Opinion
17-P-1517
03-27-2019
COMMONWEALTH v. JEREMY ALICEA.
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
Following a jury trial, the defendant, Jeremy Alicea, was found guilty of armed assault with intent to murder, attempted assault and battery with a firearm, carrying a firearm without a license, carrying a loaded firearm without a license, and discharge of a firearm within 500 feet of a building. On appeal, he argues that the judge erred in refusing to provide a voluntary intoxication instruction, that there was insufficient evidence of specific intent, and that the prosecutor made improper remarks during closing argument. We affirm.
Background. At approximately 5:30 A.M., Alicea entered a BP gas station convenience store in Lowell with a group of individuals, purchased a compact disc (C.D.) from the clerk, and exchanged the C.D. a short time later. The clerk did not notice anything out of the ordinary with the group and described Alicea as polite. Alicea and his group left the store about twenty minutes later. At approximately 6:15 A.M., the clerk heard a loud bang and people yelling outside and observed three or four cars pulling out of the parking lot. After the cars left, the clerk went outside and saw broken glass and a shell casing on the ground in the parking lot.
The 911 call for shootings at the BP gas station came in around 6:20 A.M.
A videotape recording (video) from the BP gas station that depicts the shooting was admitted as evidence by the Commonwealth. In the video, Alicea can be observed sitting in the driver's seat of a Dodge Durango that is parked right outside the entrance to the convenience store. About five other vehicles are also parked in the lot. In the video, Alicea remains in the Durango for several minutes, drinking from a green bottle, and talking with an individual who is standing outside of his car. The individuals in the parking lot all appear to know one another. The video shows a red minivan pulling into the gas station and parking one car down from Alicea. An individual is seen conversing with the driver of the minivan and Alicea is seen exiting his vehicle, holding a gun in his right hand. Alicea is then seen walking around the back of the Durango and approaching the back of the minivan. The minivan begins to back out of the parking space, and Alicea is observed raising the gun and shooting into the minivan's driver's side window. The minivan is shown quickly backing out of the gas station as Alicea raises the gun again and points it at the minivan, but does not shoot.
After locating both vehicles, police observed that the minivan's driver's side window was smashed. There was a bullet hole in the driver's seat, and a bullet was retrieved from the rear passenger seat. An unopened Heineken bottle was retrieved from the Durango. No empty bottles were retrieved from the Durango.
Analysis. 1. Intoxication instruction. Alicea first argues that the judge's denial of his request for an instruction on voluntary intoxication constituted error warranting a new trial. Because the defendant objected, we review for prejudicial error. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).
"Where an offense requires proof of specific intent and there is evidence 'tending to show' that the accused may have been intoxicated at the time of the offense, the judge, if requested, must instruct the jury to consider the defendant's intoxication in determining whether the Commonwealth has proved that specific intent beyond a reasonable doubt." Commonwealth v. Anderson, 58 Mass. App. Ct. 117, 120 (2003), quoting Commonwealth v. Traylor, 43 Mass. App. Ct. 239, 243-244 (1997). An instruction regarding a defendant's voluntary intoxication is only required "where there is evidence of 'debilitating intoxication' that could support a reasonable doubt as to a defendant's ability to form the requisite criminal intent." Commonwealth v. Lennon, 463 Mass. 520, 523 (2012).
Here, evidence was lacking that Alicea was intoxicated at the time of the shooting. Alicea contends that his girlfriend's testimony provided the necessary evidence to support his request for the instruction on voluntary intoxication. Her testimony, however, referred to Alicea's intoxication the night before the shooting and the morning after. Specifically, she testified that Alicea appeared intoxicated around 10:30-11:00 P.M. the night before the shooting and that she did not see him again until 9:00 A.M. the following morning, where he also appeared intoxicated. Where the shooting occurred around 6:00 A.M., this testimony is not sufficient to show Alicea's intoxication at the time of the crime. See Commonwealth v. Brown, 449 Mass. 747, 769 (2007) ("none of [the] evidence . . . admitted at trial . . . demonstrated how much or for how long [the defendant] had been drinking on the night of the shootings or what effect any alcohol that he may have ingested had on him").
There was no evidence of "debilitating intoxication" at the time of the crime. The BP clerk, who directly interacted with Alicea prior to the shooting, testified that there was nothing out of the ordinary with him. On cross-examination, the clerk specifically testified that Alicea did not show signs of intoxication, nor was there a smell of alcohol. Further, the video portraying the shooting shows Alicea able to walk steadily, aim his gun directly at the moving minivan, shoot at the driver's side, and aim his gun for a second time. See Anderson, 58 Mass. App. Ct. at 121-122 (intoxication instruction not required where defendant had no difficulty standing or walking, "had his faculties about him, and demonstrated clear cognitive processing of information"). At most, the evidence showed that Alicea was drinking from a green bottle that may have contained alcohol just prior to the time of the shooting. No empty beer or other bottles that may have contained alcohol were retrieved from the Durango. See Commonwealth v. Chaleumphong, 434 Mass. 70, 78 (2001) (no error in refusing to give voluntary intoxication instruction where "[a]part from evidence that the defendants may have consumed beer and hard liquor prior to the killing, there was no evidence of debilitating intoxication"); Commonwealth v. Doucette, 391 Mass. 443, 455 (1984) (where "[t]he evidence revealed that at most the defendant had consumed a few drinks and three beers through the course of the entire day" an instruction on intoxication was not warranted). Accordingly, the judge did not err in declining to give an intoxication instruction.
