901. White
was riot Mirandized and was not a suspect at the time
of the interview [Tr. 3/30/2009: 1111.
At the ti.me of trial Boston Police Detective
Wayne Williams had been with the department for
eighteen years [Tr. 3/24/2009: 341. Williams
responded to the crime scene around 7:25 p.m. [Tr.
3/24/2009: 361. By that time the victim had been
removed [Tr. 3/24/2009: 383. Williams spoke with
Doming0 McKinney, a lacal firefighter [Tr.
3/24/2009: 431. Williams and McKinney went to the
back of 14 Arbutus Street, the scene of a barbeque
[Tr. 3/24/2009: 161. Williams spoke with Naeemah
and Pam Wiggins [Tr. 3/24/2009: 471. During
Williams’ investigation the name Dante Bedl came up
[Tr. 3/24/2009: 481 as did Nestor Cruz [Tr.
3/24/2009: 561. Williams created photo lineups for
Bcal and Cruz [Tr. 3/24/2009: 58-61]. None of these
12

lineups were shown to any witnesses [Tr. 3/24/2009:
631.
Brown' s statements :
On AugusL 17, 3.007 Boston Police searched
Darlcne Jackson's home on Mora Street in Boston [Tr.
3/23/2009: 841. They were looking for her brother,
Cornelius Jackson [Tr. 3/23/2009: 841. Jackson to3.d
the police that Brown told her that: "some shit
happened that I'm getting bl.amed for so I won't be
around for a while" [Tr. 3/23/2009: 901. Also on
August 17, 2007 police searched Veronica Copeland's
home in Brockton looking for Cornelius Brown. He
had just left her home earlier that morning [Tr.
3/20/2009: 1831. Brown told her that. he believed he
was going to be shot: so he shot the victim at a
cookout in self-defense [Tr. 3/20/2009: 1831. He
told her that: either the victim or one of' his
friends were going to shoot him [Tr. 3/20/2009:
1861.
The photographs, the photographic arrays and the
"wanted poster":
Raquel Wiggj.ns was friendly with Officer Walter
Mitchell. The two grew up together [Tr. 3/26/2009:
13

11.11. She too was at the July 4, 2007 cookout [Tr.
3/26/2009: 1121. Raquel used to date Mark Webb,
Dante Webb’s brother [Tr. 3/26/2009: 1361. She
remembered the defendant beinq at the pa.rty [Tr.
3/26/2009: 1391. She photographed Brown at the
party [Tr. 3/26/2009: 144, Kxhibit 401. She had
also photographed him in March o.f 2007 [Tr.
3/26/2009; 147, Exhibit 371. Raquel observed the
Webb-Ariel fight at the intersection of Arbutus and
Ashton [Tr. 3/26/2009: 1511. She saw her cousin
Keith hit Webb wi-th a bottle [Tr. 3/26/2009: 1531.
Raquel saw Cornelius Brown with a gun in his hand
approach Michael Wiggins [Tr. 3/26/2009: 1571. She
believed that Brown was shooting at the victim [Tr.
3/26/2009: 1581. After that day Raquel met with
Walter Mitchell and provided him with the
photographs she had taken [Tr. 3/26/2009: 1721.
Using the photographs she told Officer Mitchell that
Brown was the shooter [Tr. 3/26/2009: 1741. On July
31, 2007 Boston Homicide Detective Tod Herron
received a call to assist in a photo array [Tr.
14

3/2?/2009: 101. He was present whcn Raquel Wiggins
signed t.he photo array card [Tr. 3/27/2009: 121.
Whi1.e at the scene Officer Swan met with Raquel
Wiqgins who told him thal: she wanted to speak with
Officer Walter Mitchell [Tr. 3/20/2009: 1571.
Raquel also told him (;hat she knew who shot Wiggins
and that she had photographs of him [Tr. 3/20/2009:
1591. On July 7 , 2007 Sergeant Detective Joseph
MacUonald was approached by Officer Walter Mitchell.
M,itchell provided h i.m with some photographs to I.atcr
be used for a "wanted poster" [Tr. 3/23/2009: 581.
The poster or flier was created and distributed
throughout the Boston Police Department [Tr.
3/23/2009: 621. Mitchell had received photographs
of the defendant from Raquel Wigqins taken the day
of the killing [Tr. 3/23/2009: 1171. The
photographs were used to create the flier [Tr.
3/23/2009: 1211. Officer Anthony Williams saw the
flier on MacDonald's computer screen [Tr.
3/23/2009:63-641. Mitchell pointed out the picture
of Brown that Raquel Wiggins identified [Tr.
3/24/2009: 12-13]. On July 10, 2010 Boston Police
15

