COMMONWEALTH v. RIVERA (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On September 18, 2011, Armando Maisonet shot and killed Juan Melendez as he sat in a vehicle on Rodney Street in Worcester. Maisonet, Dominic Sanchez, Luiz Diaz, Jon Carlo Rodriguez, and the defendant were indicted for Melendez's murder as joint venturers.² The defendant's case was severed from those of his codefendants ³ and, following a jury trial in the Superior Court, he was convicted of murder in the second degree, carrying a firearm without a license, and possessing ammunition without an FID card.⁴ The defendant filed a timely notice of appeal from the judgments. Thereafter, the defendant moved pursuant to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995), for entry of not guilty findings on the three convictions, reduction of the murder verdict, or a new trial. The trial judge denied the rule 25 (b) (2) motion in a written endorsement. The defendant's appeal from that order was consolidated with his direct appeal. We affirm.⁵

Background. We summarize the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), reserving discussion of some facts for the issues raised. The defendant spent the late night and early morning hours of September 17-18, 2011, with the codefendants, and Heather Hackett and Destinie Suits. Around 2:30 a.m. on September 18, 2011, the group was together on Granite Street in Worcester when Maisonet exited a residence and said, “Let's go.” Suits, who was standing near the defendant, overheard Sanchez tell Diaz that Maisonet had a gun. The five codefendants got into a white Toyota Camry that belonged to Maisonet's girlfriend and drove to Rodney Street, where Maisonet's cousin Juan Gonzalez lived in an apartment located at number 65. The victim resided across the street, in an apartment at 70 Rodney Street.

Maisonet and Diaz went upstairs to Gonzalez's apartment. Maisonet was angry and told Gonzalez that the victim had disrespected his “girl.” Maisonet said, “These niggas think I'm playing,” then he and Diaz left. Gonzalez could hear Maisonet and others talking on the porch. Moments later, he heard two gunshots. He looked out the window and saw “some guys running down the street.” Gonzalez went outside and observed people standing around a car. The victim, who was the driver and sole occupant of the car, had been shot in the head and neck. He died as a result.

Surveillance videos played for the jury depicted the white Camry arriving at Rodney Street and the five codefendants getting out and walking to Gonzalez's residence. The codefendants then crossed the street to the area of the victim's residence, number 70. Maisonet crossed the street first, followed by Rodriguez, the defendant, Sanchez, and Diaz. The video showed that, moments later, the codefendants fled together on foot from the area of 70 Rodney Street. The defendant stipulated that he appeared in the surveillance video as the group approached 70 Rodney Street and again as the group fled.

Discussion. The defendant's primary claim on appeal is that the evidence was insufficient to prove that he knowingly participated in the murder with the intent required for that offense. See Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). He also claims that the judge erred in admitting evidence of the defendant's activities in the hours before the murder and the codefendants' gang affiliation. Finally, the defendant argues that the prosecutor's opening statement and closing argument were improper, such that he was denied his right to a fair trial.

1. Sufficiency. We review the defendant's sufficiency claim to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Latimore, 378 Mass. at 677, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). The defendant contends that there was no evidence that he participated in the shooting or that he shared Maisonet's intent. He also argues that Suits's testimony regarding Sanchez's statement to Diaz was erroneously admitted, and that without the statement there was insufficient evidence that he knew Maisonet was armed. We address each point in turn.

“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 palliation.” Commonwealth v. Casale, 381 Mass. 167, 171-172 (1980). Although it is undisputed that the defendant did not shoot the victim, the Commonwealth presented sufficient evidence to demonstrate beyond a reasonable doubt that the defendant participated in the shooting based on the following evidence. The defendant left Granite Street in the white Camry with the other codefendants after Maisonet said, “Let's go.” After Maisonet told Gonzalez that “[t]hese niggas think I'm playing,” Gonzalez heard Maisonet and the other codefendants talking on the porch. Maisonet, followed by the defendant, then crossed Rodney Street where Maisonet shot the victim. Immediately thereafter, the defendant fled with the other codefendants. See Commonwealth v. Blake, 428 Mass. 57, 64 (1998) (joint venture may be proved by circumstantial evidence, “including that the defendant was among those fleeing the scene”). Considering this evidence in the light most favorable to the Commonwealth, an inference that the defendant acted in concert with the coventurers and participated in the shooting was “reasonable and possible” (citation omitted). Commonwealth v. Braune, 481 Mass. 304, 306-307 (2019).

