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Commonwealth v. Cary C.

Appeals Court of Massachusetts.
Jun 7, 2012
81 Mass. App. Ct. 1141 (Mass. App. Ct. 2012)

Opinion

No. 11–P–1103.

2012-06-7

COMMONWEALTH v. CARY C., a juvenile.


By the Court (TRAINOR, SMITH & SULLIVAN, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, a juvenile, was indicted by a grand jury under the youthful offender statute, G.L. c. 119, § 54, for one count of armed assault with intent to murder, G.L. c. 265, § 18( b ), and four counts of assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A( b ). After a jury trial (in which he was tried separately from his codefendants), he was acquitted of the charge of armed assault with intent to murder. He was convicted, as a youthful offender, of the remaining counts, and was committed to the Department of Youth Services until age twenty-one. On appeal, the defendant claims that the admission of evidence concerning his gang affiliation was prejudicial error. We affirm.

Before trial, the defendant brought a motion in limine to exclude evidence that he was a member of the Latin Kings. The prosecution argued that there had been a fight between the Latin Kings and the Crips the night before the attack on the victim, and that the attack on the victim, who was a cousin of a member of the Crips, was in retaliation for that fight. The prosecution sought to introduce evidence that the defendant had told the victim that he was a member of the Latin Kings, and that at the time of the stabbing the defendant was wearing a Bruins jersey, whose colors were the same colors as the Latin Kings.

At the time that the motion was heard, the prosecution represented to the motion judge, who was also the trial judge, that the defendant had participated directly in the fight. The judge denied the motion in limine. The prosecutor subsequently corrected his statement and told the judge, before trial or opening statements, that the defendant had not been a participant in the fight. The judge admitted the evidence at trial over objection. The admission of this evidence was committed to the sound discretion of the judge. We review for “palpable error.” Commonwealth v. Rosario, 460 Mass. 181, 193 (2011). The Supreme Judicial Court has repeatedly “held that evidence of gang affiliation is admissible to show motive or joint venture, and [has] given deference to the judges' determinations in that regard.” Ibid., quoting from Commonwealth v. Swafford, 441 Mass. 329, 332 (2004). Here, evidence that the defendant was a member of the Latin Kings was clearly relevant to the Commonwealth's theory of motive, that the defendant participated in the attack in retaliation for the altercation the night before between the Latin Kings and the Crips. That the defendant did not participate in the fight himself is not dispositive of the issue of motive. See Commonwealth v. Rosario, supra (high-ranking gang member ordered retaliatory action). See also Commonwealth v. Maldonado, 429 Mass. 502, 504–505 (1999) (gang membership “essential” to understanding motivation behind the crimes); Commonwealth v. Correa, 437 Mass. 197, 201 (2002) (murder in the first degree conviction upheld where evidence of motive was inferable from rival gang membership).

At trial the victim testified that he spoke to the defendant and his friend after school shortly before the attack. The friend had a black eye and told the victim that one of the victim's “Crip buddies” was responsible. The victim tried to persuade the defendant and his friend that he was not a member of the Crips. The victim further testified that after the conversation was over and he was walking away, he felt a blow from behind, but that by the time he turned he saw only the defendant's brother, who was slashing him with what appeared to be a “box cutter” or similar weapon. The victim's girlfriend, who was with the victim at the time, testified that the defendant stabbed the victim from behind, and then gave the weapon to his brother, who continued to slash the victim. As the victim fled, a third brother emerged from the alley and ran towards him. At the time of the defendant's arrest, the three brothers were together in an apartment, there was blood on the floor, and the black and gold jersey was found soaking in bleach in a sink. The victim's girlfriend identified the defendant as one of the people who stabbed the victim, stating that she was “one hundred percent sure” that the defendant struck the first blow.

The theory of the defense was that the defendant was not there when the victim was attacked, and that even if he was, he had no intent to kill. The defendant argues that the gang affiliation evidence was the “glue” used to prove the Commonwealth's theory of joint venture, that is, that the defendant shared his brother's intent to harm the victim and knowingly participated in the crime with him. See Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009). Here, the jury could have found, based on the testimony of the victim's girlfriend, that the attack was orchestrated, as evidenced by the handoff of the weapon, the continued effort to harm the victim, and the third brother's appearance from the alley. The joint venture was independently proven by evidence of conduct; there was no evidence concerning gang affiliation of the other brothers.

The defendant also argues that the testimony concerning the defendant's gang membership “stripped away” any need to assess the credibility of the victim's girlfriend, whose testimony placed him at the scene of the attack. The jury's acquittal of the defendant on the most serious charge suggests that the jury did carefully weigh the evidence and consider the credibility of all concerned.

Furthermore, the judge took measured steps to confine the jury's consideration of the evidence and ameliorate any prejudicial impact. During jury selection the judge conducted individual questioning of the jurors regarding gang-related matters and as a result, struck two jurors from the pool. At the time the evidence of gang affiliation was introduced the judge gave the jury a limiting instruction that the evidence was not to be considered for its truth, but instead as evidence of motive, opportunity, intent, absence of mistake, or joint venture. See Commonwealth v. Swafford, supra at 333. The judge also reiterated in her final instructions that the jury could reject the evidence of the defendant's membership in a group, but if accepted, it could not be used as evidence that the defendant committed the crime charged or has a bad character. The judge weighed the relevance of the testimony, and “took care to minimize the prejudicial nature of the evidence.” Commonwealth v. Correa, supra. The fact that the jury found the defendant not guilty of the most serious crime charged suggests that the jury were attentive to the instructions and were not prejudiced. There was no abuse of discretion, no palpable error.

Judgments affirmed.


Summaries of

Commonwealth v. Cary C.

Appeals Court of Massachusetts.
Jun 7, 2012
81 Mass. App. Ct. 1141 (Mass. App. Ct. 2012)
Case details for

Commonwealth v. Cary C.

Case Details

Full title:COMMONWEALTH v. CARY C., a juvenile.

Court:Appeals Court of Massachusetts.

Date published: Jun 7, 2012

Citations

81 Mass. App. Ct. 1141 (Mass. App. Ct. 2012)
968 N.E.2d 941