Officer Anthony Williams was asked by Sergeant
MacDonald to look at a .flier on a computer screen
[Tr. 3/25/2010: 201 + He recoqni.zed the photograph
as tlhe defendant, Cornelius Brown. He and Brown had
grown up t-oyethcr in the same neighborhood [Tr.
3/25/2010: 211.
On August 10, 2007 Boston Police Detective
Robert Kenncy showed a photo array to Anita Mitchell
[Tr. 3/24/2009: 2431. Mitchell recognized
photograph number 3ix as Pooky [Tr. 3/24/2009: 2.183.
Errol Mitchell a longtime fricnd of Brown's knew
Brown as Pook [Tr. 3/24/2009: 241.
The search for Brown and the arrest:
Dawneca Simpson and Cornelius nrown have a
son together [Tr. 3/24/2009: 1291. In 2007 Simpson
was living in Brockton [Tr. 3/24/2009: 1291. On
August 17, 2007 the police went to her home looking
for Brown. Simpson had not seen him since May of
2007 [Tc. 3/24/2003: 1301. She had however spoken
with him a few days before August 17, 2007 [Tr.
3/24/2009: 1311. Brown told her that he was lying
low and that he was caught up in something [Tr.
16

3/24/2009: 1.321. Simpson told this to the police.
They t-hen asked her to contact Brown and that they
had a warrant. for him for murder [Tr. 3/24/2009:
1341. Simpson asked Brown if he intended to turn
himself in. He repl.ied that he did not [Tr.
3/24/2009: 1361. When she mentioned to Brown that
the warrant; was for murder he sighed and did not
respond CTr. 3/24/2009: 1381.
In August of 2007 Boston Police Officer Stephen
Ridge was assigned to locate Cornelius Brown and
arrest. him for murder charges [Tr. 3/30/2009: 20-
211. On August 17, 2007 he went to Dawneca
Simpson's home in Brockton. Simpson and Brown had a
child together. Simpson agreed to call Brown in the
presence o€ Ridge and other officers [Tr. 3/30/2009:
261. Simpson told Brown about the charges and that
the officers intended to arrest. him. Brown
threatened to run ['l'r. 3/30/2009: 301. Ridge later
tried three other addresses and was unable to locate
the defendant [Tr. 3/30/2009: 331. Later that
morn.ing Ridge went to Veronica Copeland's home in
Brockton [Tr. 3/30/2009: 351. Brown was not there
17

however Copeland provided information t-hat led Ridge
and his crew t-o Bridqewater. There, at Lisa Alien's
home on Ma.i.n Street Cornelius Brown was arrested
LTr. 3/30/%009: 37-39]. In Brown's possession was a
bag full o:t clothirig and toiletries [Tr. 3/30/2009:
431.
Sergeant Detective Bri.an Albert met with
Brown's sister, Dareline Jackson on the morning of
August 17, 2007 at her home on Mora Street in
Dorchester [Tr. 3/30/2009: 62-63]. Jackson told
Albert that she I.ast spoke with Brown on Ju1.y 4,
2007 and that Brown told her that; "something bad had
happened, and he was going to be gone for a while"
[Td. 3/30/2009: 6/11. Albert was present later that
morning when Brown was arrested [Tr. 3/30/2009: 691.
Brown initially gave some resistance, then relented
to the arrest process [Tr. 3/30/2009: 691. Albert
could not tell whether or not Brown was under the
influence of any substance at that time [Tr.
3/30/2009: 741.
The post-arrest interview:
18

On August 17, 2007 Detective Harris interviewed
Brown. Brown refused to have the interrogation
recorded [Tr. 1/23/2009: 32; Tr. 3/30/%009: 1461.
His responses were "sluggish as if one had just
woken up, arid he Younded very slow, very sluggish in
his response..;" [Tr. 1/21/2009: 34, 42; Tr.
3/30/2009: 1481. Harris testified that Brown denied
knowing anyone on Arbutus Street acd t.hat he had
nothing to say because he was not there that day
[Tr. 1/21/2009: 44, 45; 'Tr. 3/30/2@09: 154-1551.
Brown told Harris that Harris could talk all he
wanted and later the interrogation was terminated at
Brown's request [Tr. 1/21/2009: 46; Tr. 3/30/2009:
1551. Brown admi-tted to taking some Vicodin and
smokiny marijuana earlier the day of the interview
[Tr. 1/21/2009: 14; Tr. 3/30/2009: 1541. The entire
interview process lasted fifteen minutes [Tr.
1/21/2009: 16; 3/30/2009: 1571. On cross-
examination Uarris conceded that during the
interv.iew process it appeared that Brown was under
the in.Eluence of "something" [Tr. 1/21/2009: 62; Tr.
3/30/2009: 184-1851 .
19

The ballistics evidence:
Ballistici.an Sergeant Detective James 0' Shea
determined that t.he bullet recovered was fired from
either a .30 or a .357 revolver [Tr. 3/27/2009: 121,
1321.
The cause of death:
Dr. Henry Nields testified that. Wiggins died
from complications of gunshot. wounds to his torso
[Tr. 3/30/2009: 2161.
DEFENDANT' S CASE :
Shirley Sweeney, an accountant from Roxbury was
at the July 4, 2007 cookout [Tr. 3/31/2009: 71.
Around '7:20 p.m. Sweeney recalled a man running up
the street with a gun i n his hand [Tr. 3/31/2009:
111. The man was running from Arbutus towards Blue
Hill Avenue. He was wearing a white tee shirt and
blue jeans [Tr. 3/31/2009: 131. The man had
shoulder length hair [Tr. 3/31/2009: 131.
Boston Police Detective Peter McLaughlin showed
Naeemah Mitchell a photographic array on August 7,
2007 [Tr. 3/31/2009: 261. Mitchell selected a
photograph of someone other than the defendant [TI.
20

