Commonwealth v. Herndon (Lawyers Weekly No. 10-136-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-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 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 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 […]