Opinion
13-P-562
06-17-2015
COMMONWEALTH v. ANDRE BREA (and four 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 defendants, Andre Brea and Ruben Sanchez, raise various issues on appeal from their convictions following a trial by jury. For the reasons that follow, we affirm.
Both defendants were convicted of unlawful possession of a firearm and carrying a loaded firearm. Sanchez was also convicted of second-degree murder.
1. Motion to suppress. Brea first argues that the judge erred in denying his motion to suppress evidence. The motion judge concluded that the officers had a reasonable basis upon which to stop the vehicle for a threshold inquiry and, subsequently, probable cause to arrest and search the defendants incident to the arrest. The judge's findings of fact find support in the evidence presented at the hearing, and we agree that these findings support his conclusions of law. See Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
As the judge concluded, the combination of factors known by the officer at the time of the stop was sufficient to establish reasonable suspicion that this was the vehicle observed at the scene of the shooting. See Commonwealth v. Lopes, 455 Mass. 147, 157-158 (2009); Commonwealth v. Depina, 456 Mass. 238, 246-247 (2010). In addition, the judge properly considered the circumstances as a whole in determining that the officers had probable cause to arrest the defendants. See Commonwealth v. Kennedy, 426 Mass. 703, 708 (1998).
These factors include the distinctive nature of the vehicle; the time, location, and direction in which the vehicle was traveling after the reported shooting; the small number of vehicles on the road at that time of day; and the fact that the officer observed no other vehicles matching the broadcast description. That the police were looking for suspects of a shooting that had just occurred (and who were likely armed) further supports a conclusion that the officer had reasonable suspicion sufficient to warrant the stop and exit order.
2. Motion to sever. Sanchez first contends that the judge erred in denying his motion to sever. We agree with the motion judge that, unlike in Commonwealth v. Moran, 387 Mass. 644, 658-659 (1982), the defendants' defenses were not "mutually antagonistic and irreconcilable." In fact, as the Commonwealth asserts, Sanchez's codefendants also had a stake in the success of Sanchez's misidentification defense. The Commonwealth alleged that Brea and Miguel Vasquez (see note 1, supra) were joint venturers with Sanchez in the possession of the loaded firearm, and Brea's indictment as an accessory after the fact required the jury to find first that Sanchez was the perpetrator. See Commonwealth v. McAfee, 430 Mass. 483, 486 (1999). Further, there was no Bruton violation (see Bruton v. United States, 391 U.S. 123 [1968]), where the judge gave limiting instructions and the codefendants' statements did not "obviously implicate" Sanchez. Commonwealth v. McAfee, supra at 488 (citation omitted).
The jury were deadlocked on this charge, and the Commonwealth subsequently filed a nolle prosequi of this indictment.
3. Peremptory challenges. Sanchez next contends that the judge erred in permitting one or more of the Commonwealth's peremptory challenges based on the potential jurors' Hispanic ethnicity. "We will accord substantial deference, if supported by the record, to a trial judge's determinations . . . that there was or was not an adequate reason for the challenge. . . . Where, however, the trial judge fails to make a 'meaningful evaluation of the reasons given by the challenging party,' we consider the reasons given 'on the basis of the record and without deference to the trial judge's ruling.'" Commonwealth v. Cavotta, 48 Mass. App. Ct. 636, 638 (2000), quoting from Commonwealth v. Mathews, 31 Mass. App. Ct. 564, 571 (1991), cert. denied sub nom. Mathews v. Rakiey, 504 U.S. 922 (1992).
He appears to take issue with the peremptory challenges of prospective jurors 26 and 50.
In the present case, although he did not find a pattern of discriminatory intent, the judge inquired into the prosecutor's rationale for challenging the first of the prospective jurors in question, and the prosecutor independently offered an explanation for the second. Following this second challenge, the judge concluded that the prosecutor's race-neutral reasons -- age and ability to digest information -- were genuine and adequate.
The judge's colloquy with counsel was sufficient to evaluate meaningfully the prosecutor's proffered reasons for the challenges, and we see no reason to disturb his rulings, which are supported by the record. Contrast Commonwealth v. Benoit, 452 Mass. 212, 222 (2008). Furthermore, at the time of the second challenge in question, at least five jurors had been seated, including two who appeared to be of Hispanic ethnicity. The judge noted that the final jury appeared to be comprised of four persons who were African-American, three who were Hispanic, seven who were Caucasian, and one who was Egyptian. Cf. Commonwealth v. LeClair, 429 Mass. 313, 321 (1999).
For the same reasons, we also discern no merit in Sanchez's claim that the judge applied an incorrect standard in assessing the validity of the prosecutor's reasons for exercising the challenges. Even if the judge made a reference to an incorrect standard, the error was harmless because the record demonstrates that he applied the correct standard in conducting an independent evaluation of the adequacy and genuineness of the prosecutor's proffered reasons.
4. Appealing to sympathies. Sanchez also argues that the trial judge erroneously admitted emotionally charged evidence that was unfairly prejudicial and had minimal probative value. This claim is without merit. "The weighing of the prejudicial effect and probative value of evidence is within the sound discretion of the trial judge, the exercise of which we will not overturn unless we find palpable error." Commonwealth v. Bonds, 445 Mass. 821, 831 (2006).
First, one unintentional reference to the victim's display of her ultrasound photograph was not error, particularly where the parties addressed the reference at sidebar and the pregnancy was not mentioned again at trial. Contrast Commonwealth v. Santiago, 425 Mass. 491, 495 (1997) (error where "prosecutor not only unnecessarily repeated the victim's age and the fact of her pregnancy throughout his arguments, he suggested that these facts were issues the jury should consider in their deliberations"). Further, the photograph and testimony regarding the scene, including the description of the victim's death, were relevant and probative.
A juror did seek to ask the medical examiner whether the victim had been pregnant at the time of her death, but the judge declined to ask the question.
Both defendants contend that the prosecutor's closing argument improperly appealed to the sympathies of the jurors. We disagree; the prosecutor summarized the evidence as it was. See Commonwealth v. Pontes, 402 Mass. 311, 316-317 (1988); Commonwealth v. Rodriguez, 437 Mass. 554, 567 (2002). Moreover, the judge properly advised the jurors that they were to decide the case based on their views of the evidence, not on any emotion or sympathies. See Commonwealth v. Rock, 429 Mass. 609, 616 (1999).
Brea also argues that the prosecutor mischaracterized evidence of Brea's involvement and that the judge misstated the law in response to his objection regarding the closing argument. Even if the challenged statements were error (which we do not conclude), the judge's instructions would have cured any such error and Brea would have suffered no prejudice.
5. Other claims. We discern no merit in the defendants' remaining claims, on which we comment briefly. The single reference on redirect examination to a witness's discussion of perjury was properly admitted, see Commonwealth v. Arriaga, 438 Mass. 556, 579 (2003), and the cases Sanchez cites for this argument are inapposite. For substantially the reasons set forth in the Commonwealth's brief at pages 43 to 53, Brea's convictions of possession of a firearm and carrying a loaded firearm were supported by sufficient evidence and were not duplicative, and Brea received a lawful sentence.
Judgments affirmed.
By the Court (Cypher, Kafker & Green, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 17, 2015.