3/31/2009: 30-331. She stated that this person
“looks similar to the one who shot Michael” [Tr.
3/31/2009: 301.
Boston Poll.ce Officer Bret Gianneti arrived at:
the scene and met with Shalanda Fenner [Tr.
3/31/2009: 481. Fcnrier told him that a black male
with a white and black hat: shot Wigqins [Tr.
3/31/2009: 501.
-. Summary of - the Argument: -
1.One of the witnesses presented by the
prosecution, Naeemah Mitchell, testified that
she saw the shooter shoot the gun in the
direction of an altercation. According to
Mitchell, the shooter was not shooting at
anyone but shooting as he was backing up. Trial
counsel never requested an instruction on
involuntary manslaughter.
....................... 23
2. Two witnesses provided testimony at trial
suggesting that Brown acted in self-de.Eense at
the time of t.he shooting. One of tihe witnesses
21

2
0
e
a
a
a
stated that Brown admitted to the shooting and
that he was goiny to be shot so he shot first.
The other witness provided corroborating
testimoriy thaL someone reached Lowards his
waist area as if he had a gun. The prosecutor
and the judge agreed that a manslaughter
instruction was warranted. Defense counsel
refused the instruction.
....................... 26
3. To support the testimony of one of his
witnesses, the prosecutor adduced evidencc at
trial that Brown had previously been
incarcerated. The prosecutor buttressed the
testimony hy calli.rig the keeper of the records
to ayain prove that Brown had been locked up.
The was unnecessary and inexplicably received
without objection.
....................... 32
0 4. Throughout the trial, the judge interrupted
a
the defense attorney's efforts to defend his
client. This occurred during the opening
statement, during witness examination, and
22

during the summaLion. A review of several
Massachusetts appellate decisions indicates
that this is not an isolated incident but a
repetitive pa I.tern.
....................... 36
5. Shortly after his arrest, Brown was
interrogated. The detective conducting the
interrogation admitted that Brown appeared to
be under the influence of marijuana. Both the
Miranda waiver and interrogat.i.on were tainted
by this fact. Nevertheless, the judge refused
to suppress the statement
....................... 43
6.This Court should exercise its powers pursuant
-. Argument:
to M.G.L. c. 278 533E and reverse the
convict.ion.
...................... 41
Defense counsel’s refusal to request an
instruction on involuntary manslaughter,
created a substantial likelihood oE a
rniscarriaqe of justice where one witness,
Naeemah Mitchell, saw the shooter not aiming at
anyone
23

Invo3.untary manslaughter is defined as an
unlawful homicide where “wanton and reckless conduct
causes death, or . , . where an unintentional
killing ‘result[s] fr-om a battery riot amounting to a
felony which the defendant knew or should have known
endanyered human life. ‘’ Commonwealt-h v. Simpson, 434 I -
Mass. 570, 590, 750 N.E.2d 977 (2001), quoting
Commonwealth v. -_ Fryar, 425 Mass. 237, 248(1997).
It is well established that “a defendant is
entitled to an instruction as to any recognized
defense for which there exists cvi.dence sufficient
for a reasonable jury to find in his Eavor.” Mathews
v. -. United States, 485 U .S. 58, 63 (1988). This
Court has held that ‘I [i] n determining whether an
involuntary manslaughter instruction must be given,
we ask whether any ‘reasonable view of the evidence
would have permi.tted thc jury to find ‘wanton and
reckless’ conduct rather than actions from which a
‘plain and strong likelihood‘ of death would
follow.” Commonwealth v. D raley, 449 Mass. 316, 331
--- -
(20071; - Commonwealth - v. -. Jeflks, ,_ 426 Mass. 582, 585
(1998). In making this determination, this Court
24

will "draw all reasonable inferences from the
evidence in favor of the defendant. " Commonwealth v.
2- D ~ U S , 436 Mass. '719, 731 (2002). The evidence i s
viewed in the light most favorable to the defendant.
Commonwealth v. Tjaparje, 43.5 Mass. 480, 481 (2001).
-
Naeemah Mitchell testified that the Shooter was
shooting "towards the fight. [The victim] was .in
the direction of the fight. He didn't reach the
fight yet" [Tr. 3/26/2009: 38
shooter appeared to be aiming
responded "[nlot: that I've se
. When asked if the
at anybody Mitchell
n. 1 just seen him
pull out: the qun and he started firing, like backing
up a bit as Re's shooting the gun.. ." [Tr.
3/26/2009: 381. In Commonwealth .- v. -- Ferrara, 368
Mass. 182 (1975)' this Court held that an
instruction on involuntary manslaughter is required
where a witness testified that the defendant shoQter
was not aiming at the victim. Id. at 190. Here, as
in Ferrara, Naeemah Mitchell's testimony provides
the basis for the involuntary manslaughter
instruction.
25
-

