Opinion
21-P-419
04-28-2022
COMMONWEALTH v. Joshua CHEVEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Joshua Chevez, and two others were indicted for murder in the first degree. Chevez and one of the codefendants, Juan Castillo, were tried together in the Superior Court; the remaining codefendant, Joshua Torres, was tried separately. The jury convicted Chevez of murder in the second degree. We consider here Chevez's consolidated appeals from his conviction and the order denying his motion for new trial. We are not persuaded that the judge erred in failing to instruct the jury on voluntary manslaughter or that he abused his discretion in the admission of evidence; although we view the prosecution in this case to have overstepped permissible bounds at several points during the trial, we conclude that doing so did not create a substantial risk of a miscarriage of justice. Accordingly, we affirm Chevez's conviction. Because Chevez has failed to show that trial counsel was ineffective, we likewise affirm the denial of his motion for new trial on that ground.
Castillo was also indicted for murder (as a joint venturer with Chevez) and for intimidation of a witness. The jury acquitted him of murder but convicted him of intimidation.
Background. We summarize the relevant trial evidence, reserving certain points for later discussion.
As of early August 2014, Joshua Urena had attacked several brothers in the Torres family, possibly motivated by conflicting gang affiliations. In one of those altercations, Urena shot Joel Torres in the legs. At least one of Joel's brothers, Jeremiah, sought to retaliate.
For clarity, we refer to the Torres brothers individually by their first names. Urena was accused of having stabbed one of the brothers and, separately, hit another of the brothers in the face with a bottle, scarring him.
Between the night of August 16, 2014, and the early morning hours of August 17, 2014, the defendant, Jeremiah, Joel, and Jeremy Maldonado learned that Urena was at a party at the Stadium Projects in Lawrence (Stadium). The men were "hyped [up]" when they learned Urena's whereabouts and went together "in a rush" for the Stadium. Yashera Santiago, Jeremiah's girlfriend at the time of the shooting, testified that the defendant left for the Stadium with a black handgun in his waistband.
At approximately 2 A.M. , the three men arrived together at the Stadium, where partygoers had spilled into the building's courtyard. The men wore hoodies or hats obscuring their faces, but several witnesses testified that Jeremiah was part of the trio and greeted several people as he arrived, including Castillo, who was sitting at the entrance to the courtyard and pointed Jeremiah inward to the party. Two of the men walked toward the center of the courtyard and began shooting. To the extent that the percipient witnesses were able to identify the shooters, the evidence was conflicting. Johnny Sanchez, who had been with Urena when Urena shot Joel Torres, was standing in the courtyard; he was not shot, but Mark Trussell, a partygoer with no connection to the Torres brothers or Urena, was standing within six feet of Sanchez and was shot in the back of the head.
Ballistics testing of shell casings found in the courtyard indicated that at least two different firearms were used in the course of the shooting. No guns were ever found.
The two shooters and the other man with whom they had arrived ran; the partygoers scattered, most without calling 911 or aiding the victim. Trussell was conscious after being shot; one of the people at the party, Anthony Rubirosa, made a video recording of the struggling victim on his cell phone. Trussell died several days later as a result of the gunshot to his head.
At about 2 or 3 A.M. , the defendant, Jeremiah, and Maldonado arrived at Brenda Ruiz's apartment. Ruiz testified that they appeared "devastated," and that she heard one of the men say, "Capo, you fucked up."
There was testimony that "Capo" was a nickname for the defendant.
Castillo, who had directed the men to the courtyard upon their arrival, left by car to attend another party at Howard Street. There was evidence that en route, Castillo threw a gun out the car's window and into the river. At the Howard Street party, Castillo told other guests that he had "set [the victim] up"; that he had "planned a hit," but that "he got the wrong person"; and aligned himself with the Torres brothers, indicating that he set up the shooting to obtain their respect. Rubirosa, who had also gone to the Howard Street party, showed the recording of the victim to other guests. Castillo was acting "happy" and as if "he wasn't bothered by [the video footage]."
Castillo reportedly told various witnesses that he "holds down [the Torres] brothers," "rides out for them," and that he had to "earn his stripes."
At approximately 3 A.M. , the defendant, Jeremiah, and Maldonado arrived at the defendant's apartment, acting scared. According to Tanisha Flores, who was dating the defendant at the time, the defendant went to take a shower, and while in the shower, told her, crying, that "he shot somebody," that "[the victim] was the wrong person," and then vomited in the shower. The following day, the defendant looked through the newspaper for coverage of the incident, and told Flores that "he shot the wrong one," cautioning her not to say anything.
