Summary
The Massachusetts Supreme Judicial Court affirmed Derrel C. Webb’s convictions for murder in the first degree and unlawful possession of a firearm. The court held that the admission and treatment of testimony given under immunity grants and Federal plea agreements, and the prosecutor’s closing argument concerning witness credibility, did not create a substantial likelihood of a miscarriage of justice, and it found no basis for relief under G. L. c. 278, § 33E.
Topics
Practice areas
Questions Presented
- Whether the prosecutor improperly elicited on direct examination that cooperating witnesses were obligated under immunity grants or plea agreements to testify truthfully.
- Whether the failure to redact attorney and prosecutor signatures from Federal plea agreements created a substantial likelihood of a miscarriage of justice.
- Whether the final jury charge should have instructed the jury that guilty pleas to unrelated Federal charges could not be considered as proof against Webb.
- Whether the judge's failure to give the same 'particular care' credibility instruction for immunized witnesses that was given for witnesses testifying under plea agreements required reversal.
- Whether the prosecutor improperly vouched for the credibility of cooperating witnesses during closing argument.
- Whether the challenged matters, considered cumulatively, created a substantial likelihood of a miscarriage of justice warranting relief under G. L. c. 278, § 33E.
Holdings
- There was no error in permitting the prosecutor to elicit the witnesses' obligations to testify truthfully because defense counsel's opening statement had already attacked the credibility and motivations of witnesses testifying under cooperation agreements and immunity grants.
- The prosecutor did not improperly vouch for the witnesses by arguing that their incentive was to tell the truth rather than lie and by referring to the possibility of perjury charges.
- The omission did not require reversal because the jury instructions, considered as a whole, adequately directed the jury to scrutinize immunized witnesses' credibility and prohibited conviction based solely on immunized testimony.
- The challenged matters, considered individually and collectively, did not create a substantial likelihood of a miscarriage of justice, and no relief was warranted under G. L. c. 278, § 33E.
Key quotations
“Testimony offered by a witness in exchange for the government’s promise of a plea bargain or immunity should be treated with caution, lest the jury believe that the government has special knowledge of the veracity of the witness’s testimony.” (468 Mass. at 32)
“A prosecutor’s position is a delicate one. The prosecutor must be free to argue that such a witness is credible, but may not explicitly or implicitly vouch to the jury that he or she knows that the witness’s testimony is true.” (468 Mass. at 36)
Factual background
The victim, a fifteen-year-old boy, was shot in the head outside or near his Brockton apartment on July 28, 2008, and died shortly thereafter. Multiple witnesses testified that Webb had planned to shoot another person, went to the victim's home with Burton and Taylor, fired several shots, and later acknowledged that he had shot the wrong person. Police recovered .380-caliber cartridge casings and projectiles, and a firearm recovered from Jarreau Pelote's residence was linked to the projectile removed from the victim's body. Several prosecution witnesses testified under immunity grants or Federal plea agreements.
Procedural history
A jury convicted Webb on May 23, 2012, of murder in the first degree under theories of deliberate premeditation and extreme atrocity or cruelty, and of unlawful possession of a firearm. On appeal through new counsel, Webb challenged the admission and handling of testimony given under immunity grants and Federal plea agreements and alleged improper prosecutorial vouching during closing argument. The Supreme Judicial Court affirmed the convictions and declined to grant relief under its independent review authority pursuant to G. L. c. 278, § 33E.