‘Trial counsel’s failure to request an
instruction on involuntary mans1,aughter created a
substanti-a1 likelihood of a miscarriage of justice.
Commonwealth v. Pierce, 419 Mass. 28, 32-33 (1994).
- -
Article 12 of the Massachusetts Declaration of
Riqhts and the Fifth and Fourteent-h Amendments to
the IJnited States constitution demand t-kat this
appeal. be al.lowcd.
Defense counsel‘s failure to request an
instruction on 1) voluntary manslaughter and 2)
self defenee created a substantial likelihood
of a miscarriage of justice where the
defendant’s admission to a friend, coupled w ith
Naeemah Mitchell’s testimony supported the
instruction
According to Veronica Copcland, Brown admitted
to shooting the vict.i.m at the cookout because he
believed he was going to be shot. He stated that he
acted in self-defense [Tr. 3/20/2009: 1831. He told
her that either the victim or one of his friends
were going to shoot him [Tr. 3/20/2009: 1861
addition, Naeemah testified that she saw Dan
arguing with another individual who motioned
In
e Webb
towards
his waist area [Tr. 3/26/2009: 651, as if he had a
gun [Tr. 3/26/2009: 671.
26

Before the trial concluded, defense counsel
alerted the judge to the fact: that he did not want
the jury to consider manslaughter [Tr. 3/26/2009:
10-141. The assistant district attorney in essence
agreed that such an instruction was in order where
he twice laid out the foundation for voluntary
manslaughter and the defenses stemming from this
scenario. He stated:
"The defendant Cold Miss Copeland and Miss
Copt?l.and told this jury that? the defendant
stated he was at a cookout with a friend, the
friend had an altercation, the friend was hit
with a bmttle, and that Lhey going to shoot
him, him being the defendant, but he shot first
in self-defense." [Tr. 3/30/2009: 11-12].
The judge then commented:
"He shot first in self-defense. So, assuming,
arguendo, that's true, that would mean what he
said to this lady was that he shot in his own
self-defense or i n the defense of somebody
else. " [Tr. 3/30/2009: 121.
The assistant district attorney responded:
"Well, it could be interpreted either way, and
when pressed on it Miss Copeland indicated that
she didn't inquire any further, didn't ask him
anything else about it." [Tr. 3/30/2009: 12-
131.
27

Voluntary manslaughter:
"In decidjng whether a defendant is entitled to
a voluntary manslaughter instruction based on either
reasonable provocation or excessive use of force in
self-defense, we v iew the evidence in the light most.
-_
favorable to the defendant." Commonwealth v. Hinds,
457 Ma$s. 83, 88 (2010): Commonwealth - v. Rcevedo, -~
446 Mass. 435, 442-443 (2006); Lattimore v. Dubois,
152 F.Supp.2d 67, 88 (1' Cir. 2001). Manslaughter
instructions should be given when "any view of the
evidence will permit; a finding that Lhe offence
is manslaughter and not murder." Comrrionwealth ._ v.
Brown, 387 Mass. 220, 227 (1982), quoting
Commonwealth ,- v. LeP'age, 352 Mass. 403, 419 (1967);
-, See ._ -. Lattimore, - 152 F.Supp.2d at 87-88. Mans1,aughter
is defined as "the taking of human life by an act
not justified in law, but without malice
aforethought which is necessary to constitute
murder." Commonwealth v. Campbell,
-- 352 Mass. 387,
396-397 (19671. Voluntary manslaughter is defined
as a killing committed in "a sudden transport of
passion or heat of blood, upon reasonable
28

provocation and without mal ice, or upon sudden
combat. " -_ Id., quoting Commonwealth v. Bouvier, 316
Mass. 489, 494 (19.14)- Voluntary manslaught:.er may
be based on a theory of the excessive use of force
.i.n self-defense. Commonwealth v. Burgess, 450 Mass.
422, 438 (2008).
For a defendant to raise .the issue of self-
defense in this context, "there must be evidence of
an overt act. against the defendant constituting an
assault or threat, . . . sufficient to place the
defendant in actual and reasonable apprehension of
grievous bodi.1~ harm or deat-h". Commonwealth v.
Rivera, 37 Mass. App. Ct. 244, 252 (1994);
---
Commonwealth v. Epsom, 399 Mass. 254, 257-258
__-" --
(1987) .
-. -.
Here, the overt act evidence came €rom Veronica
Copeland's testimony. She made clear Brown's fear
of being shot by either Wiggins or one of his
friends. Trial counsel's failure to request an
instruction on this issue created a substantial
likelihood of a miscarriage of justice.
Commonwealth v. Casavant, 426 Mass. 368, 370 (1998).
---
29

