Commonwealth v. Barbosa , 477 Mass. 658 ( 2017 )

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SJC-11720
COMMONWEALTH vs. JASON BARBOSA.
Suffolk. February 10, 2017. - August 25, 2017.
Present: Gants, C.J., Hines, Lowy, & Budd, JJ.1
Homicide. Joint Enterprise. Evidence, Joint venturer, Expert
opinion, Hearsay, Spontaneous utterance, Opinion.
Practice, Criminal, Capital case, Opening statement,
Argument by prosecutor, Assistance of counsel, Indictment.
Indictments found and returned in the Superior Court
Department on May 23, 2012.
A motion to dismiss was heard by Charles J. Hely, J., and
the case was tried before Christine M. McEvoy, J.
Patricia A. DeJuneas for the defendant.
Teresa K. Anderson, Assistant District Attorney (Patrick M.
Haggan, Assistant District Attorney, also present) for the
Commonwealth.
HINES, J. On February 23, 2012, Anthony Depina was shot
and killed outside a bar in the Roxbury section of Boston. The
defendant, Jason Barbosa, was indicted on the charges of murder
1
Justice Hines participated in the deliberation on this
case and authored this opinion prior to her retirement.
2
in the first degree and unlawful possession of a firearm as an
armed career criminal2. The Commonwealth proceeded against him
on the theory of deliberate premeditation. Specifically, the
Commonwealth's theory at trial was that the shooting was
committed as part of a joint venture wherein the defendant was a
knowing participant, either as the shooter or as an accomplice.
The jury convicted the defendant of murder in the first degree,
and did not specify whether they found the defendant guilty as a
principal or as a joint venturer.
On appeal, the defendant argues that (1) the Commonwealth
presented insufficient evidence to support his conviction as
both the shooter and as a knowing participant with shared intent
to kill; (2) the judge abused her discretion in admitting
prejudicial gang evidence; (3) the prosecutor's opening
statement and closing argument were improper; (4) the judge
allowed inadmissible statements, which unfairly bolstered the
Commonwealth's theory of gang retaliation and allowed improper
interpretive testimony; (5) trial counsel provided ineffective
assistance of counsel; and (6) the motion judge erroneously
denied the defendant's motion to dismiss the indictments. We
affirm the conviction and decline to grant relief pursuant to
G. L. c. 278, § 33E.
2
Prior to trial, the Commonwealth entered a nolle prosequi
as to the firearm charge.
3
Background. We recite the relevant facts the jury could
have found. We reserve certain details of the evidence
presented to the grand jury for later discussion of the
defendant's motion to dismiss. The defendant and the victim had
ties to rival Cape Verdean gangs. The defendant was a member of
the Woodward Avenue gang, and the victim was associated with the
Wendover Street gang. Although the groups were aligned at one
point, around 2005, the relationship between them deteriorated
and they became involved in an ongoing feud active through
February, 2012, when the victim was murdered.
On December 24, 2011, the defendant and two other members
of the Woodward Avenue gang, Kenneth Lopes and Manuel Montrond,
were involved in an altercation with several members of the
Wendover Street gang, including the gang's leader, at a gasoline
station in Boston. The defendant and Lopes were injured during
the altercation, but neither cooperated with the police
investigation.
Two months later, on February 23, 2012, around 9:30 P.M.,
the defendant, who was on probation and wearing a global
positioning system (GPS) tracking bracelet, and Montrond arrived
at a bar near the intersection of Burrell Street and Norfolk
Avenue in Roxbury in a black Cadillac CTS rented by Montrond.
Minutes later, Lopes alighted from a different vehicle.
Montrond signaled Lopes by flashing his headlights twice. The
4
three men entered the bar.3 The actions of the defendant,
Montrond, and Lopes were captured by the bar's eleven video
surveillance cameras. The cameras inside the bar were
continuously recording, while the cameras outside the bar were
motion-activated. Analysis of the time stamp on the video
surveillance and the defendant's GPS data4 revealed that the time
stamp on the video recordings was approximately four minutes and
thirty seconds fast. Other actions that were relevant were
tracked by the coordinates of the GPS and involved streets that
were near the bar.
Once inside the bar, the men socialized with the
defendant's ex-girl friend, and her cousin. A few minutes after
the men arrived, Montrond left the bar and went outside to sit
in the Cadillac. The victim walked by and waved at Montrond on
his way into the bar.
Although the bar is located in territory claimed by
Woodward Avenue gang members, members of the Wendover Street
gang, including the victim, also patronized the bar. The
defendant and the victim grew up together and were friends when
3
Montrond and Lopes were mentioned by name at trial as
possible joint venturers. However, it appears that neither man
was ever charged in connection with the murder.
4
A representative from the Department of Probation, which
administered the defendant's GPS monitoring, testified that the
time stamp on the GPS data points use the atomic clock, which is
more accurate than the time stamp from the bar's video
surveillance footage.
