Search and Seizure, Evidence, Scientific Test, & Jury Instructions

(FEB. 2019)
[Search and Seizure, Evidence, Scientific Test, & Jury Instruction]


On February 28, 2013, Courtney Jackson was shot twice in the back as he boarded a bus at the Massachusetts Bay Transportation Authority (MBTA) station on Dudley Street in the Roxbury area of Boston. A Superior Court jury convicted the defendant, Jamel Bannister, of 1) murder in the second degree and 2) unlawfully carrying a firearm. Evidence was presented affirming that the defendant aided and abetted Brian Cooper in the shooting.

The defendant made the following claims in support of a reversal of his conviction:

  • The police lacked reasonable suspicion to stop the him after the shooting and evidence seized thereafter should have been suppressed
  • There was insufficient evidence of his intent to aid and abet Cooper
  • He was prejudiced by the erroneous admission of prior bad act evidence
  • The judge gave erroneous jury instructions that created a substantial risk of miscarriage of justice
  • He was deprived of the effective assistance of counsel when trial counsel failed to request a Daubert-Lanigan hearing on thermal imaging evidence

The defendant also faulted his trial counsel on three issues:

  • Counsel’s failure to object to the prosecutor’s closing argument
  • Counsel’s failure to move to suppress his statement to police
  • Counsel’s failure to challenge two jurors for cause

The Massachusetts Appeals Court found no error in the denial of the motion to suppress, the trial, or the trial counsel’s performance, thus affirming the conviction of the defendant.


At all relevant times, the defendant and Cooper were members of affiliated street gangs while the victim was a member of a rival gang. The defendant and the victim had a history of confrontation, which included fistfights.

Video surveillance from MBTA cameras showed the defendant and Cooper walking side-by-side onto the platform at around 9:48 PM on February 28, 2013, the time and date of the incident in question. The two men stopped and engaged the victim there in conversation. Cooper fired the shots into the victim’s back as the defendant stood behind him. They then fled the station toward Washington Street. The victim collapsed in the bus and later died from his injuries.

Turning left onto Washington Street, Cooper and the defendant were confronted by Boston police officers Dominic Columbo and Wilfredo Coriano, who were in the area. The officers responded to the gunshots by drawing their firearms and running toward the bus station. As Cooper and the defendant ran toward the officers, Coriano pointed his firearm at Cooper and ordered him to the ground. Cooper complied, and Coriano recovered a revolver that Cooper was holding behind his back. The defendant did not comply and fled. Columbo gave chase and shortly thereafter two other officers apprehended the defendant, recovering a small bag of cocaine and a semiautomatic firearm in the process. The defendant was transported to the police station where he gave a recorded statement.

Issues: The Stop

The defendant moved to suppress the drugs and firearm that were recovered along his path of flight, asserting that Coriano and Columbo lacked reasonable suspicion to stop him. The trial judge found that the defendant and Cooper were the only people running from the scene of the shooting, that the defendant and Cooper were running together, and that Cooper was holding a firearm. He concluded that the officers had reasonable suspicion to stop and detain the defendant in connection with their investigation into the gunshots.

The Appeals Court found no error in the motion judge’s finding that the defendant and Cooper were the only people running from the scene. The Court agreed that at the time, specific, articulable facts established an individualized suspicion that the defendant was involved in the shooting. Within seconds of hearing the gunshots, Coriano and Columbo noted the defendant and Cooper as the only individuals fleeing the scene in their direction. Coriano could also see that Cooper was armed and that the defendant was running with him. As the Court has ruled, “Specifically, ‘the test for determining reasonable suspicion should include consideration of the possibility of the possession of a gun, and the government’s need for prompt investigation.’” The Court concluded that the defendant’s proximity to the crime scene and his flight from the scene with a person who was visibly armed established reasonable suspicion to make the stop.

Issues: Proof of Intent

The defendant claimed that the Commonwealth presented insufficient evidence that he knowingly participated in the murder with the level of intent required for that offense. He specifically claimed that there was no evidence that he intended to shoot the victim or that he intended for Cooper to do so.

The Court disagreed. Murder in the second degree is an unlawful killing with malice aforethought. Malice includes any intent to inflict injury on another without legal excuse or mitigation. Surveillance video showing the defendant removing his hand from his pocket, raising his arm in the direction of the victim, stepping forward, and lowering his arm as Cooper fired two shots, in addition to an eyewitness report that after the shots were fired he saw the defendant put a gun into his pocket, sufficiently established that the defendant shared the intent to shoot the victim.

The Court determined that this conclusion was further supported by Cooper and the defendant arriving together at the bus station just seconds before the victim, both carrying loaded firearms, both approaching the victim directly, and both fleeing in the same direction.