The evidence of Maisonet's statements and the defendant's acts of engaging in conversation with Maisonet before following him to and from the shooting also support an inference that the coventurers were acting in concert and that the defendant shared Maisonet's intent. See Braune, 481 Mass. at 312 (intent may be proved by circumstantial evidence); Commonwealth v. Woods, 466 Mass. 707, 713 (2014), quoting Commonwealth v. Cohen, 412 Mass. 375, 381 (1992) (“The intent required for the offense may be inferred from ‘the defendant's knowledge of the circumstances and subsequent participation in the offense’ ”). “The Commonwealth was not required to prove that [the defendant] waged a personal vendetta against the victim” in order to sustain its burden of proof. Blake, 428 Mass. at 63.

Next, the defendant claims there was insufficient evidence to support an inference that he knew Maisonet was armed, because Suits's testimony regarding Sanchez's statement that Maisonet had a gun was inadmissible hearsay. He further claims that admission of the testimony violated his right to confront and cross-examine witnesses against him. We disagree.

Statements by coconspirators are not hearsay when they are made during the cooperative effort and in furtherance of its goal, if the existence of the conspiracy or joint venture is shown by evidence independent of the statement. See Commonwealth v. Santos, 463 Mass. 273, 290-291 (2012); Commonwealth v. McLaughlin, 431 Mass. 241, 246 (2000). See also Mass. G. Evid. § 801 (d) (2) (E) (2018). Here, for the reasons previously discussed, the record supports the judge's conclusions that there was sufficient independent evidence of a joint venture and that the statement was made prior to the shooting and in furtherance of the joint venture. Moreover, the testimony did not violate the defendant's right to confront witnesses against him because Sanchez's statement did not expressly implicate the defendant in the crime charged and became incriminating “only when linked with evidence introduced later at trial” (citation omitted). Blake, 428 Mass. at 60. Thus, the evidence of Sanchez's statement was properly admitted, and jurors could reasonably infer from that evidence that the defendant, who was close by at the time, heard the statement and was aware that Maisonet had a gun.

Even if Suits's testimony regarding the gun had been erroneously admitted, we are confident that it “did not influence the jury, or had but very slight effect” (citation omitted). Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). There being no question that Maisonet was armed, the Commonwealth's evidence sufficed to prove that the defendant “was accessory to another identified defendant in possessing a firearm,” which is all that is required. Commonwealth v. Humphries, 465 Mass. 762, 768 (2013), quoting Commonwealth v. Brown, 50 Mass. App. Ct. 253, 256 (2000). Moreover, the judge mistakenly instructed the jury that they were required to find beyond a reasonable doubt that the defendant knew Maisonet was armed in order to convict the defendant of murder. See Commonwealth v. Britt, 465 Mass. 87, 100 (2013). This expanded the Commonwealth's burden of proof, and “[w]e cannot see how requiring the Commonwealth to prove an additional element in its case would harm the defendant.” Commonwealth v. Mullane, 445 Mass. 702, 718 n.11 (2006). Finally, “[t]he jury necessarily found that the defendant knew that someone participating in the joint venture had a weapon” because they convicted him of unlawfully carrying a firearm and possessing ammunition. Britt, supra at 98.