5
they were younger, but their relationship changed when the
defendant, who had been affiliated with the Wendover Street
gang, began to associate with members of the Woodward Avenue
gang. Despite the change in their relationship, when the victim
arrived at the bar just before 10 P.M. with Maria Teixeira, the
victim greeted the defendant with a handshake and then walked to
the end of the bar.
The defendant and the victim each left the bar at different
times and returned without incident, including when the
defendant was in Montrond's vehicle while the victim walked by.
At one point, however, the defendant left the bar and drove
around, returning to the area of the bar at around 10:20 P.M.,
and then drove to Woodward Avenue. The defendant returned to
Burrell Street and walked toward the bar. The victim and
Teixeira left the bar just before 10:30 P.M. and stopped by the
victim's home before leaving again. Meanwhile, the defendant
appeared to be searching the area; he walked down Burrell
Street, where the victim's vehicle had been parked, and then
turned around, returning to his vehicle and driving to Albion
Street, where Teixeira lived. At around 10:45 P.M., the
defendant returned to the area of Burrell Street and Norfolk
Avenue, followed by Montrond's rented black Cadillac. The
defendant alighted from a small, dark-colored sport utility
vehicle (SUV) and went inside the bar. A black Cadillac
6
followed the vehicle the defendant had been in. Once inside the
bar, the defendant looked around the interior of the
establishment, searching the bar area, pool room, lounge, and
bathroom before leaving less than a minute after arriving.
At around 11 P.M., the victim and Teixeira returned to the
area of Burrell Street and Norfolk Avenue near the bar. The
victim previously had made plans with Joseph Rosa, a member of
the Wendover Street gang, and two women to meet at the bar for
drinks. The victim and Teixeira arrived in the victim's vehicle
and parked on Burrell Street, with the driver's side of the
vehicle next to the sidewalk, near a dark alley. Although the
plan was to go have drinks at the bar, the people the victim was
meeting decided not to go inside. Instead, the victim and
Teixeira walked over to Rosa's vehicle and spoke with the
occupants through the passenger-side window while standing on
the sidewalk. While the group was talking, the defendant pulled
up driving a small black SUV, and stopped alongside Rosa's
vehicle. The defendant said something to the effect of, "You
don't belong here." The victim said something back to the
defendant, and the defendant quickly drove away, followed by the
black Cadillac.
As a result of the interaction with the defendant, Rosa and
one of the women encouraged the victim to leave, but he refused,
insisting that he was a "tough kid" and that no one could tell
7
him where he can go. Rosa and the two women left. The victim
and Teixeira went back to the bar, intending to have a drink.
Teixeira went inside the bar to use the bathroom; the victim
stayed outside and smoked a cigarette. The defendant drove past
the bar slowly in the small black SUV. As the defendant drove
by, the victim stood by the front door of the bar and pointed at
the defendant.
Seconds later, the victim went inside the bar; he first
went to the bathroom and then waited for Teixeira at the bar,
declining a drink. When Teixeira joined him at the bar, he told
her that he had changed his mind and wanted to leave. The
victim did not tell Teixeira why he had changed his mind and
appeared normal, but a little "mad." As the victim and Teixeira
left the bar and walked to his vehicle, they had a conversation
about the earlier interaction with the defendant at Rosa's
vehicle. As Teixeira and the victim approached his vehicle,
headlights from a vehicle up the street flashed four times. The
victim looked toward the street. Teixeira heard him use the
defendant's nickname and say, "Are you for real, Little J?"
Teixeira looked down the street and saw an individual walking in
the middle of the street, but she could not see the individual's
face.5 Immediately thereafter, another individual fired multiple
5
On cross-examination, Teixeira noted that the individual
appeared to be male, with short braids. The defendant had
8
gunshots at the victim from the nearby alley.6 The victim was
shot in the head and torso, and he fell to the ground, face up,
in between the driver's side door of his vehicle and the curb.
At or about the time of the shooting, which was
approximately 11:10:43 P.M., the defendant's GPS data points7
established that at 11:10:05 P.M., he was located on Burrell
Street, near Batchelder Street, traveling zero miles per hour.
At 11:10:36 P.M., the defendant was on Burrell Street headed
toward Norfolk Avenue, near the bar, traveling two miles per
hour. There was a missing data point directly after the murder,
which should have recorded at 11:11:06 P.M. Seconds after the
shooting, the dark-colored SUV drove down Burrell Street, turned
right on Norfolk Avenue, and then took another right onto
Marshfield Street.8 At that time, 11:11:35 P.M., the defendant's
GPS coordinates show him traveling on Marshfield Street at
short, braided hair. She also acknowledged that she did not see
a gun in the individual's hands.
6
Teixeira testified that she did not see another individual
besides the person in the middle of the street and that the
shots rang out within a second of the victim's statement, "Are
you for real, Little J."
7
A GPS data point with the defendant's location was to be
recorded every thirty seconds and included information about his
location and speed and the strength of the GPS signal; the
location information is accurate to within fifteen feet.
