Opinion
17-P-1260
04-08-2019
COMMONWEALTH v. FRUTUOSO BARROS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions, after a Superior Court jury trial, of two counts of conspiracy to commit murder, conspiracy to commit an armed home invasion, and conspiracy to commit assault and battery by means of a dangerous weapon (ABDW). He argues that (1) expert testimony was improperly admitted at trial, (2) there was insufficient evidence to support the conspiracy convictions related to armed home invasion and ABDW, (3) trial counsel was ineffective, (4) the Commonwealth's closing argument was improper, and (5) his pretrial motion to dismiss the habitual offender portions of the indictments was erroneously denied. We affirm.
1. Expert testimony. A police detective testified as an expert witness on the structure and hierarchy of a gang known as the Latin Kings, to which the defendant belonged, and on the meaning of certain coded terms used by Latin Kings members. The defendant now argues that the detective's testimony was cumulative of, and improperly vouched for the testimony of, the Commonwealth's other witnesses.
But the transcript shows that the defendant did not make any such objection at trial. In any event, even if we were persuaded that some of the testimony was cumulative, the judge had the discretion to admit it if its relevance outweighed its cumulative nature. Commonwealth v. Bonds, 445 Mass. 821, 831 (2006). "Generally the admission of cumulative evidence does not constitute reversible error." Commonwealth v. Davis, 54 Mass. App. Ct. 756, 764 (2002), citing Commonwealth v. Bart B., 424 Mass. 911, 915 (1997). We see no abuse of discretion, let alone one creating a substantial risk of a miscarriage of justice.
The closest the defendant came was to make a "suggestion," before the detective testified, that "in the interest of economy," the detective could skip over the parts of his testimony expected to discuss the Latin Kings hierarchy, which other witnesses had already addressed, in order to "get to the heart of his testimony." The judge declined to adopt the suggestion, stating that the detective's expected testimony on that subject was "perfectly permissible," was important to enable the jury to assess his knowledge in comparison to the testimony of actual Latin Kings members, and was not expected to be lengthy. The defendant did not press the point further.
As for the defendant's claim of "vouching," the detective's testimony did not express any opinion on the credibility of, or even mention, any other witness. The defendant cites no case suggesting that testimony that merely corroborates other witnesses' testimony constitutes improper vouching.
2. Sufficiency of the evidence. The defendant argues that the judge erred in denying his motions for required findings of not guilty on the charges of conspiracy to commit an armed home invasion and conspiracy to commit ABDW. We review 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." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
"A conspiracy is a 'combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means.'" Commonwealth v. Anselmo, 33 Mass. App. Ct. 602, 604 (1992), quoting Commonwealth v. Beneficial Fin. Co., 360 Mass. 188, 249 (1971), cert. denied, 407 U.S. 914 (1972). "[T]he crime of conspiracy is distinct from the target offense envisaged . . . and is complete when an agreement for a criminal purpose, express or tacit, is formed, although the details of the agreement have not been worked out." Commonwealth v. Stack, 49 Mass. App. Ct. 227, 235 (2000).
On the charge of conspiracy to commit an armed home invasion, the defendant argues that there was insufficient evidence that the building in question was a "dwelling place" as opposed to a mere meeting place. See G. L. c. 265, § 18C ("Whoever knowingly enters the dwelling place of another . . ."). But "it would not matter what the fact was, if the conspirators believed the place was a dwelling to which a mission was being directed and joined hands on this basis" (emphasis added). Stack, 49 Mass. App. Ct. at 238. There was ample evidence that the defendant so believed.
The defendant and other Latin Kings members involved in the plan referred to the persons who were the object of the "raid" as the "first" and the "second," denoting particular positions within the hierarchy of a renegade gang group in Lynn. The jury heard recordings in which the defendant and other gang members (including one who was an informant, code-named "Ecko") discussed the raid. The defendant referred to the location to be raided as the place "where the first[] and the second live." The defendant stated that it was a "house," on "a gas station across the street and they live on the second floor." Ecko testified that part of the plan was "to run into the house, kick the door down, jump in the house, beat everybody that's in the house." This was sufficient.