2. Gang evidence. The defendant claims that the judge abused her discretion when she allowed the Commonwealth to introduce evidence of two altercations in which the defendant was involved in the hours before the murder, and that all five codefendants were members of a street gang known as the “Kilby Street Posse” while the victim was a member of a street gang known as the “Vice Lords.” As evidence of the codefendants' gang affiliation was relevant to the defendant's motive and state of mind on the night of the shooting, see Commonwealth v. John, 442 Mass. 329, 337 (2004); Commonwealth v. Maldonado, 429 Mass. 502, 504 (1999), we see neither an abuse of discretion nor any other error of law in the judge's decision to admit the evidence in question. John, supra at 338. Moreover, the judge “satisfactorily fulfilled [her] responsibility to minimize the prejudicial effect that gang evidence might have had on the jury” through voir dire questions and repeated limiting instructions. Id.

Over the defendant's objection, the Commonwealth was permitted to introduce evidence that the defendant was involved in two altercations in different bars in the hours before the murder. The Commonwealth theorized that this evidence was probative of the codefendants' gang affiliation and the joint venture. This theory was supported by evidence that the first of the altercations in which the defendant was involved was prompted by a verbal slur directed at the Kilby Street Posse. The judge did not abuse her discretion in admitting evidence of that altercation. The evidentiary basis for admission of the second altercation is less clear as there was no evidence that that skirmish was related in any way to the Kilby Street Posse. However, we discern no undue prejudice from the judge's decision to admit this evidence where she gave repeated and forceful instructions advising the jury of the limited way in which such evidence could be considered.

3. Opening statement and closing argument. The defendant argues that he was deprived of a fair trial when the prosecutor impermissibly referred to facts not in evidence in his opening statement. We disagree. The prosecutor's statement, that Maisonet exited the residence on Granite Street saying, “ ‘[i]t's going down ․ [l]et's go,’ words to that effect,” did not misrepresent any evidence because none had yet been taken. The prosecutor merely outlined what he thought the jury were “going to hear.”

Nor did the prosecutor's closing argument deprive the defendant of a fair trial. While the prosecutor may have crossed the boundary of permissible argument when he stated that “[t]he [codefendants'] gang stands together,” any prejudice to the defendant was again abated by the judge's forceful curative instruction.⁶ Considering “the prosecutor's remarks in the context of his entire closing argument,[⁷ ] the judge's instructions to the jury, and the evidence produced at trial,” Commonwealth v. Lyons, 426 Mass. 466, 471 (1998), we see no prejudicial error.

Conclusion. The judgments, and the order denying the motion to set aside the verdicts, to reduce the murder verdict, or for a new trial, are affirmed.

So ordered.

Affirmed.

FOOTNOTES

2.   The defendant was indicted for murder, in violation of G. L. c. 265, § 1; attempt to commit a crime (home invasion), in violation of G. L. c. 274, § 6; unlawfully carrying a loaded firearm, in violation of G. L. c. 269, § 10 (a), (n); possessing ammunition without a firearm identification (FID) card, in violation of G. L. c. 269, § 10 (h); possessing a firearm and ammunition while having previously been convicted of three violent crimes or serious drug offenses, in violation of G. L. c. 269, § 10G (c); and conspiracy to commit home invasion, in violation of G. L. c. 274, § 7.

3.   The other codefendants ultimately pleaded guilty.

4.   Following a subsequent jury-waived trial, the trial judge found the defendant guilty of being a level one armed career criminal. See G. L. c. 269, § 10G (a). The indictments charging the defendant with attempt to commit a crime, carrying a loaded firearm without a license, and conspiracy were dismissed at the Commonwealth's request.

5.   We decline to address the defendant's claim of error with respect to the denial of his motion for required finding of not guilty pursuant to rule 25 (b) (2) because the defendant makes no argument regarding that motion in his brief. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1629 (2019).

6.   The judge instructed the jury that that portion of the Commonwealth's closing argument was “inappropriate” and “should not be considered.”

7.   The prosecutor also argued that the defendant “is not guilty because he's a gang member, he's guilty because of his decisions, his actions, and the circumstances of that morning.”