Commonwealth v. Gray (Lawyers Weekly No. 10-098-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑10782 COMMONWEALTH vs. TERRY GRAY. Suffolk. October 5, 2012. ‑ June 5, 2013. Present: Ireland, C.J., Spina, Cordy, Duffly, & Lenk, JJ. Homicide. Assault and Battery by Means of a Dangerous Weapon. Constitutional Law, Severability, Search and seizure, Jury. Evidence, Scientific test, Argument by prosecutor. Practice, Criminal, Severance, Jury and jurors, Voir dire, Instructions to jury, Argument by prosecutor, Motion to suppress, Capital case. Search and Seizure, Consent, Protective sweep, Inevitable discovery. Jury and Jurors. Deoxyribonucleic Acid. Indictments found and returned in the Superior Court Department on September 29, 2005. A pretrial motion to suppress evidence was heard by Charles J. Hely, J.; a motion for relief from prejudicial joinder was heard by Frank M. Gaziano, J., and the cases were tried before him. David H. Mirsky for the defendant. Allison Callahan, Assistant District Attorney (Masai-Maliek King, Assistant District Attorney, with her) for the Commonwealth. DUFFLY, J. The defendant was convicted by a Superior Court jury of murder in the first degree for the shooting of his uncle, Charlie Wilson, on July 9, 2005; assault and battery by means of a dangerous weapon of MacArthur Powell, another uncle, on June 16, 2005; and related firearm and ammunition offenses. The jury were unable to reach a verdict on indictments charging the defendant with murder in the first degree of James Gray, the defendant’s stepfather, and with firearm and ammunition charges related to that offense. The Commonwealth’s theory at trial was that the defendant killed or assaulted the victims because he believed that each of them had sexually molested him as a child. The defendant claims that joinder of the indictment charging assault and battery by means of a dangerous weapon with the indictments charging murder in the first degree was unfairly prejudicial, and that his motion to sever the indictments should have been allowed. The defendant contends also that questions the judge asked the venire concerning their ability fairly to evaluate the evidence notwithstanding the absence of physical evidence such as deoxyribonucleic acid (DNA) or fingerprints linking the defendant to the crimes should not have been asked and, in conjunction with the prosecutor’s closing argument referencing those questions, suggested to the jury that they could not consider the Commonwealth’s failure to produce such evidence or to […]