Defense counsel's failure Lo request an
instruction on voluntary manslaughter created a
substantial likclihood of a miscarriage of justice
and Article 12 of the Massachusetts Declaration a€
Rights and the Fifth and Fourteenth Amendments to
the United States constitution demand that this
appeal. be allowed.
Self Defense:
A defendant is entit-led to a jury inst-ruction
on his or her thecrry of the case if there is
sufficient evidence to permit a reasonable juror "t.0
credit the defendant's theory." United States v.
~ ,,.
- Josleyn, 99 F.3d 1182, 1194 (lSt Cir. 1996) .In
Commonwealth v. Harrington,
~ 379
Mass. 446 (1980)
this Court held that " [a} defendant is enti.tled to
have the jury at his trial instructed on the law
relating to self-defense if the evidence, viewed in
its light most favorable to him, is sufficient to
raise the issue." - Id. at 450. The Harrington
decisLon continued that " [ t] here must be eviidence
warranting at least a reasonable doubt that the
defendant: (1) had reasonable ground to believe and
30

actually did believe that he was in imminent danger
o.E death or serious bodily harm, from which he could
save himse1.f only by using deadly force, (2) had
availed himself of all proper means to avoid
physical combat before resorting to the use of
deadly force, and (3) used no more force than was
reasonably necessary :in all the circumstances of the
case. ” Id.
-
According to Veronica Copeland Brown complained
that Wiggins di.d something suggesting that he was
going Lo shoot Brown. This satisfies the first
prong of the -. Harrington test. The proxi.mity of
Wiggins to Brown during the encounLer implies that
Brown could not avoid contact. The force he used
was all necessary. He was going to be shot. To
avoid death he fired firsL, and in self-defense.
Defense counsel‘s failure to request an
instruction on self defense created a substantial
likelihood of a miscarriage of justice, and Article
12 of the Massachusetts Declaration of Rights and
the Fifth and Fourteenth Amendments to the United
31

States constitution demand that this appeal be
allowed.
Defense counsel's failure to object to
reference to Brown's prior incarceration
created a substantial likelihood of a
miscarriage of justice
Ariel Wiggi.ns testified that he met the
defendant while the two were incarcerated in South
Bay [T.r. 3/25/2009: 1131. The prosecutor asked
detailed questions about Wiggins' and Drown's time
at the jail. There was no objection to the
questions. The prosecutor asked:
Q. Did you know Pooh's government name or
his real name?
A. No, I did not.
Q- How did you know Pooh?
A. We was locked up together.
Q. When you say locked up together, where
were you locked up together?
A. South Bay, South Bay Correctional
Center.
Q. Was it a matter of days or months that
you two were locked up together?
A.
Q.
A few months. We were in the same unit
You were in the same unit for a few
months ?
32

A.
Q.
A.
Q.
A.
Q.
Right.
Po you know the ballpark of when that
year might have been?
9'1, around that time. '91? '96?
Do you remembcr anything about the unit
or anything where you were in the same
unit as Pooh?
I belicve it was Red Unit 2-2.
Now, when you say in the same unit does
that mean you actually shared a cell, or
you were just in the same section of the
facility?
A. The same section. [Tr. 3/25/2009: 113-
1.141.
Making matters even worse, the prosecutor called a
records clerk from tlhe Suffolk County House of
Correction to verify the fact that Brown and Wiggins
were incarcerated together [Tr. 3/25/2009: 170-17YI.
The witness, Ilmanda Neff praduced certificates of
discharge and housing records pertaining to Brown's
jail stay [Tr. 3/25/2009: 113, Exhibit 571. Ms.
NefE testified that Brown and Wiggins overlapped at
the institution from January 23, 1997 to April 14,
1998 and from September 14, 1998 through September
14, 1998 [Tr. 3/25/2009: 1751. Ms. NefE discussed
jailhouse units, bed numbers and cell configurations
33

[Tr. 3/25/2009: 175-1791 all of which was offered
without objection.
"It is well settled that the prosecution may
not introduce evidence that a defendant previously
has misbehaved, indictably or not, for the purpose
of showing bad character or propensity to commit the
crime charged." Commonwealth v. - Hall.-, 44 Mass.
App. Ct. 469, 475 (1998); see also Commonwealth v.
Ilelfant, - 398 Mass. 214, 224 (1986). Concededly the
evidence might be admissjblc i f relevant for some
other purpose. For instance, to show common plan,
absence of accident, moti-ve, identity or patte.rn of
conduct. Id.
-
In this case however there was no challenge to
the contention that Wiggins knew Brown. It is
counsel's duty not to "sit idly by while his case is
conspicuously suffering." - United States v. Pratt, 73
.
F.3d 450, 452 (lBt Cir. 1996). Thus, i.t was trial
counsel's obligation to object to the evidence of
incarceration at all times. Such objection would
surely have resulted in the exclusion of such
evidence. "A 3udge has discretion to exclude
34

elevant evidence on the ground that its probative
value is outweighed by thc risk of con.Eusion or
unfair prejudice." - Commonwca1t:h v. Rosario, 444
Mass. 550, 557 (2005). "Trial judges must take care
to avoid exposing the jury unnecessarily to
inflammatory material that might inflame the jurors'
emotions and possibly deprive the defendanL of an
impartial jury." Commonwealth v. --f Berry 420 Mass.
95, 1.09 (1995). Even if the objcctionable evidence
was introduced, inadvertently or otherwise, the
request for a limikiny instruction was in order.
See -~
Commonwealth
" v. ~
Dunn, 407 Mass. 798 807 (1990).
The failure of trial counsel to address this issue
in any way created a substantial likelihood of a
miscarriage of justice. See -. Commonwealth v. - Novo,
449 Mass. 84, 95 (2007).
Defense counsel's failure to object to
reference to Brown's prior incarceration created a
substantial Likelihood of a miscarriage of justice,
and Article 3.2 of the Massachusetts Declaration of
Rj.ghts and the Fifth and Fourteenth Amendments to
35