8
A neighbor who lived on Norfolk Street near the bar
testified that he heard gunshots at around 11 P.M. that night
and then saw a black "SUV-type car" driving "way too fast" on
Norfolk Avenue.
9
thirty-eight miles per hour. Minutes after the shooting, the
defendant returned to a house on Woodward Avenue.9
After Teixeira heard the gunshots, she ran across the
street and back inside the bar. Although Teixeira saw the
victim go down, she did not realize he had been shot when she
fled the gunfire. As she re-entered the bar, Teixeira kept
saying "shots fired, shots fired." Eventually, she went back
outside to discover the victim's body, lying face-up between his
vehicle and the curb. The bartender telephoned 911.
When police officers arrived at around 11:15 P.M., Teixeira
was hysterical. Officers had to physically restrain her as well
as hold her upright because she was distraught, screaming, and
crying. She was transported to Boston police headquarters. On
the way, she stated, "They're going to kill me for this." In
the interview room at the police station, she was still so
emotionally upset that she became physically ill. Shortly
thereafter, she was asked some questions. She stated, "These
people want to kill people because of the fucking street."
After she identified the victim, Teixeira announced, "I'm going
to die for this. I'm going to tell you anyway." In response to
the detective's question "Who shot?," Teixeira replied, "Little
J, Jason."
9
The house was a "clubhouse" and hang out spot for Woodward
Avenue gang members.
10
The victim suffered gunshots wounds to the head and torso,
both of which were independently fatal and caused his death
within seconds. Although ballistics evidence was recovered from
the victim's body and the crime scene, analysis was inconclusive
as to whether the bullet fragments were fired from the same
weapon. The shell casings were identified as nine millimeter
Lugar caliber and were fired from the same semiautomatic pistol.
No firearm was recovered in connection with the victim's
shooting.
As part of the investigation, detectives sought to identify
and locate the Cadillac that Montrond had rented and the small
black SUV the defendant was driving on the night of the
shooting. The small black SUV was never located. Although the
rental contract on the Cadillac was set to end on February 29,
2012, Montrond returned the vehicle the day after the shooting,
canceled the contract, and established a new rental contract for
a 2012 Buick Lacrosse.10
Two days after the shooting, the defendant and Montrond
were stopped by police, who seized the defendant's cellular
telephone. Pursuant to a search warrant, detectives searched
10
A representative of the rental company testified that
this situation was unusual. Generally where a customer is
unhappy with a rental car, the company merely switches out that
vehicle without closing the rental contract and notes the
customer-service issue, rather than establish a new rental
contract. The representative also confirmed that there were no
mechanical issues or damage to the Cadillac.
11
the defendant's cellular telephone and telephone records. The
telephone records established that approximately two minutes
before the shooting, the defendant telephoned one of the leaders
of the Woodward Avenue gang, and that approximately one minute
after the shooting, at 11:12 P.M., the defendant made a
telephone call to another leader of the Woodward Avenue gang.
Between 11:13 P.M. and 11:20 P.M., the defendant received a
telephone call from Lopes, made an outgoing call to Montrond,
and received another incoming call from Lopes.
The defendant moved for a required finding of not guilty at
the close of the Commonwealth's case, which was denied. The
judge also denied the defendant's renewed motion for a required
finding of not guilty at the close of all evidence.
Discussion. 1. Sufficiency of the evidence. The
defendant challenges the sufficiency of the evidence for his
conviction. Specifically, he argues that because the jury
returned a general verdict, and the Commonwealth proceeded on
mutually exclusive theories of joint venture liability, his
conviction must be reversed where the Commonwealth failed to
present sufficient evidence to prove that he was both the
shooter and a knowing participant with the shared intent to
kill, beyond a reasonable doubt. In support of his argument,
the defendant's relies on Commonwealth v. Akara, 465 Mass. 245,
254-256 (2013), for the proposition that where the Commonwealth
12
proceeds on mutually exclusive theories of joint venture, it
must prove the sufficiency of the evidence as to each theory.
We disagree.
The rule we apply in analyzing the sufficiency of the
evidence was articulated in Commonwealth v. Zanetti, 454 Mass.
449, 468 (2009):
"we will examine whether the evidence is sufficient to
permit a rational juror to conclude beyond a reasonable
doubt that the defendant knowingly participated in the
commission of the crime charged, with the intent required
to commit the crime, rather than examine the sufficiency of
the evidence separately as to principal and joint venture
liability."
As we noted in Akara, 465 Mass. at 254, the circumstances of
that case were "unusual," such that we departed from our
traditional analysis under Zanetti, supra. In Akara, supra at
254-255, two defendants were tried jointly, but the evidence
presented did not support the conclusion that both defendants
could have fired the weapon. Paradoxically, the strongest
evidence against each defendant was that he knowingly
participated in the charged crime by pulling the trigger. Id.
at 254. Given the unique factual circumstances of the case,
this court considered "whether the evidence, . . . in the light
most favorable to the Commonwealth, support[ed] the conclusion
that each defendant, although not the shooter, participated in
and shared the requisite intent to commit the crime" to ensure
that each conviction was legally supportable. Id.