Issues: Prior Bad Acts

Before trial, the Commonwealth filed motions in limine seeking permission to introduce evidence that the defendant and the victim belonged to rival gangs and that there was a history of violence between them. The Commonwealth argued the evidence was relevant. In arguing for the admission of the evidence, the Commonwealth had Boston police officer Jorge Dias, with twenty years of experience working with gangs, testify that the defendant and Cooper were members of affiliated gangs and that he had witnessed the defendant and the victim engaged in fist fights with one another in 2008 and 2009. On cross-examination, the defense counsel established that these fights had occurred while the parties were incarcerated.

The Appeals Court found neither an abuse of discretion nor any other error of law in the judge’s decision to admit the evidence, for three major reasons. First, Dias’s testimony was based on his personal knowledge. Second, evidence that the defendant and Cooper were in affiliated gangs while the victim was in a rival gang was relevant to the defendant’s motive and state of mind on the night of the shooting. Finally, evidence that the defendant and the victim had been involved in physical altercations four and five years earlier was admissible to demonstrate the continuing animosity on the defendant’s part toward the victim.

Issues: Jury Instructions

Although not objecting to the jury instructions used at trial, the defendant raised two claims of error regarding jury instructions.

The first was that the judge gave an erroneous instruction in connection with his discussion of the elements of murder. While the Commonwealth conceded that the way this instruction was presented was erroneous, the Court ruled that the error did not create a substantial risk of miscarriage of justice for two reasons.

First was that the instruction expanded the Commonwealth’s burden of proof and the Court could not see how requiring the Commonwealth to prove an additional element in its case would harm the defendant. Second, the jury found that the defendant knew that someone participating in the joint venture had a weapon because they convicted him of carrying a loaded firearm.

The second claim of jury instruction error raised by the defense was that the judge erred when he informed the jury that they were not to worry about the case against Cooper because “another judge is dealing with that case.” The defendant cited no authority in support of his claim that this was erroneous and the Court itself found none. As the Court noted, “[a]n error creates a substantial risk of miscarriage of justice unless we (sic) are persuaded that it did not ‘materially influence’ the guilty verdict”.

Issues: Ineffective Assistance

The defendant raised four claims of ineffective assistance of counsel:

  • Trial counsel should have requested a Daubert-Lanigan hearing on the reliability of thermal imaging evidence
  • Trial counsel should have objected to the prosecutor’s closing argument
  • Trial counsel should have moved to suppress his statement to police
  • Trial counsel should have moved to strike two jurors

The Court noted that the defendant did not move for a new trial.

It also noted to two major legal issues needed to address the above claims:

  • Whether there had been serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer
  • Whether such behavior likely deprived the defendant of an otherwise available, substantial ground of defense

On the issue of thermal imaging, the defense’s objections centered around Boston police officer Yong Lee’s testimony on his recorded images of the semiautomatic firearm seized using a thermal imager, a device that detects heat from objects. The Court noted that the defendant did not object to this testimony at trial, but argued that his trial counsel should have requested a Daubert-Lanigan hearing because such evidence was of “highly dubious scientific merit”.

The Court ruled that they could not say counsel’s failure to request a Daubert-Lanigan hearing constituted behavior that fell measurably below that which might be expected from an ordinarily fallible lawyer. It added that the defendant also did not satisfy his burden of showing that Daubert-Lanigan hearing may have accomplished something material for the defense.

On the issue of the prosecutor’s closing argument, the Court ruled that there is no merit to the defendant’s claim that his trial counsel was ineffective, because he failed to object to portions of the prosecutor’s closing argument. Contrary to the defendant’s assertion, the prosecutor did not argue that the defendant denied knowing the victim in his statement to police.

On the issue of the motion to suppress the statement, the Court noted that the record showed that the trial counsel’s decision in this regard was strategic. The Court added that in any event, the transcript of the defendant’s statement showed that he was lucid, coherent, and able to understand his circumstances and surroundings.

On the issue of failing to strike jurors, the Court noted that a trial judge has a large degree of discretion in the jury selection process. It added that it was clear from a review of the transcript that the judge was sensitive to the potential of juror bias against gang members. Although the Court agreed that Juror Number Two being asked a compound question should have been avoided, in these circumstances the juror’s one-word response to the question asked was intended to convey that evidence of gang affiliation would not affect his ability to be fair and impartial. On issue with the judge’s discretion over finding Juror Number Sixteen “indifferent”, the Court ruled that it is well settled that a potential juror’s use of seemingly equivocal language is not determinative of the juror’s ability to be impartial.


Judgments AFFIRMED.



Source: Commonwealth vs. Jamel Bannister, 17-P-361


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