the United States constitution demand that this
appeal be allowed.
The trial judges' gratuitous interjections to
defense counsel's opening statement,
examination of witnesses and closing argument
created a substantial likelihood of a
miscarriage of justice
Throughout the course of the trial the trial
judge interjected himself into defense counsel's
efforts. He did this sua sponte. Not once was this
done at the urging of the prosecution via objection
or otherwise. It first happened during opening
statement. Defense counsel. stated:
"You're going to hear from other witnesses, and
as my brother is trying to suggest to you, on
the fly. E'or the record, they'll testify about
what they saw, buy you know, we've got Raquel,
we've got Ariel, we've got Anita, and we've qot
Naeemah. "
The judge interjected:
"This is not argument, please. Tell the jury
what witnesses you're going to put on, or what
the evidence is going to be, but no argument,
please." [Tr. 3/20/2009: 581.
The judge did it later that day during defense
counsel's cross-examination of Sergeant Detective
Randall Iialstead. Halstead was working for the
Boston Police Crime Scene Response Unit at that time
36

[Tr. 3/20/2009: 1901. Defense counsel was trying to
show that the police failed to conduct various tests
thereby challenging the adequacy and thoroughness of
their investigation. When he got to the matter of
paraffin tests the judge interrupted and asked the
attorneys to approach side bar [Tr. 3/20/2009: 2411.
Only after the prosecutor told the judge that: the
East-on Police do not conduct this type of test was
counsel permitted to continue with his inquiry [Tr.
3/20/2009: 2421.
The trend continued during defense counsel's
closing argument. He was argui.ng:
"Second incident. You learned from
Naeemah that at some point Dante is, I believe,
the front of the house area, she described it,
and that he is involved with some sort of
dispute wit a neighbor, I believe that his how
she described t.he person as a neighbor.
And during that time, she doesn't see a gun,
but she sees him motioning towards his
waistband as if he had a gun. We a ll know he
did. Anita told us he did."
The judge interrupted and states:
"Counsel, don't make any statements about
anybody. This it not a time to be giving your
opinions about anything. You say 'we all
kinow'. Okay, that's please don't do that."
[Tr. 3/31/2009: 681.
37

Later during defense counsel's closing argument the
Lrial judge interrupted and stated " [clounsel, you
have approximately eleven minutes to go" [Tr.
3/31/2009: 851. After arguments defense counsel
objected [Tr. 3/31/2009: 1261. The judge responded
"[clan I tell you, I 'm not fussy, but .if you're
go.ing on and going on, certainly" [Tr. 3/31/2009:
1261. Tcllingly, the judge did not complain that
about the length of the prosecutor's closing
argument, which was significantly longer. Defense
counsel's argument covered twenty seven pages of
transcript [Tr. 3/231/2009: 61-89]. The
prosecutor's covered thirty four paqes [Tr.
3/31/2009: 89-1231.
Counsel should be able to argue "within the
bounds o f the evidence and the fair inferences from
the evidence". Commonwealth v. - Gilmore, 399 Mass.
741, 745-746 (1987). The failure to perform
scientific tests and evidence tending to show
alleged inadequacies of the police investigation are
-
relevant and admissible at trial. Commonwealth v.
Rodriguez, 378 Mass. 296, 308 (1979) - An attorney
38

can alert the jury to inferences it can draw from
the evidence, and the judge should not invade the
province of the jury to make decisions as to what
i.nferences it may draw from the evidence.
Commonwealth v. Bowden, 3-19 Mass. 472, 486 (1380).
In Gilrnore, on two occasions the judge interrupted
the defense aLtorney' s closing argument and
instructed that jury that it was only to consider
the evidence int.roduced "in fact in this case". - Id.
at 146. In reversing the case this Court held that
the judge's interruption invaded the prov.i.nce of the
jury by striking a permissible argument.
All of the judqe's critical remarks were
directed towards defense counsel. Most o f these
were in the presence of the jury. The remarks
suggested that defense counsel did not know what he
was doing. See Commonwealth v. Sylvester, 388 Mass.
749, 751 (1983). As this Court has recognized, "any
judicial comment is likely to be accorded
substantial weight by the jury." Commonwealth v.
Sneed, 376 Mass. 867, 870 (1978), citing Quercia v.
United States, 289 U .S. 466, 470 (1933). A trial
39
,-
-

