Opinion
13-P-1029
06-19-2015
COMMONWEALTH v. BRIAN RIVERA (and nine companion cases).
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 codefendants were convicted by a jury of armed assault with intent to murder, kidnapping, armed carjacking, armed robbery, and assault and battery by means of a dangerous weapon. Both defendants appealed from their convictions. In his appeal, Rivera asserts that the judge displayed racial bias during jury selection and that there was insufficient evidence to sustain his conviction for armed assault with intent to murder. In Espinosa's appeal, he challenges the judge's jury instruction on eyewitness identification and certain statements made in the prosecutor's closing argument. We affirm.
Background. We recite the facts as the jury could have found them at trial, reserving recitation of additional facts for our discussion. In December of 2008, the victim was working as a food delivery driver in the city of Lynn. At approximately 10:20 P.M., Rivera, who was standing with Espinosa, stopped the victim and asked if he would give them a ride. The victim agreed. Rivera sat in the front seat while Espinosa sat in the back seat. During the ride, Rivera showed the victim a gun in his waistband and directed him to drive to various locations in Lynn and Swampscott, ultimately leading him to a location in Swampscott near where Rivera's friend lived. When the victim stopped the car, Espinosa grabbed him around the neck, began beating him in the face with his gun and pulled him into the back seat. As Rivera moved into the driver's seat, the victim heard both defendants say they were going to kill him and throw him in the lake. During the struggle, the victim was able to open the back door of the car, but Rivera got out of the car and used his gun to hit the victim. Rivera then said, while pointing the gun at the victim's head, "I'm going to kill you because you stained my shirt." Both defendants then robbed the victim of approximately $1,400 and his cell phone. The victim was thereafter able to escape from the car and began running away, at which point he heard three gunshots. When he turned around he saw Espinosa had a gun pointed at him. The victim identified both defendants as his attackers from photo arrays presented by the investigating officers.
Rivera's appeal. a. Bias in jury selection process. Rivera contends that the judge displayed racial bias in refusing to ask the venire a specific question regarding the propensity of Hispanic men to commit crime. The defendant asserts that the judge's question to defense counsel during the discussion of the proposed voir dire question displayed the judge's bias. The record provided on appeal does not support this claim. To the contrary, the record is clear that the judge asked this question to understand defense counsel's request. Rather than showing any bias, this question, coupled with his later comments explaining his reluctance to ask the question, demonstrates the judge's careful consideration of the issue raised by defense counsel, and makes evident that the judge was thorough and conscientious in his questioning of potential jurors. If any bias were to be inferred from the colloquy, it was provided by defense counsel while the judge, by contrast, declined to ask a question that would suggest a predilection for criminal activity based on ethnicity. There was no error.
The requested question, agreed to by all parties was "whether people of Hispanic ancestry are more likely to commit crime than other people."
The challenged comments came in response to defense counsel's argument in support of asking the requested question. The colloquy proceeded, in part, as follows, "'[Defense Counsel]: Your Honor, I think crimes of this nature are more likely to be committed by people of a lower economic stratus (sic) than other people, and it's an unfortunate, but I think true reality of our society, that that low stratum, economic stratum, is occupied by minorities, including Latinos, or Hispanics, or Puerto Rican people. And I think you just need to spend a couple of days in the first session, and note the demographics of the defense -- of the defendant population that goes through the first session." "The Court: That doesn't have to be the argument then, because if a person answered yes to that question, from your perspective, the person is acknowledging reality. Does that make the juror a biased juror, because the juror has a sense, which you say is accurate, as to, at least statistically, who is more likely to commit crimes?"
In explaining his decision to ask the question in a different way, the judge said, in part, "To me, [the requested question] puts into the minds of the jurors an issue that they might not otherwise be considering. The very question suggests that maybe they do, or maybe you should think that they do commit crime more often than others."
We should not need to emphasize that accusing a judge of exercising racial bias is a serious charge. Doing so here, where the record demonstrates quite the opposite, is gratuitous and unjustified.
To the extent the defendant asserts that the judge's failure to ask the requested question was error, this argument also has no merit. "[A] judge enjoys the discretion to determine which question or questions will best elicit information from a juror that will allow the judge to evaluate whether the juror is truly fair and impartial." Commonwealth v. Entwistle, 463 Mass. 205, 224 (2012) (citations omitted). See also Commonwealth v. Stack, 49 Mass. App. Ct. 227, 240 (2000). In addition to the required statutory voir dire questions to the entire venire, the judge asked a variation of the question requested by defense counsel during individual voir dire of potential jurors. The judge was not required to ask the additional question in the first instance and, further, was not required to ask the question using the precise language requested by counsel. Commonwealth v. Johnson, 54 Mass. App. Ct. 224, 230-231 (2002). There was no abuse of discretion.
