Opinion
19-P-625
08-24-2021
COMMONWEALTH v. Benzy BAIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his convictions arising out of the 2016 killing of seventeen year old Raekwon Brown. Tried as a joint venturer with codefendants Jaden Waiters and Jonathan Aguasvivas, the defendant was convicted of two counts of assault and battery by discharging a firearm ( G. L. c. 265, § 15E ), four counts of armed assault with intent to murder ( G. L. c. 265, § 18 [b ]), unlicensed possession of a firearm ( G. L. c. 269, § 10 [a ]), and carrying a loaded firearm ( G. L. c. 269, § 10 [n ]); he was acquitted of murder. On appeal, the defendant argues that (1) the judge erred in admitting expert testimony describing certain tattoos and symbols as related to gangs; (2) the evidence both at trial and before the grand jury was insufficient to prove that he engaged in a joint venture; (3) the judge erred in admitting ballistics evidence found in the codefendants’ apartments; and (4) the judge abused discretion in denying the defendant's motion for severance. We affirm.
The jury found Waiters guilty of murder in the first degree and Aguasvivas of murder in the second degree, and also found each of them guilty of the same crimes as the defendant.
Background. For purposes of our analysis of the sufficiency of the evidence, we summarize the facts in the light most favorable to the Commonwealth, reserving certain details for our discussion of the legal issues. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
Because, as is set forth more fully below, we find no error in the judge's other rulings, we need not address prejudice, i.e., whether a different ruling would have caused the jury to view the facts differently.
In 2016, in the Dorchester section of Boston, rival gangs known as H Block and Castlegate were involved in an ongoing feud. The members of each gang did not ordinarily venture into the territory of the opposing gang. The jury could infer that the defendant, Aguasvivas, and Waiters were members of H Block. In early 2016, Aguasvivas had an altercation with X during which Aguasvivas demanded to know if X was affiliated with Castlegate, slapped X's face, and warned X against involvement with Castlegate. Castlegate territory was an area that included Washington Street near the Jeremiah Burke High School (Burke school).
A pseudonym.
At 12:57 P.M. on June 8, 2016, a fire alarm sounded at the Burke school, causing students to evacuate. Students, including Brown (the victim), congregated across the street. Among them were two former Burke school students, X and Y, both of whom were affiliated with Castlegate. After the fire alarm ended and school resumed, that group remained outside.
A pseudonym.
At 1:07 P.M. , surveillance video captured a rented Toyota minivan driving past the group across from the Burke school. Aguasvivas was the driver, the defendant was in the front passenger seat, and Waiters was in the back seat. The minivan circled back and parked about a block away from the Burke school. Waiters got out of the minivan, walked toward the group across from the Burke school, raised a firearm, and fired at least eight shots at them. The victim was killed and two other Burke school students were injured. Waiters ran back to the minivan, which was waiting with its rear passenger door open, and got in with the firearm in his hand. The minivan sped away.
The movements of the minivan were tracked by cell site location information of cell phones of several of its occupants, as well as by data from a global positioning system bracelet worn by the defendant.
Eight nine millimeter shell casings were later recovered near the shooting.
Another nine millimeter shell casing and one live round of ammunition was found near where the minivan had waited.
A few minutes later, surveillance video captured the minivan arriving at Cleaves Court, an apartment complex in H Block territory. Waiters got out of the minivan and knocked on the door of a known H Block member. After receiving no answer, Waiters returned to the minivan. Soon after, a woman arrived in a car and interacted with the defendant. She went to a dumpster, reached in, and pulled out a plastic bag, which she emptied of its contents. Holding the bag, she walked back to the minivan. Then she left the area of the minivan carrying the bag, now weighted down by its contents. She got into her car and drove away.
Surveillance video later captured the defendant and his codefendants at Warren Gardens, another apartment complex, trying to alter the appearance of the rented minivan by applying tints to its windows.
Discussion. 1. Expert testimony about gangs. The defendant argues that it was error to admit testimony of Boston police detective Brian Delahanty about the H Block and Castlegate gangs, the feud between them, and certain insignias associated with H Block because (1) Detective Delahanty was not a qualified expert, (2) the testimony was not properly a subject for expert opinion, and (3) it was more prejudicial than probative. Those arguments are unavailing.