13
This case, however, does not call for such a departure from
Zanetti. Although the defendant correctly notes that here, as
in Akara, the Commonwealth proceeded on mutually exclusive
theories of joint venture (e.g., the defendant as the shooter
and as a coventurer), there was no codefendant upon whose
actions the defendant's conviction relies. See Akara, 465 Mass.
at 254. Thus, the Commonwealth's burden here is to demonstrate
that the evidence, viewed in the light most favorable to the
Commonwealth, supported the conclusion that the defendant
"knowingly participated in the commission of the crime charged,
alone or with others, with the intent required for that
offense," Zanetti, 454 Mass. at 468, rather than prove each
"theory" separately.
"In order to have committed murder in the first degree with
deliberate premeditation, a defendant must have had or shared an
'intent to kill or cause death,' [Commonwealth v. Norris, 462
Mass. 131, 139 (2012)], which was the 'product of "cool
reflection."'" Commonwealth v. Tavares, 471 Mass. 430, 434-435
(2015), quoting Zanetti, 454 Mass. at 455. "In evaluating
whether the evidence at trial was sufficient to support these
elements, we 'view the evidence presented in the Commonwealth's
case-in-chief in the light most favorable to the Commonwealth
and ask whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.'"
14
Commonwealth v. Gonzalez, 475 Mass. 396, 407 (2016), quoting
Commonwealth v. Simpkins, 470 Mass. 458, 461 (2015).
"[C]ircumstantial evidence is sufficient to establish guilt
beyond a reasonable doubt[, and t]o the extent that conflicting
inferences may be drawn from the evidence, it is for the jury to
decide which version to credit" (citation omitted).
Commonwealth v. Miranda, 458 Mass. 100, 113 (2010), cert.
denied, 565 U.S. 1013 (2011), S.C., 474 Mass. 1008 (2016).
From the evidence, a reasonable jury could have found that
the defendant was motivated by anger at the ongoing feud between
the Woodward Avenue gang and the Wendover Street gang,
especially after the altercation at the gasoline station between
the defendant, Lopes, and Montrond, and members of the Wendover
Street gang, which occurred two months prior to the murder,
resulted in the injury to the defendant and Lopes. The jury
also could have found that the defendant's threat, "You don't
belong here," was evidence of his motivation to kill because the
victim, an associate of the Wendover Street gang, was present in
Woodward Avenue gang "territory."
Based on the surveillance footage from the interior and
exterior of the bar and the defendant's GPS data, the jury also
could have found that after the defendant left the bar the first
time, he began stalking the victim, thus demonstrating his
knowing participation and shared intent to commit the
15
premeditated murder. See Zanetti, 454 Mass. at 455.
Specifically, the defendant traveled to the area near the bar
around 10:20 P.M., before returning to Woodward Avenue.
Approximately ten minutes later, after the victim and Teixeira
left the bar, the defendant walked to Burrell Street where the
victim had been parked and then turned around. Thereafter, the
defendant drove to Albion Street, where Teixeira lived, and
later returned to the bar and searched for the victim at 10:45
P.M. At around 11 P.M., the defendant threatened the victim,
stating, "You don't belong here," and approximately eight
minutes later, he slowly drove by the bar where the victim was
smoking a cigarette outside. This interaction made the victim
change his plan of getting a drink at the bar, and instead he
insisted that he and Teixeira leave the bar. Finally, a
vehicle's headlights flashed four times signaling the victim's
arrival at his vehicle.
The inference of the defendant's participation in the joint
venture is even stronger based on the victim's statement as he
approached his vehicle, "Are you for real, Little J?," and
Teixeira's observation of a man in the middle of the street with
short braided hair, which matched the description of the
defendant. Also, the defendant's GPS data places him walking on
Burrell Street, near the victim's vehicle, at or about the time
16
of the murder. Seconds later, gunshots rang out from the alley,
killing the victim.
The defendant's flight from the scene less than a minute
after the shooting, traveling thirty-eight miles per hour on
Marshfield Street and eventually arriving on Woodward Avenue,
and telephone calls with his suspected coventurers immediately
before the shooting and in the thirty minutes after, allow the
reasonable inference of the defendant's participation in and
shared intent to commit the murder. See Miranda, 458 Mass. at
113; Zanetti, 454 Mass. at 455.
Therefore, the jury could reasonably have found that the
defendant knowingly participated in the premeditated murder,
with the requisite shared intent. See Zanetti, supra at 468.
2. Gang opinion testimony. The judge conducted a voir
dire to assess -- and to allow the defendant to challenge -- the
foundation for the opinions of the Commonwealth's gang expert,
Detective Martin O'Malley. At trial, the jury heard about
O'Malley's background and experience with Cape Verdean gangs.
The defendant contends that the judge abused her discretion in
allowing this testimony, both because O'Malley was not qualified
and because his testimony was based on inadmissible hearsay.
The Commonwealth argues that the evidence was properly admitted
to prove motive, and was based on the qualified expert's
personal knowledge. There was no error.