Some sixteen months after the shooting, in December 2015, the defendant told the woman he was dating at the time that he "was leaving the country, and something happened that he could do life for." That woman also testified that during the time they were dating, the defendant kept a gun under his mattress. In the same timeframe, another woman, Stephanie Vega, overheard the defendant on the telephone telling someone that "he had made a mistake."
Although Vega repeatedly denied that the defendant said anything about a shooting, the Commonwealth impeached her testimony on this point.
Discussion. 1. Voluntary manslaughter instruction. At trial, Santiago testified that a month after the shooting, she heard the defendant tell Jeremiah that (in Santiago's words) "he shot thinking somebody was going to go after Jeremiah[.]" On the basis of this testimony, the defendant requested a jury instruction on voluntary manslaughter, arguing that the jury could find the defendant used excessive force in defense of another. See Commonwealth v. Haith, 452 Mass. 409, 415 (2008) (voluntary manslaughter as "an unlawful killing that occurs in circumstances that negate the element of malice"). We review for an abuse of discretion, and, where we find it, for prejudicial error. See Commonwealth v. Odgren, 483 Mass. 41, 46 (2019) (prejudicial error); Commonwealth v. Gomes, 470 Mass. 352, 359 (2015) (abuse of discretion). We discern no error in the judge's ruling, and thus, no prejudice.
As relevant to this appeal, "[a] manslaughter instruction is appropriate where the evidence shows that a defendant used excessive force in an otherwise appropriate exercise of self-defense or defense of another and that death resulted from the use of excessive force." Haith, 452 Mass. at 415. For the defendant to be entitled to an instruction on defense of another, there must be some evidence that (1) "a reasonable person in the [defendant's] position would have believe[d] ... [that] his intervention [was] necessary for the protection of" another, (2) the defendant actually did believe his intervention was necessary for that purpose, and (3) "in the circumstances as that reasonable person would believe them to be, the third person would be justified in using such force to protect himself." Commonwealth v. Brea, 488 Mass. 150, 158 (2021), quoting Commonwealth v. Young, 461 Mass. 198, 208 (2012). Viewed in the light most favorable to the defendant, see Brea, supra at 155, the evidence does not satisfy these requirements.
Even assuming the defendant's statement that "[he] thought somebody was going to go after Jeremiah" to be true, here, as in Brea, "[t]here was no evidence that anyone displayed a gun or other dangerous weapon, that anyone directed any other form of deadly force toward [the defendant] or any other member of the defendant's group, or that the defendant thought he perceived a deadly weapon or deadly force." Brea, 488 Mass. at 158. Accordingly, the evidence showed that neither the defendant's concerns nor the use of deadly force was reasonable in this circumstance, and the defendant was thus not entitled to an instruction on voluntary manslaughter. See id.
Given our conclusion, we need not address the remaining bases for the judge's denial of the instruction.
2. Appeals to juror sympathy. The defendant argues that he was denied a fair trial and due process by the admission of evidence that improperly appealed to the jurors’ sympathy, and by the prosecution's improper arguments. We address these issues in turn.
a. Evidence. i. Standard of review. We review the judge's evidentiary rulings for an abuse of discretion. Other than as we note below, the defendant did not object at trial to the evidence he challenges on appeal, and we review those unpreserved errors only to ensure that they did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Azar, 435 Mass. 675, 686 (2002). As to any objections preserved at trial, our review is for prejudicial error. See Commonwealth v. Nardi, 452 Mass. 379, 396 (2008).
ii. Victim's sister's testimony. The defendant argues that the judge erred in allowing the victim's sister to testify about her brother, including about his personality and family ties. We discern no error.
