If police criminalists had found three gunshot residue particles on Keith Williams after Dawnn Jaffier crumpled to the street, a fatal gunshot wound to her head during the 2014 J’Ouvert parade, that would have been enough for prosecutors to use during Williams’s murder trial. But the expert found just two, prosecutors failed to explain to the jury why that was still enough proof of Williams’s guilt and so Williams deserves a new trial, the Supreme Judicial Court ruled Tuesday.
[T]he Commonwealth here was obliged to establish that the detection of one gunshot residue particle in each of two negative test results was reliable evidence to support the inference that the defendant, rather than his companions, fired the weapon. … Because the Commonwealth failed to provide that foundation, the expert testimony regarding the underlying gunshot residue particles should not have been admitted for that purpose.
In fact, the court noted, a prosecution witness, a State Police lab technician, said on the stand that finding just two gunshot residue particles on Williams – one on his hand and one on his T-shirt – was not enough to prove that he had fired a gun, and that he considered the test results to be “negative,” because of how easily the particles can spread, for example, onto the seats in the back of police cruisers or onto handcuffs used on more than one person.
We agree with the defendant that, on this record, the Commonwealth did not meet its threshold burden, as the proponent of the evidence, to establish that the detection of one gunshot residue particle in each of two negative test results for the defendant was reliable evidence that the defendant fired the murder weapon — the contested issue with respect to which the Commonwealth offered the evidence — or of any other material issue at trial.
But the way prosecutors emphasized that Williams had any particles on him when the two men he was with had none, unfairly prejudiced the jury and requires a new trial – for both Jaffier’s death and the non-fatal shooting of a second woman on Blue Hill Avenue early on Aug. 23, 2014.
At the same time, the court rejected a request by Williams’s attorney to simply free him on the grounds there was insufficient evidence for a conviction, because while the question of the science of gunfire residue was enough to warrant a new trial, other evidence would have been enough for a jury to convict him on a charge of premeditated first-degree murder for killing Jaffier while he was allegedly exchanging gunfire with some guy with whom he’d argued inside a convenience store in the moments before Jaffier was shot.
From eyewitness accounts of the shooting, the jury could find that, after [Winston] Colas [the man prosecutors say Williams had been mad at] displayed and pointed a firearm toward the defendant and his companions, the defendant made the decision to fire his own weapon repeatedly at Colas. The defendant then fired at least five rounds. Although the interval was brief, deliberate premeditation may be formed in seconds, and the sequence of conduct here permitted the jury to infer that the defendant formed a decision to kill Colas before carrying it out by repeatedly firing at him.
Colas, who had initially also been charged with first-degree murder for Jaffier’s death – since he participated in the gun battle that led to it – also had his conviction overturned. In 2022, he pleaded guilty to manslaughter, rather than face a new trial on a charge of second-degree murder.
The Suffolk County District Attorney’s office is still reviewing the SJC ruling before deciding whether to seek to re-try him, a spokesman for the office said.
At issue for the state’s highest court was the minimal relatively minimal evidence against Williams at his 2017 trial – in particular the two gunshot residue particles found on him.
Prosecutors argued that because two particles were found on Williams but none on the other two men he was with, that was proof he was the shooter.
The problem, the court said, is that at the time, accepted practice was to only accept gunshot-residue tests as “positive” if they show evidence of at least three particles – because the particles spread so easily they could eventually land on an innocent person. That doesn’t mean prosecutors couldn’t use the evidence, but they needed to add in expert evidence on why the jury should accept that evidence as proof, only they didn’t the court said.
The disputed gunshot residue testimony figured prominently in the Commonwealth’s case. In the Commonwealth’s opening statement, the prosecutor explained that gunshot residue particles were found on the defendant, without mentioning that the particles did not amount to a positive test result. In closing argument, the prosecutor acknowledged that the test results were negative, but told the jury that the threshold for a positive result was “not [their] protocol,” and that they could “interpret [the evidence] however [they] want,” because “[t]hat’s not a jury standard of practice, that’s a Massachusetts State Police standard of practice.” The prosecutor then highlighted that gunshot residue particles were found only in the samples taken from the defendant, not Reed or Joyce, and urged the jury to rely on this evidence to conclude that the defendant was the shooter. The prosecutor’s closing also undercut the defendant’s attempt to minimize this evidence — through an argument, based on cross-examination of the Commonwealth’s witnesses, that the particles could be the result of contamination — by pointing out that Reed and Joyce too had been handcuffed, transported in police vehicles, and detained for hours prior to the testing, and yet no particles were found in their negative test results. This thus is not a case where, although evidence was admitted in error, the Commonwealth refrained in its closing argument from arguing that the jury should rely on it.
The court explained how police analysts test for residue with a specialized type of adhesive tape and a scanning electron microscope:
To test for the presence of gunshot residue particles, a stub — essentially, an adhesive tape — is applied to a surface such as a hand or piece of clothing, and the stub then is examined for gunshot residue particles using a scanning electron microscope. Under scientific standards established by the Federal Bureau of Investigation and the Massachusetts State Police, a positive gunshot residue test requires the detection of three or more gunshot residue particles.
More specifically, a criminalist will look for a particle of “three components not generally found together as one particle in nature: barium nitrate, lead styphnate, and antimony sulfide.”
The court added:
A person may have gunshot residue on his or her hands if the person “recently fired a gun, handled a firearm, [was] in the presence of a gunshot, [was] handcuffed by someone who has recently handled a firearm, . . . [or] touched an area where firearms are routinely found.”
In Williams’s case, one BPD criminalist:
[S]tubbed the hands of the defendant at 11:53 A.M. on the morning of the shooting, which had occurred at approximately 8:16 A.M., and also stubbed the hands of Reed and Joyce [two men with Williams]. A police officer collected the defendant’s T-shirt the following day for testing, and a different criminalist stubbed it for gunshot residue thirteen months later. [A State Police technician] subsequently tested the stubs for the presence of gunshot residue. Each stub tested negative.
