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Commonwealth v. Ayala

Supreme Judicial Court of Massachusetts, Hampden

December 6, 2018

Phillip AYALA.

         Argued September 12, 2018

         [112 N.E.3d 241] INDICTMENTS found and returned in the Superior Court Department on July 10, 2007. The cases were tried before Peter A. Velis, J., and a motion for a new trial, filed on February 10, 2011, was heard by C. Jeffrey Kinder, J.

         Myles D. Jacobson, & Michael J. Fellows, Northampton, for the defendant.

          David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth.

         Present: Gants, C.J., Gaziano, Lowy, Budd, & Kafker, JJ.


         KAFKER, J.

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          A jury convicted the defendant, Phillip Ayala, of murder in the first degree on the theory of deliberate premeditation for the killing of Clive Ramkissoon.[1] The defendant [112 N.E.3d 242] raises three core issues on appeal. First, he argues that the evidence at trial was insufficient to support his convictions. Second, he argues that his due process rights under the United States Constitution and the Massachusetts Declaration of Rights were violated by (i) the Commonwealths failure to obtain and turn over discovery related to the sole defense witnesss status as a confidential Federal informant, and (ii) the trial judges decisions declining to compel several law enforcement officers to testify to the defense witnesss status as a confidential Federal informant. Third, he argues that his trial counsel was ineffective for (i) failing to retain and call an expert witness on the accuracy of eyewitness identifications, (ii) failing to retain and call an expert witness on ballistics evidence to testify about muzzle flashes, and (iii) failing to

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admit further evidence of the mental health issues and drug use of a percipient witness for the Commonwealth.

         For the reasons stated below, we conclude that there has been no reversible error. After a thorough review of the record, we also find no reason to exercise our authority under G. L. c. 278, § 33E, to grant a new trial or to reduce or set aside the verdict of murder in the first degree. We therefore affirm the defendants convictions and the denial of the defendants motion for a new trial.

          Background .

          We summarize the facts that the jury could have found, reserving certain details for discussion of the legal issues.

          In the early morning of June 10, 2007, Robert Perez and his friend, Clive Ramkissoon, attended a house party held on the second floor of a house in Springfield. Upon arriving just before 2 A.M., Perez and Ramkissoon encountered a bouncer on the first floor at the bottom of the stairwell that led to the second floor. The first-floor bouncer was posted there to search guests before letting them upstairs to the party. After being searched, the two men went upstairs to the party. As there were not yet many people at the party, Perez returned to the first floor and began speaking with the first-floor bouncer in the entryway of the stairwell.

         Shortly thereafter, as Perez was speaking with the first-floor bouncer, the defendant arrived at the party. As she had done with Perez and Ramkissoon, the bouncer attempted to pat frisk the defendant before allowing him to enter. The defendant refused. After a brief argument related to the search, the defendant aggressively pushed past the bouncer and climbed the stairs to the second floor. A second bouncer intercepted the defendant on the stairs and prevented him from entering the party without having first been pat frisked. The defendant argued with the bouncer and, after yelling and screaming at him, was escorted out of the house. As the defendant was descending the staircase to leave, and just steps away from Perez, the defendant threatened to "come back" and "light th[e] place up."[2] After leaving the house briefly, the defendant returned and kicked in the first-floor door.[3]

         [112 N.E.3d 243] Throughout this interaction inside the house, Perez had an

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opportunity to observe the defendant closely for several minutes.[4] Concerned by the defendants threats and behavior, Perez returned upstairs to find Ramkissoon. The two men walked onto the second-floor porch to "assess the situation" and saw the defendant pacing back and forth on the street in front of the house. Rather than leave with the defendant still outside, given his recent threat to "light th[e] place up," Perez and Ramkissoon decided to wait on the porch for a few minutes. After the defendant moved out of sight, Perez, Ramkissoon, and a female friend decided to leave the party.