17
Expert opinion testimony "must rest on a proper basis, else
inadmissible evidence might enter in the guise of expert
opinion." Commonwealth v. Waite, 422 Mass. 792, 803 (1996).
Proper bases include facts within the witness's direct personal
knowledge, or unadmitted but independently admissible evidence.
See Mass. G. Evid. § 703 (2017); Department of Youth Servs. v. A
Juvenile, 398 Mass. 516, 531 (1986). Here, O'Malley's extensive
experience with Cape Verdean gangs generally, and with the
victim and defendant specifically, qualified him as an expert
and provided direct personal knowledge for the testimony he
offered. O'Malley served as lead investigator from the Boston
police department in an approximately two-year joint
investigation with the Federal Bureau of Investigation into
Woodward Avenue gang members, which concluded in January, 2013.
Before that, he was a patrolman in the Dorchester section of
Boston for seven years, and assigned to the youth violence
strike force gang unit for another two. In both capacities,
O'Malley logged countless conversations with Cape Verdean
residents -- including concerned citizens, cultivated
informants, and admitted gang members -- and from these
interactions, he made determinations of gang affiliation. He
testified to individual affiliations within the Woodward Avenue
and Wendover Street gangs; to the territorial reach of each
gang; and to the history of the gangs as aligned until about
18
2005, when a split gave rise to a feud active at the time of the
victim's death. O'Malley knew the victim since about 2005, and
had observed him with Wendover Street gang associates and at the
addresses of the gang's headquarters on several occasions. He
was similarly familiar with the defendant, whom he had observed
wearing Woodward Avenue gang colors and in the presence of
Woodward Avenue gang leaders on multiple occasions. O'Malley
also testified that the defendant had left the Wendover Street
gang for the Woodward Avenue gang in 2006 and that, as a result,
animosity remained between the defendant and a leader of the
Wendover Street gang.
O'Malley's testimony, based on his personal knowledge, was
admissible. Mass. G. Evid. § 703. See Commonwealth v. Smith,
450 Mass. 395, 399, cert. denied, 555 U.S. 893 (2008) (rejecting
hearsay challenge to officer's gang opinion testimony based on
"use of informants, street sources of information, the school
police, teachers, probation officers, enemies," where officer
had personal familiarity with victim, defendant, and their
respective gangs).
The Commonwealth's theory was that there was a joint
venture motivated by this ongoing rivalry between the Woodward
Avenue and Wendover Street gangs. Evidence of the defendant's
affiliation with the Woodward Avenue gang was probative of
motive, and provided necessary context for the defendant's
19
statement to the victim ("You don't belong here"). See
Commonwealth v. Correa, 437 Mass. 197, 201 (2002) ("[W]here
evidence of gang affiliation is relevant to the defendant's
motive, it is within the discretion of the judge to weigh the
probative value of the evidence against its prejudicial
effect").
Moreover, the judge took precautions to minimize any
prejudicial impact of the gang opinion testimony. She conducted
individual voir dire with each juror, using three agreed-upon
questions to confirm the juror's capacity to consider the
evidence only for its limited purpose. Each time the evidence
was introduced, it was accompanied by a thorough limiting
instruction, which was repeated in the final charge. Especially
where the judge carefully cabined properly admitted testimony
with limiting instructions, voir dire, and exclusion of any
references to prior acts of gang-related violence, admitting
that testimony in evidence was not an error. See Smith, 450
Mass. at 400, and cases cited.
3. Prosecutor's opening statement and closing argument.
The defendant argues that the prosecutor's opening statement and
closing argument, to which the defendant did not object, were
improper. "Although not dispositive, we consider the fact that
the defendant did not object to the statements at trial as 'some
indication that the tone [and] manner . . . of the now
20
challenged aspects of the prosecutor's argument were not
unfairly prejudicial.'" Commonwealth v. Lyons, 426 Mass. 466,
471 (1998), quoting Commonwealth v. Mello, 420 Mass. 375, 380
(1995). We conclude that there was no error.
"The proper function of an opening is to outline in a
general way the nature of the case which the counsel expects to
be able to prove or support by evidence." Commonwealth v.
Croken, 432 Mass. 266, 268 (2000), quoting Commonwealth v.
Fazio, 375 Mass. 451, 454 (1978). "[A] claim of improper
[opening statement] by the prosecutor must be judged in light of
the entire [statement], the judge's instructions to the jury,
and the evidence actually introduced at trial." Commonwealth v.
Jones, 439 Mass. 249, 260-261 (2003), quoting Commonwealth v.
Thomas, 429 Mass. 146, 158 (1999). Here, the defendant argues
that the prosecutor improperly appealed to the jury's emotions
by reminding them that they saw where the shooter emerged from
the alley during the view of the crime scene, and by using
phrases such as "killing team" and "stalking and hunting,"
during his opening statement. The prosecutor's statements were
not improper, as they were merely "enthusiastic rhetoric." See
Commonwealth v. Simpson, 434 Mass. 570, 586 (2001). Moreover,
"to the degree the recitation of the evidence was inflammatory,
that was inherent in the odious . . . nature of the crime[]
committed" (citation omitted). Commonwealth v. Johnson, 429
21
Mass. 745, 749 (1999). The jury were properly instructed before
the opening statements, and in the final charge, that the
statements were not evidence.