First, after a lengthy voir dire, the judge properly qualified Detective Delahanty as an expert. Detective Delahanty had been a Boston police officer for thirteen years and had spent time as a member of the youth violence strike force, also known as the gang unit, in which he patrolled the areas controlled by both H Block and Castlegate. He described the number of members, territory, and insignias associated with each gang. He explained that he based his opinions on his personal interactions with members of both H Block and Castlegate, including his having arrested members of both gangs and responded to incidents of violence between the two gangs. From that, it was in the judge's discretion to rule that Detective Delahanty was qualified to provide expert testimony based on his direct personal knowledge and extensive experience with H Block and Castlegate, and the local nature of the two gangs. See Commonwealth v. Barbosa, 477 Mass. 658, 667-668 (2017) (police expert testimony on gang affiliation based on personal knowledge). Cf. Commonwealth v. Hinds, 487 Mass. 212, 226-227 (2021) (abuse of discretion to exclude expert testimony explaining significance of tattoo allegedly connecting victim to gang).
The defendant's second argument, that Detective Delahanty's testimony was not a proper subject of expert opinion, also is without merit. "Expert opinion testimony is appropriate and admissible where an expert's specialized knowledge would be helpful to the jury" (quotation omitted). Commonwealth v. Alvarez, 480 Mass. 299, 312 (2018). See Mass. G. Evid. § 702(a) (2021) (requiring "scientific, technical, or other specialized knowledge [that] will help the trier of fact to understand the evidence or to determine a fact in issue"). Detective Delahanty informed the jury that there was an ongoing feud between the two gangs, sometimes involving violence. He also explained that H Block got its name because its territory included many streets beginning with the letter "H," including Humboldt and Homestead; Castlegate territory was smaller, but included the area of the Burke school. He testified that H Block members often wear clothing with an Oakland Raiders logo or emblazoned with the letter "H," such as Harvard apparel, while Castlegate gang members often wear clothing emblazoned with the letter "C," such as Chicago Cubs or Cincinnati Reds apparel. Shown a photograph depicting the defendant's tattoos of a signpost with the street names "Humboldt" and "Homestead," and an Oakland Raiders insignia with the letters "R.I.P.," Detective Delahanty opined that those were typical H Block signifiers. As to a second photograph depicting the defendant forming the letter "H" with his hands, the detective opined that it was also a typical H Block symbol. As ordered by the judge, Detective Delahanty never opined that the defendant was a member of H Block.
Lastly, "where 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." Commonwealth v. Correa, 437 Mass. 197, 201 (2002). Detective Delahanty's expert testimony supported the inference that the defendant was engaged in a joint venture with his codefendants motivated by the ongoing feud between H Block and Castlegate. See Commonwealth v. Swafford, 441 Mass. 329, 332 (2004) ("We repeatedly have held that evidence of gang affiliation is admissible to show motive or joint venture, and have given deference to judges’ determinations in that regard").
Moreover, the judge was diligent in taking precautions to minimize any prejudicial impact of Detective Delahanty's expert testimony about gangs. See Swafford, 441 Mass. at 333. During empanelment, he conducted individual voir dire about prospective jurors’ views of gangs to ensure that the jury would be fair and impartial. During Detective Delahanty's testimony, the judge gave a thorough limiting instruction. In his final charge, the judge cautioned the jury that the gang evidence was to be used only to prove affiliation between codefendants or motive. Contrast Commonwealth v. Wardsworth, 482 Mass. 454, 472 (2019) (instruction improperly "appear[ed] to permit the jury to use the [gang] evidence for any purpose relevant to their determination of guilt or innocence"). Where Detective Delahanty's testimony was probative of motive and joint venture, and the judge mitigated any prejudicial impact through juror voir dire and limiting instructions, we see no error in its admission. See Barbosa, 477 Mass. at 669. See also Commonwealth v. Smiley, 431 Mass. 477, 484 (2000) (not "palpable error" where "evidence admitted was probative on the issue of joint venture, and the possibility of prejudice was minimized by a strong jury instruction").
2. Sufficiency of evidence of joint venture. The defendant argues that the Commonwealth did not prove that he engaged in a joint venture, and so the judge erred in denying his motion for a required finding of not guilty. In reviewing the sufficiency of the evidence, "[w]e consider whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt." Commonwealth v. Ayala, 481 Mass. 46, 51 (2018), citing Latimore, 378 Mass. at 677-678. To prove joint venture, the Commonwealth was required to prove that "the defendant knowingly participated in the commission of the crime charged, and that the defendant had or shared the required criminal intent." Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009). Liability can be imposed for participation in a crime when the conduct "take[s] the form of agreeing to stand by at, or near, the scene of the crime to act as a lookout, or to provide aid or assistance in committing the crime, or in escaping, if such help becomes necessary." Id. at 470 (Appendix).