On the charge of conspiracy to commit ABDW, the defendant argues that there was insufficient evidence of a plan to use a dangerous weapon against the "first" or the "second." But the jury heard recordings of the defendant and others discussing which firearms to bring on the raid. The recordings also showed the defendant and others contemplating the use of those firearms. Thus, the defendant said, "[I]f these niggas is playing the war like that, it's nothin to just bleak his fuckin head off." He added, "The second looks like the first, nigga, the first supposed to be on the low. You gots your gunners, you got all that." Others involved in the planned raid stated that "we'll blow them up," that those who "wanted to shoot them niggas just follow us," and that "[i]f niggas really go over there, and it really pop off . . . that shit's gonna sound like the fuckin fourth of July." Ultimately, as the defendant and others traveled in a three-car caravan on the way to carry out the raid in Lynn, the police stopped the cars and in one of them found a firearm. This was sufficient.
3. Ineffective assistance of counsel. The defendant argues that trial counsel was ineffective, for three reasons: failure to object to the detective's expert testimony, failure to object to the testimony of an FBI agent, and failure to seek a mistrial after the admission of certain unfairly prejudicial testimony. We evaluate those arguments under the familiar standard of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), keeping in mind that "[a] strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was 'manifestly unreasonable' when made." Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978). Also, "the preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial." Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). "[A]n ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions . . . ." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002).
The defendant also refers to trial counsel's "failure . . . to recognize the legal principle underlying the admission of co-conspirator statements," but does not identify any resulting prejudice. Additionally, the defendant's brief includes a single sentence mentioning trial counsel's failure to object on hearsay grounds to a statement made by another FBI witness. That is insufficient to rise to the level of appellate argument, and thus we decline to consider the point further. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975). See also Selmark Assocs., Inc. v. Ehrlich, 467 Mass. 525, 540 (2014).
As for counsel's failure to object to the detective's testimony, we have already determined, supra, that the testimony was not inadmissible on the grounds the defendant now asserts. It follows that counsel was not ineffective for failure to object on those grounds.
As for counsel's failure to object to the testimony of an FBI agent, counsel informed the judge at sidebar, without elaboration, that he had "strategic reasons" for not doing so. Absent anything in the record explaining those reasons, the defendant has not shown that counsel's decisions were manifestly unreasonable when made.
The defendant's final ineffective assistance claim concerns the FBI agent's testimony, without objection, that two men who had been in the car where the firearm was found had entered a plea agreement in Federal court, pursuant to which the firearm was forfeited and destroyed. Out of the jury's hearing, defense counsel explained that the remark had taken him by surprise, and that his lack of immediate objection was due to his desire not to "emphasiz[e] it in front of the jury." The judge indicated that he would not be inclined to grant any motion for a mistrial, but that he would, at the defendant's request, give a curative instruction. Defense counsel was given the weekend to discuss the matter with the defendant. When the trial resumed, counsel reported that, after his discussions with the defendant, they had decided to request a curative instruction rather than move for a mistrial. The judge read the curative instruction, which was thorough and emphatic in telling the jury why they should disregard the testimony, and defense counsel found it acceptable. On appeal, the defendant identifies no reason, nor can we see any on this record, why counsel's handling of the matter should be considered in any way (let alone manifestly) unreasonable. The ineffective assistance claim therefore fails.
The prosecutor stated that she had instructed the agent not to refer to the Federal pleas; both the judge and defense counsel indicated that they credited her statement.
4. Commonwealth's closing argument. The defendant argues that the prosecutor's closing argument was improper in various respects. As there was no contemporaneous objection, we review for whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Kozec, 399 Mass. 514, 518 n.8 (1987).