Similarly, "[c]losing arguments must be viewed 'in the
context of the entire argument, and in light of the judge's
instruction to the jury, and the evidence at trial.'"
Commonwealth v. Braley, 449 Mass. 316, 328-329 (2007), quoting
Commonwealth v. Colon-Cruz, 408 Mass. 533, 553 (1990). The
defendant claims that the prosecutor improperly appealed to the
jury's emotions when he encouraged the jurors to use their
recollections of the view to evaluate the evidence. He also
claims that the prosecutor used improper forceful rhetoric in
describing the victim's murder and the defendant's actions and
that the prosecutor engaged in misconduct when he asked the
jurors to hold the defendant accountable for his actions.
The prosecutor properly encouraged the jury to use their
observations from the view to evaluate the evidence and aid in
reaching their verdict. See Commonwealth v. Corliss, 470 Mass.
443, 448 (2015), quoting Commonwealth v. Gomes, 459 Mass. 194,
199 (2011) ("[a]lthough what is seen on the view may be used by
the jury in reaching their verdict, in a 'strict and narrow
sense a view may be thought not to be evidence'"). Similarly,
the prosecutor's forceful rhetoric was based on the evidence
without focusing on any unnecessarily emotional or inflammatory
22
aspects of the evidence. See Lyons, 426 Mass. at 472.
Moreover, the prosecutor's description of the victim's murder
was based on the evidence and was relevant to establish the
nature of the crime. See Commonwealth v. Sanchez, 405 Mass.
369, 376 (1989), quoting Commonwealth v. Kozec, 399 Mass. 514,
521 (1987) ("Although this line of argument may evoke sympathy
for the victim[], the argument went to the issues in the case
and was 'based on what the jury saw and heard'"). The judge
instructed the jury prior to the arguments and in the final
charge that closing statements were not evidence, and
specifically instructed the jury to "not decide this case in any
way based on sympathy towards the victim or the victim's family
or any sympathy towards the defendant." The prosecutor's
statement reminding the jury that the victim's murder occurred
nearly two years prior to the trial and that the time for the
defendant's accountability is now, was not improper. Although
the statement regarding the defendant's accountability was
better left unsaid, "[t]he prosecutor's remarks were
characteristic of 'enthusiastic rhetoric, strong advocacy, and
excusable hyperbole,' and did not cross the line between fair
and improper argument." Lyons, supra, quoting Commonwealth v.
Sanna, 424 Mass. 92, 107 (1997). Contrast Commonwealth v.
Torres, 437 Mass. 460, 464-465 (2002) (improper argument where
prosecutor asked jury to "answer the call for justice and hold
23
[the defendant] accountable for what he did"). The prosecutor's
statement "falls within the category of permissible rhetoric and
. . . there was no error." Commonwealth v. Mejia, 463 Mass.
243, 255 (2012).
The defendant claims that the prosecutor also improperly
encouraged the jurors to use evidence that Montrond returned the
rented Cadillac the day after the murder as evidence of the
defendant's participation in the joint venture. We do not
agree. The prosecutor was entitled to argue inferences from the
evidence that are favorable to the Commonwealth's case. See
Lyons, 426 Mass. at 472. The jury reasonably could infer that
in order to cover up his participation in the joint venture,
Montrond returned the Cadillac the day after the murder, before
the end of his rental contract. The jury could further infer
the defendant's knowing participation based on his presence in
the Cadillac that evening and the surveillance footage depicting
the Cadillac following the defendant's vehicle on multiple
occasions that evening. See id.
Finally, the defendant's argument that the prosecutor
improperly suggested that the jury's job was "easier" because
they could find the defendant guilty of joint venture without
determining whether he was the shooter or a coventurer is
without merit. The prosecutor correctly stated the law of joint
venture and the Commonwealth's burden. See Commonwealth v.
24
Deane, 458 Mass. 43, 50-51 (2010) ("the Commonwealth is not
required to prove exactly how a joint venturer participated in
the murder[], . . . or which of the [coventurers] did the actual
killing" [citation omitted]).
4. Evidentiary rulings. The defendant argues that the
judge committed reversible error in (1) allowing inadmissible
statements that unfairly bolstered the Commonwealth's theory of
gang retaliation and (2) allowing improper "interpretive"
testimony from the lead homicide detective. We address these
arguments in turn.
a. Statements by the victim's friends. The defendant
challenges the admission of statements from Rosa and one of the
women who were with him that night describing their concern for
the victim after the defendant's statement, "You don't belong
here." The admission of the statements was not improper, as
they were not admitted for their truth and, thus, not hearsay.