0
a
a
a
0
a
judge's comments made in the presence of the jury
"generally have a greater potential. for unfairness ..."
United States v. Rodriguez-Rivera 473 F.3d 21, 28
(1": Cir. 2010) . " [TI he particular danger created by
such criticism in open court is the likelihood that
it will 'impress the jury with the idea that [the
judge] disfavors the attorney and, inferentially,
the position the atLorncy represents.'" Commonwealth
v. -., 11 Mass. App. Ct. 1, 17 (1980), quoting
-_
- .-I
State v. - Pokini,
. 55 Hawaii 640, 645 (1974). In
United States - v. Rodriquez-Rivera, - the First Circuit
-,
Court of Appeals noted that the danger of perceived
partiality from the bench may be mitigated with an
instruction such as: "draw no inference against the
side to whom admonition of the Court may have been
addressed" due to an attorney, "out of zeal €or his
cause doling] something which [was] not in keeping
with the rules of evidence or procedure."Rodriguez-
a Rivera, 473 F.3d at 28.
0
Here, the judge's criticism in open court
undoubtedly impressed the jury with the idea that
the judge disfavored defense counsel and,
40

inferentially, the position that defense counsel
represented. There was no instruction to mitigate
the judge's perceived partiality, and t.he comments
arid intcrruptions were directed towards the detTense
attorney only.
This judge has been criticized by Massachusetts
courts in the past for conduct which is arguably
anti-defense. In - Commonwealth v. White, 48
,.
Mass.App.Ct. 658 (2000) the defendant's sentence was
vacated when the Appeals Court found this judge
offered "ill-advised" comments before sentencing
suggestjng that: the defendant's sentences on prior
convictions were inadequate. - Id. at 662. In
Commonwealth v. Mills, 436 Mass. 387 (2002) this
-
.- --
Court criticized this judge when his personal
feelings .interfered with his sentencing decision.
- Id. at 401. Of particular concern was the judge's
injection o.E his religious beliefs, the impact the
crime would have on the perception of public
employees and the defendant's refusal to admit
culpability for the crimes for which he was
convicted. Id. In Commonwealth .- .- -- v. Moore, 52
.~
41

Mass.App.Ct. 120 (2001) the defendant challenged
this judge's use of the inflection in his voice to
suggest to the jury khat hc did not believe that his
self defense claim had merit. - Id. at 127. Moore
supported his claim with transcripLs from three
other tria1.s and an affidavit of a defense lawyer
all complaining that this judge used the same tactic
in other cases.
Here, the interruptions of defense counsel
without prompting from the Commonwealth were
unwarranted. The effect of these tactics, while
unquantifiable no doubt created a substantial.
likelihood of a miscarriage of justice.
The trial judge's gratuitous interjections to
defense counsel's opening statement, examination of
witnesses, and closing argument created a
substantial likelihood of a miscarriage of justice,
and Article 12 of the Massachusetts Declaration of
Rights and the Fifth and Fourteenth Amendments to
the United States constitution require that this
appeal be allowed.
42

The denial of the defendant’s motion to
suppress his statements constitutes reversible
error where the Miranda waiver was not made
voluntarily and the statement was not made
voluntarily due to the defendant’s marijuana
intoxication
It is well established that the Fifth and
Fourteenth Amendments to the United States
Constitution and Article 12 of the Declaration of
Rights require the exclusion at trial of any
statement made by an accused during a custodial
interrogation, unless the accused has been advised
of his right to remal.n silent and to have an
attorney present during questioning and has
voluntarily and knowingly waived those rights.
-. Miranda .- v. Arizona, 384 U.S. 436 (1966). A statemerit
by an accused must be excluded unless it is made
voluntarily. When a defendant’s ri.ght against self-
incrimination is involved, the Declaration of Rights
provides more protection that the federal
constitution. “Based on the textual differences
between art. 12 and the Fifth Amendment, we have
’consistently held that art. 12 requires a broader
interpretation (of the right against self-
incrimination) than that of the E’i fth Amendment ~
43
’
”

Commonwealth v. Mavredakis, 430 Mass. 848, 858
(2000) quoting - Opinion of thc Justices, - 412 Mass
1201, 1210 (1992) (second brackets in original).
"In determining admissibility in the first
instance, the judge .is undoubtedly bound by the
dictates of Miranda, i.e., j.f its prerequisites have
not been fully met, the confession is without more
involuntary as a matter of Saw, hence inadmissihle
and insubrnissible. But a statement may also be
inadmissible and insubmissible because not factua1l.y
shown to have been freely and voluntarily given,
--
even though the requirements of Miranda have been
fully met.'' Coyote v. United States, 380 F.2d 305,
309-310 (loL'' Cir. 196'7) quoted in Commonwealth -.- v.
I Tavares, 385 Mass. 140, 145 (1982).
"Due process requires a separate inquiry into the
voluntarincss of [a] statement, apart from the
validity of the Miranda waiver." Commonwealth v.
Magee, 423 Mass. 381, 387 (1996). However, the "test
is essentially the same" for both inquiries.
Commonwealth v. Edwards, 420 Mass. 666, 6'10 (1995) .
,.-
It is the Commonwealt-h's burden to establish beyond
44

a reasonable doubt that the statcrnent was made
voluntarily. - See -. Commonwealth v. .-,. Crawford, 429 Mass.
60, 6.5 (1999 ; -- Tavares, 385 Mass. at 151-52. It is
not up to the defendant to establish
involuntariness.
In determining whether a Miranda waiver was
voluntary, knowing, and intelligent, a judge must
examine the totality of the circumstances.
-, CommonweaLth
. - v. Ward, 426 Mass. 290, 295 (1997);
Oreqon v. Bradshaw, 462 U.S. 1039, 1046 (1983).
"Intoxication ... bears on the validity of a waiver
and the voluntariness of a statement." Cornonwealth .-
v. Taylor, _- 398 Mass. '725, 728 (1486). "Spccial care
must be taken in assessing a waiver and the
voluntariness of the statements when there is
evidence that the defendant was under the influence
of alcohol or drugs." Commonwealth v. - Shi-, 399
Mass. 820, 826 (1987). "The Commonwealth bears the
burden of proving beyond a reasonable doubt that any
waiver of Miranda rightis was valid." Commonwealth
v. ~, Silanskas, 133 Mass. 678, 685 (2001). This Court
has held that "police should have been sensitive to
45