The defendant first challenges the prosecutor's reference to the defendant as a "season[ed] Latin King." But the defendant fails to offer any argument as to why this remark was improper. He does not claim that it had no basis in the evidence or was otherwise unfair.
Another witness testified to having been a Latin Kings member for twenty-three years; that the defendant was the founder and "Inca," or "first," of a Boston-based Latin Kings chapter; and that he had met the defendants "[]on the streets" about twenty-three years earlier.
The defendant next challenges the prosecutor's statement, "Everyone knows there's no conversation at the end of a gun barrel." Again, the defendant offers no argument was to why this was improper. Viewed in context, the remark was a response to defense counsel's closing, in which he argued that the defendant's plan was to "go to Lynn to talk, and to confront [the renegade gang members], not to kill or to invade or to assault and batter." The prosecutor argued in reply that the defendant and others had discussed bringing numerous firearms, and she asked the jury, "Why would they need more guns to have a polite conversation? Everyone knows there's no conversation at the end of a gun barrel." The defendant does not explain how this invitation to the jury to rely on their common sense was unfairly prejudicial.
Finally, the defendant claims that the prosecutor improperly vouched for Ecko's testimony, by saying it was "entirely credible." Viewing the remark in the context of the arguments as a whole, we are not persuaded. Defense counsel's closing vigorously attacked Ecko's credibility. In response, throughout her argument, the prosecutor suggested several specific reasons that the jury should believe Ecko. She then argued that the defendant "needs you to ignore the testimony of Ecko, which I suggest was entirely credible and is entirely backed up by the testimony of [the other gang member who testified], and the recordings which you simply can't change."
The defendant's brief also suggests that the prosecutor improperly vouched for Ecko's credibility during a lengthy passage of her closing that reviewed what Ecko stood to gain and lose from serving as an informant. But the defendant identifies no particular remark in that passage as constituting vouching.
Although the thought might have been expressed more artfully, the prosecutor was not stating any personal belief in Ecko's credibility so much as suggesting why the jury should believe him. See Commonwealth v. Mitchell, 428 Mass. 852, 857 (1999). Moreover, "the prosecutor may make a fair response to an attack on the credibility of a government witness." Commonwealth v. Senior, 454 Mass. 12, 17 (2009), quoting Commonwealth v. Chavis, 415 Mass. 703, 713 (1993). The judge instructed the jury that the closing arguments were not evidence and that they as jurors were the sole judge of the credibility of witnesses. After considering the prosecutor's comment "in the context of the entire argument" and considering "whether the judge's instructions mitigated [any] error," Commonwealth v. Santiago, 425 Mass. 491, 500 (1997), S.C., 427 Mass. 298 (1998) and 428 Mass. 39, cert. denied, 525 U.S. 1003 (1998), we conclude that any error did not create a substantial risk of a miscarriage of justice.
5. Habitual offender indictments. We reject, for two reasons, the defendant's claim that his pretrial motion to dismiss the habitual criminal portions of the indictments was erroneously denied. First, the defendant's motion to dismiss the indictments, based on Commonwealth v. McCarthy, 385 Mass. 160 (1982), did not raise any issue concerning his habitual criminal status; rather, the motion addressed only the primary offenses for which he had been indicted. Second, there was ample evidence before the grand jury to establish probable cause that the defendant's prior convictions resulted from separate criminal incidents or episodes. See Commonwealth v. Garvey, 477 Mass. 59, 68 (2017). We note, finally, that after being convicted of the primary offenses in the present case, the defendant waived his right to a trial and stipulated to being an habitual criminal.
The grand jury had before it copies of indictments for armed robbery, alleged to have been committed on January 18, 2001, and illegal possession of a sawed-off shotgun, alleged to have been committed on July 23, 2003. The accompanying docket sheets showed that each charge resulted in a conviction and ultimately a sentence of incarceration for not less than three years. See Commonwealth v. Youngworth, 48 Mass. App. Ct. 249, 250-253 (1999).
Judgments affirmed.
By the Court (Desmond, Sacks & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 8, 2019.