In a murder case, "the Commonwealth may properly tell the jury ‘something of the person whose life [has] been lost in order to humanize the proceedings,’ " Commonwealth v. Holliday, 450 Mass. 794, 816 (2008), quoting Commonwealth v. Evans, 439 Mass. 184, 195 (2003), and "[a] photograph may be admitted for this purpose." Holliday, supra, citing Commonwealth v. Degro, 432 Mass. 319, 323 (2000). As in Holliday, the testimony at issue here was limited to a few of the more than 1,000 pages of testimony in the trial transcripts and did not impact any part of the defense strategy. See Holliday, supra at 816. The prosecution touched on the evidence in its opening but did not "exploit this testimony's emotional potential" in closing, id., and the judge properly instructed the jury that they were not to decide the case based on prejudice or sympathy. The judge acted within his discretion in admitting the victim's sister's testimony and the photograph of the victim.
iii. Evidence of victim's condition after shooting. Although we view it as a close question, we are ultimately unpersuaded that the admission and use of graphic evidence of the nature of the victim's gunshot wound and the victim's efforts to move and speak after being shot reflected an abuse of discretion. As the Commonwealth contends, the prosecution was entitled to introduce at least some evidence to explain why the victim, who remained conscious, was unable to identify the shooter, and the nature of the victim's injuries was inherently shocking. We consider defense counsel's failure to object to the disputed evidence as some indication that the judge's implicit "weighing of the prejudicial effect and probative value of [the] evidence" (citation omitted) was within the bounds of his discretion. Commonwealth v. Amaral, 482 Mass. 496, 513 (2019). We also consider that the jury convicted the defendant of murder in the second degree, rather than murder in the first degree, for which the defendant was indicted, as an indicator that they were not swept by passion or distracted from the evidence. On the whole, we are not convinced that the admission of evidence of the victim's condition after the shooting created a substantial risk of a miscarriage of justice.
iv. Evidence of callous response to shooting. Next, the defendant contends that the judge abused his discretion in admitting evidence that tended to paint the partygoers as callous; specifically, evidence that Rubirosa and others made a video recording of the victim and played it for the guests at the Howard Street party later in the night, and evidence that neither Rubirosa nor other guests at the Stadium party did anything to help the victim after he was shot. We do not agree. Evidence of the video recording formed a link between the crime and Chevez's codefendant, Castillo, who bragged to those at the Howard Street party about his involvement and who acted happy and unconcerned while the video footage was played. See Commonwealth v. Moore, 480 Mass. 799, 808 (2018) ("Relevant evidence means evidence having ‘any tendency’ to make a consequential fact more or less probable"). Where the video recording itself had been deleted before trial, and for the reasons we discussed supra, we discern no error in the judge's permitting the prosecutor to elicit evidence about what the video depicted.
Even if the evidence were admitted in error, we are not persuaded by the defendant's argument that he suffered prejudice by its admission. Evidence that very few of the attendees at the Stadium party offered help to the victim dovetailed with testimony from witnesses like Santiago and Flores about their fear of retaliation by exposing themselves to being marked as "snitches." The evidence went to the issue of witness credibility by providing an explanation for many of the trial witnesses’ inconsistent statements during the investigation into the shooting and the related prosecutions of the codefendants. See Commonwealth v. Auguste, 418 Mass. 643, 647 (1994) (evidence of witness's fear of testifying relevant to explain witness's lack of candor during police investigation).
v. Gang-related evidence. The defendant argues on appeal that evidence introduced at trial about gangs, including that Urena, the Torres brothers, and Sanchez were members of gangs with certain affiliations and rivalries, was inadmissible. We discern no error. The evidence of gang affiliations and rivalries was relevant to provide motive for not only the shooting itself, but also the events leading up to it, including Urena's repeated attacks on the Torres brothers. See Commonwealth v. Phim, 462 Mass. 470, 477 (2012) (evidence of antagonistic relationship between rival gangs admissible in murder prosecution).
Accordingly, we need not address whether the defendant's objections were preserved by his pretrial motion in limine alone.
The defendant does not dispute the relevance of evidence that Castillo claimed to have participated in the shooting "because he wanted gang stripes."
vi. Bad acts evidence. The defendant filed a motion in limine to preclude as inadmissible bad acts evidence that he possessed a gun when he was arrested sixteen months after the murder. There was no abuse of discretion in this ruling.
The defendant's motion was directed at "prior bad acts." The evidence at issue here took place after the crime for which the defendant was indicted. Nothing turns on this distinction, as the same standards apply to the admissibility of evidence of both prior and subsequent misconduct. Compare Commonwealth v. Centeno, 87 Mass. App. Ct. 564, 566-567 (2015). See also note to Mass. G. Evid. § 404 (b) (2) (2021) ("The same standards govern the admission of [prior and] subsequent bad acts").