See Mass. G. Evid. § 801 (2017). The judge noted that the
witnesses' statements were admissible "to put in context" the
victim's statement of intent to go inside the bar and have a
drink. There was no error or abuse of discretion in admitting
these statements. See L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014).
b. Teixeira's statements. The defendant challenges three
of Teixeira's statements, made after she discovered that the
25
victim had been murdered, admitted under the excited or
spontaneous utterance hearsay exception through the testimony of
a police officer. As Teixeira was being transported to Boston
police headquarters, she exclaimed, "They're going to kill me
for this." Thereafter, while she was waiting to be interviewed
by homicide detectives, Teixeira stated, "These people want to
kill people because of the fucking street." And during her
interview with homicide detectives, Teixeira said, "I'm going to
die for this." There was no error.
A statement is "[a] spontaneous utterance if (A) there is
an occurrence or event sufficiently startling to render
inoperative the normal reflective thought processes of the
observer, and (B) the declarant's statement was a spontaneous
reaction to the occurrence or event and not the result of
reflective thought." Mass. G. Evid. § 803(2) (2017). See
Commonwealth v. Santiago, 437 Mass. 620, 623 (2002). "[T]here
can be no definite and fixed time limit [between the incident
and the statement]. Each case must depend upon its own
circumstances." Mass. G. Evid. § 803(2) note, quoting
Commonwealth v. McLaughlin, 364 Mass. 211, 223 (1973). "[T]he
nexus between the statement and the event that produced it is
but one of many factors to consider in determining whether the
declarant was, in fact, under the sway of the exciting event
when she made the statement." Santiago, supra at 625. A trial
26
judge's determination that an utterance meets the test of
admissibility should be given deference and "only in clear cases
. . . of an improper exercise of discretion should [the judge's]
ruling be revised" (citation omitted). McLaughlin, supra.Here, the Commonwealth used Teixeira's statements to
support its theory that the victim's murder was motivated by the
ongoing feud between the Wendover Street and Woodward Avenue
gangs and by retaliation for the defendant's and Lopes's
injuries from the December, 2011, altercation with a leader of
the Wendover Street gang. Her statements occurred after she
discovered the body of the victim, whom she had been seeing
romantically, after he had been shot to death. Teixeira was
hysterical. Prior to her first challenged statement, she was
found by police lying on the sidewalk screaming and crying.
Officers had to physically restrain Teixeira from returning to
the victim's body and hold her up so that she did not collapse,
as she was unable to stand on her own. Based on her behavior
and body language, it was plain that her presence during the
victim's shooting and the discovery of his body was a
sufficiently startling event. See Commonwealth v. Irene, 462
Mass. 600, 607, cert. denied, 568 U.S. 968 (2012) ("We have
viewed the circumstances of being shot, or witnessing a
shooting, as sufficiently startling to impede normal reflective
thought processes"). Additionally, just prior to Teixeira's
27
statements at police headquarters, she was so emotional that she
became physically ill. Teixeira's emotional demeanor and
physical illness shortly after the victim's murder and the
discovery of his body are sufficient to demonstrate that
Teixeira's statements were "a spontaneous reaction to the
[victim's murder] and not the result of reflective thought."
Mass. G. Evid. § 803(2). "Because both criteria of the
spontaneous utterance exception were satisfied, the testimony
was admissible." Irene, supra.
c. "Interpretive" testimony. The defendant challenges the
admission of the testimony of Detective Brian Black, one of the
lead investigators on the case, on the ground that it was
improper interpretive testimony that went beyond the bounds of
proper lay witness testimony. Because the defendant objected to
Black's testimony, we review any error for prejudicial error.
See Commonwealth v. Canty, 466 Mass. 535, 545 (2013).
Here, Black testified regarding the approximately four
minute and thirty second time discrepancy between the bar's
video surveillance footage and the defendant's GPS data. The
judge allowed Black to review a compilation of the video
surveillance footage side-by-side with the GPS data to help
explain the investigative significance of the evidence when the
time discrepancy is accounted for. Black testified that he had
assisted in the creation of the compilation, discerned the
28
extent of the time discrepancy between the video surveillance
footage and the defendant's GPS data, and had detailed
familiarity with the evidence. His testimony properly assisted
the jury in evaluating the evidence and understanding the time
discrepancy. See Mass. G. Evid. § 701 & note (2017). Moreover,
the defendant was not prejudiced by Black's testimony regarding
the time discrepancy because the defendant's own witness gave
similar testimony, opining that the time discrepancy was
approximately four minutes and thirty-five seconds. The
defendant's witness also attempted to resolve the time
discrepancy by synchronizing the bar's surveillance footage and
the defendant's GPS data. There was no error.
5. Ineffective assistance of counsel. The defendant
argues that trial counsel provided constitutionally ineffective
assistance in failing to present evidence that would have
countered the Commonwealth's theory of gang retaliation.