whether the defendant was genuinely in a position to
understand the significance of a waiver of his
rights, in particular the importance of having a
lawyer with him during the in terroqa t ion. "
Commonwealth v. Hosey, 368 Mass. 571, 577 (1975).
Here, neither the statement nor the Miranda
waiver was made voluntarily. Detective Harris
admitted that Brown was exhibiting the signs of
marijuana intoxication. He appeared as though he
had just woken up notwithstanding the fact that it
was 1:OO in the aft-ernoon and he had been
transported from Brockton to Boston for the
interrogation. Detective Harris used the word
"sluggish" to describe Brown's behavior .I Brown
made clear that: he had taken some Vicodins and
smoked marijuana a few hours earlier. Consistent
with his representations, marijuana and marijuana
related paraphernalia were found at the time of
Brown's arrest. Unlike the facts in Silanskas,
-
1 Cf. Commonwealth v. Mur&, 442 Mass. 105, 493-494
(2004) (court concluded defendant's Miranda waiver and
subsequent statements were voluntary despite claim he
was under influence of alcohol and drugs as defendant
responded appropriately, was not drowsy or groggy and
appeared no more than hung over).
46

there is no suggestion that Brown was adequately
___
responsive or coherent. The defendant in Silanskas --
provided orficors wit.h his attorney’s telephone
number and he “recited a relatively complex series
of facts and at one point demonstrated how the
viictim had cut. his own wrists and face‘‘. Id. at
685.
-_
Viewed in :its entirety the circumstances
surrounding the Miranda waiver and interrogation
itself suggest that suppression was warranted. The
judge’s failure to suppress the statement is grounds
for reversal
This Court should exercise its power of review
under Massachusetts General Laws c. 278 533e and
reverse the defendant’ s conviction
This Court has recognized that the scope of
review under M.G.L. c. 278 53333 is quite broad and
that this statute acts as a “’safety valve’, by
ensuring review as to all aspects of cases regardless
- . -
of the absence of claims of error.” Commonwealth v.
Gould, 380 Mass. 672 (1980); Commonwealth v. Brown,
376 Mass. 156, 168 (19‘78). By uti.lizing this broad
review power, this Court is able to achieve results
47

"more consonant with justice. " Commonwealth
-. v. .-
Davis, 380 Mass. 1, n.20 (1980) quoting Commonwealth
v. Seit, 373 Mass. 83, 94 (1977 .
While it is true that this Court must give
substantial deference to a trial judge's ultimate
findings and conclusions of law, it. must also make an
independent review of the correctness of the trial
judge's app1,ication of law and constitutional
principles to the facts found. Commonwealth v.
MacNeill, 399 Mass. 71., 76 (1987); Commonwealth v. .-
Fernette, 398 Mass. 658, 662 (1386); Commonwealth v. "_
Corriveau, "- 396 Mass. 319, 326 (1985).
In the case at bar, the defendant respectfully
sugges'ts that this Court is "charged by G.1,. c. 278
S33E with inquiring on every 'capital appeal' whether
a new trial (or rnitiyation of sentence) is called for
in the light of the weight of the evi,dence (or 'any
other reason that justice may require').''
Commonwealth -, v. Ellison "-, 376 Mass. 1 (19'18). Section
33E demands a review of the whole case in "a large or
nontechnical sense.'' Commonwealth v. Bowman, 373
Mass. 760 (1977); Commonwealth .- v. Ellison, - 376 Mass.
48

at 1. Further, "a 'profound doubt' as to the
defendant's guilt generated by the record surely
counts as a compelling instance for a new trial under
533E." - Id., citing -. Commonwealth .. v. Rutledye, 356
Mass. 499, 502 (1969).
In - Commonwealth v. Ciampa, 406 Mass. 257 (1989),
this Court reversed the defendant's conviction and
remanded the case to Superior Court for retrial, even
though certain appellate rights were not preserved at
trial or an issue was not specifically argued on
appeal. The Court noted the special duty assigned to
it under S33E and thus, the necessity to "disregard
omissions of counsel if justice requires us to order
a new trial." - Id. at 268, 269.
In the case now before the Court, Cornelius
Brown strongly urges the use of 533E power of review.
As discussed in the precedi.ng sections of his brief,
the defendant contends that the interests of justice
warrant reversing this case and ordering a new trial
or at a minimum reducing the verdict.
49

CONCLUSION:
-.
For the reasons set out above Cornelius Brown
respectfully requests that this Court allow this
appeal and order a new trial or reduce the verdict.
Cornelius Brown,
By his attorney,
5’0 Congress Street
Suite 525
Boston, MA 02109-4048
617-263-6800
B.B.O. # 551576
SO