         After leaving the house, Ramkissoon and the woman began walking across the road, while Perez, who had stopped to tie his shoe, trailed slightly behind. As they were crossing the road, the woman stopped in the middle of the road directly in front of the house and began dancing. Perez walked over to where the woman was dancing while Ramkissoon kept moving down the road, to the left of the house, toward the area where his vehicle was parked. As Perez approached the woman to guide her out of the way of oncoming traffic, he heard a gunshot and saw a muzzle flash appear near a street light located on the sidewalk in front of a property adjacent to the house.[5] Perez saw the defendant holding a firearm and testified that he was able to identify the shooter as the defendant because the muzzle flash from the gun illuminated the shooters face. He then turned and ran away from the shooting as several more gunshots rang out. Perez, who had previously served in the United States Army, testified that he heard between five and seven shots, which he recognized as .22 caliber bullets based on his military experience.

         Perez soon circled back to where Ramkissoons vehicle was parked and discovered Ramkissoon face down on the street. Perez performed rescue breathing on Ramkissoon and telephoned the police. Police officers arrived at the scene by approximately 3 A.M. It was later determined that Ramkissoon died from multiple gunshot wounds.[6] Perez was soon brought to the Springfield police station, where he gave a statement recounting the events of

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that morning. At the station, Perez identified the defendant from a set of photographs shown to him by police, stating that he recognized the defendants photograph as the "same person who [he] had seen in the stairwell not wanting to be pat frisked by the bouncer there, and then firing the gun outside in the street at [the victim]."

         The reliability of Perezs identification was vigorously challenged by defense counsel on cross-examination. The defense confronted Perez on his ability to accurately identify the shooter under the lighting conditions at the time of the shooting, his recollection of certain events that morning, [112 N.E.3d 244] and the discrepancies between Perezs statement to police on the morning of the shooting and his trial testimony regarding the defendants height and clothing. Additionally, the defense presented evidence showing that Perez suffered from bipolar disorder and posttraumatic stress disorder (PTSD), the latter being a result of his military service.[7] Specifically, evidence showed that he sought psychiatric counselling and used marijuana to cope with the effects of his diagnoses.[8] There was no evidence, however, that Perez was either suffering the effects of these diagnoses or under the influence of marijuana at the time of the shooting.

         Following the close of the Commonwealths case-in-chief, the defense called a sole witness, N.F.,[9] who was the disc jockey at the party. N.F. testified that she knew the defendant and looked up to him, and had seen him multiple times that morning. N.F. also testified that at one point, she was on the second-floor porch and saw the defendant emotional and upset outside after he had been kicked out of the house. She and others attempted to comfort the defendant and suggested that he go home. She testified to then witnessing the defendant leave the party and drive away. N.F. was

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adamant that the defendant left approximately thirty to forty-five minutes before the shooting, stating that he was "gone a long time before [the shooting] even went down." In response to further questioning on her certainty that the defendant was not at the scene at the time of the shooting, she testified, "He was not there. Put my kids on it." Although she did not witness the shooting, she testified that she observed a red Taurus motor vehicle "skidding off" from the scene immediately after the shooting.

          The jury eventually returned guilty verdicts on all three charges, and the defendant was subsequently sentenced to life in prison without the possibility of parole. The defendant now appeals.

          Discussion .

          1. Sufficiency of the evidence .

          On appeal, the defendant argues that the Commonwealth failed to present sufficient evidence proving that he was the shooter. In reviewing the sufficiency of the evidence, we apply the familiar Latimore standard. See Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979). We consider whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Id. The evidence may be direct or circumstantial, and we draw all reasonable inferences in favor of the Commonwealth. Commonwealth v. Rakes, 478 Mass. 22, 32, 82 N.E.3d 403 (2017). A conviction cannot stand, however, if it is based entirely on conjecture or speculation. Id.

          At trial, the Commonwealth primarily relied on the eyewitness testimony of Perez to prove that the defendant was the shooter. The defendant argues, however, that this testimony cannot be used to support his convictions because the jury were incapable of assessing its reliability. The defendants challenge centers on Perezs testimony that he was able to identify the [112 N.E.3d 245] defendant as the shooter because the muzzle flash from the gun "illuminated" the defendants face. The defendant argues that because the illuminating capability of a muzzle flash is not within the ordinary, common experience of a reasonable juror, the jury could not have found that the evidence proved beyond a reasonable doubt, without speculation, that the defendant was the shooter.

          Even assuming, as the defendant argues, that ordinary jurors are unfamiliar with the illuminating capability of muzzle flashes, there was independent evidence that would permit a rational juror to reasonably infer that the crime scene was sufficiently illuminated at the time of the shooting ...

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