Here, based on the circumstantial evidence including data from his global positioning system (GPS) bracelet, the jury could have found that the defendant knowingly participated in and shared with his two codefendants the intent to commit the crimes of which he was convicted, including assault and battery by discharging a firearm and armed assault with intent to murder the victims. Contrast Swafford, 441 Mass. at 339 (insufficient evidence that defendant drove vehicle from which shots were fired at opposing gang member). The jury could infer that the defendant and his codefendants were members of H Block, and that there was an ongoing violent feud between H Block and Castlegate. The day before the murder, Aguasvivas's girlfriend rented the minivan. From evidence that before the shooting the three codefendants rode in the minivan to rival gang territory, the jury could infer that they were not there by happenstance, but to execute a plan. See Commonwealth v. Chhim, 447 Mass. 370, 380 (2006) (circumstantial evidence may prove planning). Contrast Zanetti, 454 Mass. at 450-454 (spontaneous crime with no evidence of planning or agreement).
Evidence of the three codefendants’ conduct during the murder also proved a joint venture. After driving within view of the group across from the Burke school, the minivan circled back and parked a short distance away. The defendant then waited with Aguasvivas in the minivan, its back door open, while Waiters approached the group, shot repeatedly, and then ran back to the minivan. See Chhim, 447 Mass. at 378-379 ("The jury could have inferred from the fact that the defendant remained at the scene ... that he kept himself in a position ready and able to help the other attackers ... [and] was willing and available to assist in the getaway of the joint venturers after the beating ended"). See also Commonwealth v. Leach, 73 Mass. App. Ct. 758, 763 (2009) (evidence that all defendants present in vehicle at shooting relevant to joint venture analysis).
The defendant's conduct after the shooting also proved joint venture. He fled with his codefendants to H Block territory, where, the jury could infer from the surveillance video, he got rid of the murder weapon by handing it off to the woman who carried it away in the plastic bag. Later, he helped to apply tint to the windows of the rented minivan, trying to disguise its appearance. Joint venture may be proven by circumstantial evidence, including evidence of flight and disposal of weapons used. See Commonwealth v. Gomes, 475 Mass. 775, 782 (2016) (flight); Commonwealth v. Reaves, 434 Mass. 383, 391 (2001) (presence during murder and disposal of murder weapons). See also Commonwealth v. Watson, 487 Mass. 156, 162-163 (2021) (participation in planning, presence at scene, and driving getaway car).
The defendant argues that there was insufficient evidence that he knew that Waiters had a gun. See Commonwealth v. Britt, 465 Mass. 87, 100 (2013) (to convict on joint venture theory for crime involving possession or use of firearm, Commonwealth must prove defendant knew that one of the joint venturers was armed). From the circumstantial evidence, the jury could infer that the defendant knew that Waiters was armed. See Leach, 73 Mass. App. Ct. at 763. The evidence, which included the codefendants’ affiliation with H Block and its ongoing violent feud with Castlegate, permitted the jury to infer that they ventured into the rival gang's territory to incite or engage in violence, and that they would not have done so unarmed. That inference, once combined with the fact that the defendant waited in the minivan and subsequently disposed of the murder weapon, allowed the jury to find beyond a reasonable doubt that the defendant knew that at least one of his codefendants had a gun. The judge properly denied the defendant's motion for a required finding of not guilty.
The defendant also argues that the evidence before the grand jury was insufficient even to establish probable cause, and so his pretrial motion to dismiss should have been allowed. See Commonwealth v. McCarthy, 385 Mass. 160, 162-163 (1982). This argument cannot succeed, because the evidence presented to the grand jury was essentially duplicative of that presented at trial, and the probable cause standard is significantly less exacting than that required at trial of proof beyond a reasonable doubt. See Commonwealth v. Rakes, 478 Mass. 22, 29 (2017). Therefore, the defendant's McCarthy motion was properly denied.
3. Ballistics evidence. The defendant argues that ballistics evidence should not have been admitted at trial. About two weeks after the murder, police found in Aguasvivas's home five nine millimeter bullets and two magazines, one bearing Aguasvivas's fingerprint; police found in Waiters's home a single nine millimeter bullet. Those were the same caliber as shell casings recovered from the area of the shooting and where the minivan had waited.