The record reflects that the videos were played in the court room during the trial, providing the judge and the jury with the opportunity to view the videos.
2. Sufficiency of the evidence. Alicea next argues that the judge erred in denying his motion for a required finding of not guilty on the armed assault with intent to murder charge because there was insufficient evidence that he had the required specific intent.
When reviewing a denial of a motion for a required finding of not guilty, we assess the evidence in the light most favorable to the Commonwealth to determine whether "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, 319 (1979). See Commonwealth v. Robicheau, 421 Mass. 176, 181 (1995). "Direct evidence of a person's specific intent is not always available, but may be inferred from the facts and circumstances presented." Commonwealth v. Moran, 453 Mass. 880, 885 (2009).
In that light, we conclude there was sufficient evidence of the necessary intent to support Alicea's armed assault with intent to murder conviction. Although Alicea argues that he was not able to take careful aim at the minivan and that his actions, at most, were meant to scare, the jury were presented with evidence establishing otherwise. The jury were presented with evidence that Alicea aimed his gun specifically at the driver of the minivan as the driver was backing the vehicle out of the parking lot. Firing a hand gun at close range while a victim is fleeing, and hitting the driver's seat, clearly demonstrate the necessary intent to kill to support a conviction of armed assault with intent to murder. See, e.g., Commonwealth v. Reaves, 434 Mass. 383, 390 (2001) (ample evidence of intent to kill where at least two shots were fired at reasonably close range at precise group with whom defendant had confrontation earlier that day); Commonwealth v. Gabbidon, 398 Mass. 1, 5-6 (1986) (evidence of firing three shots with semi-automatic rifle into fast-moving car close enough to driver to wound him demonstrated specific intent to kill victim); Commonwealth v. Ennis, 20 Mass. App. Ct. 263, 270 (1985) (inference of specific intent to kill supported where defendant attempted to ambush victim at close range, aiming shot at victim's head). Therefore, the jury could "apply their common experience and decide that the less than mortal wound inflicted on the victim . . . was the consequence of poor marksmanship and that the purpose . . . was to kill the target." Commonwealth v. Sylvester, 35 Mass. App. Ct. 906, 907 (1993). The judge properly denied Alicea's motion for a required finding of not guilty.
This crime requires proof that Alicea "committed an assault, that he was armed with a dangerous weapon, and [that] he had the specific intent of murdering the victim in assaulting him." Commonwealth v. Bolling, 462 Mass. 440, 453 (2012), quoting Commonwealth v. Lopez, 383 Mass. 497, 500 (1981). The crime of assault with intent to commit murder requires proof of malice and the specific intent to kill. See Commonwealth v. Henson, 394 Mass. 584, 591 (1985).
3. Prosecutor's closing argument. Lastly, Alicea maintains that during closing arguments, the prosecutor argued facts not in evidence, thereby providing the jury with a motive and intent for the shooting. Because there was no objection at trial, "[w]e review these claims for error and, if there was error, for a substantial risk of a miscarriage of justice." Commonwealth v. Rivera, 91 Mass. App. Ct. 796, 801 (2017).
Although "prosecutor[s] may not misstate evidence or refer to facts not in evidence in a closing argument," Commonwealth v. Goddard, 476 Mass. 443, 449 (2017), they are entitled "to marshal the evidence and suggest inferences that the jury may draw from it." Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). Here, the prosecutor properly argued that based on the video, one can see that the individuals in the parking lot were arguing, thereby allowing the inference that there was "a huge issue between [the victim] and these three individuals here." The video also shows the victim briefly opening his car door, conversing with the individuals, then getting back in the minivan and driving away erratically moments later. Although Alicea argues that none of the witnesses testified regarding a problem between him and the victim, a view of the video properly leads to that inference. Accordingly, any statement made by the Commonwealth regarding a dispute between Alicea and the victim was proper.
Alicea further takes issue with the statement that he watched the victim for forty seconds prior to the shooting, improperly arguing that he planned the shooting. This was also a fair inference to make, and the jury had this video to view for themselves and were able to draw their own inferences from it. Even if the prosecutor's argument went too far, we are confident that it did not have an impact on the verdict. "Closing argument is argument, not evidence, and jurors are presumed to be capable of discounting excessive claims." Commonwealth v. Rakes, 478 Mass. 22, 47 (2017). Moreover, the judge in this case directly instructed the jurors not to credit statements made by counsel if such statements did not coincide with the jurors' recollection of the evidence, and that closing arguments are not evidence. See Commonwealth v. Kozec, 399 Mass. 514, 517 (1987). The judgments are therefore affirmed.
So ordered.
By the Court (Hanlon, Lemire & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 27, 2019.