Specifically, the defendant asserts that trial counsel should
have "offered or directed the jury's attention to" (1) a Boston
police memorandum detailing the December 24, 2011, altercation,
which included a nonexhaustive list of active Wendover Street
gang and Woodward Avenue gang associates, and which failed to
list the victim as a Wendover Street gang associate; (2) the
voir dire testimony of the victim's sister that he was an
"associate," not a member, of the Wendover Street gang; and (3)
29
the defendant's GPS data and cellular telephone evidence that
would counter the Commonwealth's theory that the defendant had
been stalking or searching for the victim.
"Where, as here, the defendant has been convicted of murder
in the first degree, we review his claim of ineffective
assistance of counsel to determine whether the alleged lapse
created a 'substantial likelihood of a miscarriage of justice,'
a standard more favorable to the defendant than the
constitutional standard otherwise applied under Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974)." Commonwealth v. Fulgiam,
477 Mass. 20, 29 (2017), quoting Wright, 411 Mass. at 681-682.
"We focus more broadly on whether there was error and, if so,
whether any such error 'was likely to have influenced the jury's
conclusion.'" Fulgiam, supra, quoting Wright, supra. "The
burden is on the defendant to demonstrate that something
inappropriate was likely to have unfairly influenced the jury's
verdict." Commonwealth v. Painten, 429 Mass. 536, 550 (1999).
Here, the defendant argues that counsel's failure to direct
the jury's attention to the aforementioned pieces of evidence or
seek their admission likely influenced the jury's verdict. We
disagree. The defendant failed to establish how admission of
the police memorandum and the testimony of the victim's sister
that the victim was not a full-fledged member of the Wendover
Street gang would have countered the Commonwealth's theory of
30
gang retaliation. See id. The Commonwealth provided evidence
that the victim was an "associate" of the Wendover Street gang
and that he had a friendship with a leader of that gang, who was
involved in the December 24, 2011, altercation with the
defendant, Lopes, and Montrond. Similarly, evidence that the
defendant traveled in the same area prior to seeing the victim
at the bar does not counter the reasonable inference that after
the defendant left the bar, having seen the victim, the
defendant was searching the area for the victim as part of a
joint venture to commit premeditated murder. See id. The
defendant's assertion that trial counsel was ineffective is
unavailing.
6. Motion to dismiss indictments. The defendant argues
that the motion judge erred in denying his motion to dismiss
indictments, pursuant to Commonwealth v. McCarthy, 385 Mass.
160, 161-163 (1982), because the Commonwealth failed to
establish probable cause to believe that the defendant committed
the victim's murder. This argument has no merit.
"Probable cause to sustain an indictment is a decidedly low
standard." Commonwealth v. Hanright, 466 Mass. 303, 311 (2013).
"[A]t the very least the grand jury must hear sufficient
evidence to establish the identity of the accused, . . . and
probable cause to arrest him" (citation omitted). McCarthy, 385
Mass. at 163. "Probable cause has been defined as 'reasonably
31
trustworthy information . . . sufficient to warrant a prudent
man in believing that the defendant had committed or was
committing an offense.'" Hanright, supra at 311-312, quoting
Commonwealth v. Stevens, 362 Mass. 20, 26 (1972). "Where, as
here, the liability of a joint venturer is at issue, the
Commonwealth must present the grand jury with evidence that the
defendant both participated in, and shared the requisite mental
state for, each crime charged." Hanright, supra at 312. When
reviewing the sufficiency of an indictment, the grand jury
evidence must be viewed in the light most favorable to the
Commonwealth. See Commonwealth v. Moran, 453 Mass 880, 885
(2009).
Here, the Commonwealth presented to the grand jury
sufficient evidence to sustain an indictment for the murder in
the first degree of the victim as part of a joint venture. The
evidence established that the defendant, Lopes, and Montrond
were at the bar on the night of the murder. Video surveillance
footage from the bar established that the SUV driven by the
defendant and the Cadillac driven by Montrond were circling the
area of the bar that night. Thirty minutes before the shooting,
the defendant searched the bar. Prior to the shooting, the
defendant told the victim he should not be in the area before
speeding off, which made some of the victim's friends concerned.
Despite Rosa's suggestion otherwise, the victim decided to go
32
into the bar and have a drink. The victim changed his mind
after smoking a cigarette outside the bar and decided to leave.
The victim told Teixeira about the defendant's threat as they
were walking toward the victim's vehicle and confirmed that the
defendant was the person who made the threat. Teixeira saw a
man with braids, who she identified as the defendant, walking
toward the vehicle and heard the victim say something like, "You
gonna do me like this, J?" before the victim was shot. Finally,
the defendant's GPS data placed him within fifteen feet of the
victim at or about the time of the shooting. Based on the
evidence presented to the grand jury, viewed in the light most
favorable to the Commonwealth, there was probable cause to
believe that the defendant knowingly participated and shared in
the intent to commit the premeditated murder of the victim. See
Hanright, 466 Mass. at 312.
7. Review pursuant to G. L. c. 278, § 33E. After a full
review of the trial record, we affirm the conviction and decline
to grant extraordinary relief pursuant to G. L. c. 278, § 33E.
Judgment affirmed.