Before and during trial, the defendant did not oppose the Commonwealth's motion in limine to admit that ballistics evidence, join the codefendants’ oppositions to its admission, or object when it was offered. In these circumstances, our review is limited to whether the introduction of the evidence created a substantial risk of a miscarriage of justice. Commonwealth v. Wentworth, 53 Mass. App. Ct. 82, 91-92 (2001).
"Whether proffered evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge's broad discretion and are not disturbed absent palpable error" (quotations omitted). Commonwealth v. Rosa, 468 Mass. 231, 237 (2014). The judge did not abuse his discretion in admitting the ballistics evidence. It was relevant because "the jury could infer that the [ammunition and magazines] ... were connected to the guns used by the perpetrators of the crime, or at a minimum that this evidence tended to show that at least one of the perpetrators ... had access to the ‘means of committing the crime.’ " Id. at 237-238, quoting Commonwealth v. McGee, 467 Mass. 141, 156 (2014).
Further, the judge mitigated the risk of unfair prejudice to the defendant by repeating a limiting instruction when each piece of ballistics evidence was admitted. He cautioned the jury that the evidence was admissible only for the purpose of showing that Waiters and Aguasvivas had access to or familiarity with that ammunition or those magazines. He went on to instruct that ballistics evidence found in Waiters's or Aguasvivas's home was not to be considered "as any evidence against any other defendant unless [the jurors found] that the Commonwealth [had] proved beyond a reasonable doubt that any other defendant was in fact acting in concert and as a joint venturer." Therefore, we discern no error and conclude that the admission of the ballistics evidence did not create a substantial risk of a miscarriage of justice.
4. Severance. The defendant argues that his defense was antagonistic to that of Aguasvivas, and that the resulting prejudice deprived him of a fair trial. It is presumed that "[w]hen criminal charges against two or more individuals ‘arise out of the same criminal conduct,’ " the defendants will be tried together. See Commonwealth v. Siny Van Tran, 460 Mass. 535, 542 (2011), quoting Mass. R. Crim. P. 9 (b), 378 Mass. 859 (1979). "Severance generally is a matter within the trial judge's discretion ...". Watson, 487 Mass. at 168. "[It] is required only if the defenses are both mutually antagonistic (or mutually exclusive) and irreconcilable." Commonwealth v. Akara, 465 Mass. 245, 256 (2013), quoting Commonwealth v. Vasquez, 462 Mass. 827, 836 (2012). "[D]efenses are mutually antagonistic and irreconcilable where the sole defense of each [is] the guilt of the other" (quotation omitted). Siny Van Tran, supra at 542.
The defendant does not contend that his defense was antagonistic to Waiters's defense.
At trial, the defendant's theory of defense was not mutually antagonistic with that of Aguasvivas. This is not a case where each codefendant sought to escape conviction by blaming the other. Contrast Commonwealth v. Moran, 387 Mass. 644, 659 (1982) (failure to sever prejudicial where defendants were sole witnesses and each codefendant testified and accused the other of killing the victim). The defendant's theory was that there was insufficient evidence linking him to the crime or proving that he shared the codefendants’ intent to kill and shoot the victims. Similarly, Aguasvivas's defense was that there was insufficient evidence linking him to the crime, no motive for him to take part in the shooting, and no evidence that he knew that a shooting was going to take place. Those theories of defense did not give rise to "a danger that the jury [would] feel compelled to choose between defendants rather than to assess the proof against each defendant separately." Watson, 487 Mass. at 169, quoting Moran, 387 Mass. at 659.
In addition, the defendant argues that the lack of severance unfairly prejudiced him because the evidence at trial put him in a different position than those of his codefendants. Specifically, he points to Aguasvivas's prior physical altercation with X, the ballistics evidence found in the codefendants’ homes, and an eyewitness's identification of the codefendants (but not the defendant) as two of the people tinting the minivan's windows. Abundant circumstantial evidence proved the defendant's involvement in the joint venture, including data from his GPS bracelet documenting his whereabouts before, during, and after the shootings. He was not entitled to severance simply because he might "have had a better chance of acquittal if he had been tried alone" (quotation omitted). Commonwealth v. Clarke, 418 Mass. 207, 217 (1994) (rejecting claim of unfair prejudice notwithstanding claim that evidence against defendant "was slight in comparison" to that against codefendant). Therefore, we discern no abuse of discretion in the judge's denial of the defendant's motion to sever.
Judgments affirmed.