The judge asked during individual voir dire: "In this case, all of the alleged participants are of Hispanic ancestry. Is there anything about that circumstance that would affect your ability to be fair and impartial?"
b. Sufficiency of the evidence. Rivera asserts that there was insufficient evidence to support his conviction for armed assault with intent to murder, either as a principal or under a theory of joint venture. We review to determine whether any rational juror, considering the evidence in the light most favorable to the Commonwealth, could have found the elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The Commonwealth was required to prove beyond a reasonable doubt that "that the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense." Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). In this case, the Commonwealth was required to prove that the defendant had knowledge of the gun used in the crime and had the specific intent to kill the victim. Commonwealth v. Charles, 57 Mass. App. Ct. 595, 597 (2003). Based on the testimony of the victim regarding the defendant's statements, specifically that Rivera suggested they murder the victim and throw him in the lake and that he was going to kill him, that Rivera drove the car to an area close to a pond, and that both defendants brutally beat the victim with the ends of their handguns, the jury was entitled to find the required intent to convict the defendant of assault with intent to murder. See, e.g., Commonwealth v. Bolling, 462 Mass. 440, 453-554 (2012). The jury were not required to draw the inference pressed by the defendant at trial that the defendants shot at the victim to scare him as he escaped. We affirm.
The defendant moved for a required finding of not guilty at the close of the Commonwealth's case and again at the close of the evidence.
Espinosa's appeal. a. Jury instructions. Espinosa challenges the judge's instructions to the jury on the proper use of eyewitness identification. The defendant requested a modification of the then-customary Rodriguez instruction, which the judge denied. Commonwealth v. Rodriguez, 378 Mass. 296, 301-302, 310-311 (1979). On appeal, the defendant's brief argued that the eyewitness jury instruction should be "updated" to provide more information to jurors regarding the accuracy of eyewitness identification. After briefs were submitted in this case, the Supreme Judicial Court decided Gomes, which in fact adopted many of the changes requested by the defendant in this case. However, as explicitly stated in Gomes, those changes only apply prospectively. Commonwealth v. Gomes, 470 Mass. 352, 354 (2015). Therefore, we must decide whether the judge abused his discretion in failing to give the defendant's requested charge. Id. at 359-360, citing Commonwealth v. Hyatt, 419 Mass. 815, 818-819 (1995). As in Gomes, failing to give the requested instruction where the defendant presented no expert testimony or scholarly articles on the topic to the judge was not an abuse of discretion. Ibid.
"The defendant here did not provide the judge with any expert testimony, scholarly articles, or treatises that would reasonably have enabled the judge to determine whether the principles in the defendant's proposed instruction were "so generally accepted" that it would be appropriate to instruct the jury regarding them. Where the defendant failed to furnish such information, and where there was an instruction approved by this court that was not erroneous but, at worst, inadequate and incomplete, the judge did not abuse his discretion in denying the proffered instruction and charging the jury in accordance with the Rodriguez instruction." Gomes, supra (citations omitted).
b. Prosecutor's closing argument. Espinosa challenges portions of the Commonwealth's closing argument, asserting that the prosecutor improperly appealed to the juror's sympathies when describing the victim and his family. The defendant did not object, so we therefore review for a substantial risk of a miscarriage of justice. Commonwealth v. Joyner, 467 Mass. 176, 188 (2014). Both defendants proceeded on a theory of misidentification at trial. Rivera suggested in his cross-examination of the victim's employer and in closing argument that the victim was dealing drugs from his vehicle and that he was attacked as the result of that activity. Rivera's counsel further suggested that the victim identified the defendants as his attackers because he did not want to implicate his true attackers, inferentially people connected to his suggested drug dealing. Viewed in the context of the prosecutor's entire closing argument and the closing arguments on behalf of Rivera, the challenged portions of the closing arguments were a fair reply to defense counsel's suggestions. Commonwealth v. Flint, 81 Mass. App. Ct. 794, 807 (2012). See Commonwealth v. Smith, 404 Mass. 1, 6-7 (1989). Moreover, any potential error was cured by the judge's instructions that closing arguments are not evidence and to decide the case on the evidence presented, not any sympathy toward either party. Commonwealth v. Molle, 56 Mass. App. Ct. 621, 631 (2002).
The defendant challenges the following statements: "He had a wife. He had children. Miguel Segura was a hard-working man. He worked [forty-eight] to [sixty] hours a week just at the restaurant, and that doesn't include the weekends that he worked at the auto body shop. His wife, two degrees from college, had a job at the airport until the company went out of business. These are people trying to provide for their family and their kids. . . . Miguel Segura was working for [ten] hours on that day when he picked two people up to take them out of the freezing cold and give them a ride. He ended up praying to God, thinking those were the last moments of his life as he was held hostage in his own car."
Espinosa suggested that the victim never had an opportunity to see his face and therefore had no way to identify him as his attacker.
Judgments affirmed.
By the Court (Grainger, Hanlon & Carhart, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: June 19, 2015.