The sixteen-month gap between the crime and the possession at issue is not out of step with prior precedent, see Commonwealth v. Corliss, 470 Mass. 443, 450 (2015) (evidence defendant possessed gun more than one year before shooting relevant to show defendant had means to commit crime); compare Commonwealth v. Centeno, 87 Mass. App. Ct. 564, 566-567 (2015) (evidence defendant committed similar sexual assaults two years after charged offenses admissible), and the defendant points to no contrary authority. "[E]vidence of ‘[a] weapon that could have been used in the course of a crime is admissible, in the judge's discretion, even without direct proof that the particular weapon was in fact used in the commission of the crime,’ " Commonwealth v. McGee, 467 Mass. 141, 156 (2014), quoting Commonwealth v. Barbosa, 463 Mass. 116, 122 (2012), and may be used "to show that the defendant had access to or knowledge of firearms." Commonwealth v. Pierre, 486 Mass. 418, 424 (2020), quoting McGee, supra at 157. We agree with the judge that the evidence that the defendant had a gun less than a year and a half after the shooting was relevant to the question whether the defendant had access to guns at the time of the murder.
Given our conclusion, we need not determine whether the judge's ruling also rested on the conclusion that the evidence was admissible to bolster Flores's credibility that the defendant kept a gun under the bed while they were dating.
b. Prosecution's arguments. Though we conclude that the judge's evidentiary rulings were within his discretion, we are less sanguine about the challenged aspects of the Commonwealth's argument. Ultimately, however, we conclude that, whether considered individually or collectively, the prosecution's errors here did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Joyner, 467 Mass. 176, 188-189 (2014).
i. Opening statement. "The proper function of an opening is to outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence" (citation omitted). Commonwealth v. Staines, 441 Mass. 521, 535 (2004). While "enthusiastic rhetoric, strong advocacy, and excusable hyperbole" (citation omitted) are permitted in opening statements, Commonwealth v. Siny Van Tran, 460 Mass. 535, 554 (2011), lawyers -- and prosecutors in particular -- often "deal with subject matter that tends to be emotional," and thus are well-advised "to proceed with caution [so] that their opening statements do not slip into emotionally provocative argument." Degro, 432 Mass. at 322 n.4.
For the most part, the substance of the prosecutor's argument was within bounds, in that it outlined the case as the prosecution anticipated the evidence would reveal it to be. See Staines, 441 Mass. at 535. There were, however, points at which the prosecutor clearly crossed the line into impermissible argument. We are most troubled by the prosecutor's reference in his opening statement to a particular place as one the Torres brothers used for "purposes ... [t]hat us, we people, would never engage in" (emphasis added), and his repeated reference to the "empty chair" left by a third codefendant who, unbeknownst to the jury, was being tried separately. The pointed distinction between the Torres brothers and "we people," i.e., the prosecutor and the jury, improperly disparaged the defendant based on his affiliation with the Torres family, and improperly aligned the prosecution with the jury. See Commonwealth v. Burts, 68 Mass. App. Ct. 684, 688-689 (2007) (prosecutor's repeated use of "we" improperly "blur[red] the boundaries" between prosecutor and jury). The tactic went beyond permissible boundaries; that statement should not have been made. See Commonwealth v. Dodgson, 80 Mass. App. Ct 307, 314 (2011) ("prosecutor should not represent ... [self] as source of [community] ‘standards’ " when arguing to jury).
The prosecutor's reference to the "empty chair" left by Jeremiah Torres was also improper for its suggestion that where the three codefendants acted together, the jury should punish at least some of the wrongdoers, specifically the two codefendants who were present at trial. While we emphasize that the comments were improper, we conclude that in this circumstance, where neither theme was repeated in closing, the judge properly instructed the jury on the limited purposes of the opening statement, and the jurors demonstrated that they were not blinded to the evidence by the Commonwealth's argument, the errors did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Cohen, 412 Mass. 375, 382–383, (1992) ; Commonwealth v. Riberio, 49 Mass. App. Ct. 7, 11 (2000).
The remainder of the opening statement, while sometimes testing the limits of proper advocacy, remained within bounds. We agree with the Commonwealth that the prosecutor's reference to the Stadium partygoers’ "scurrying like rats" from the scene and his reference to the witnesses’ "incestuous" relationships with one another, although perhaps highhanded, were permissible hyperbole. See Commonwealth v. Kozec, 399 Mass. 514, 517 (1987) (juries able to filter out oratorical flourishes). Indeed, defense counsel used the "scurrying like rats" imagery three times in his own closing argument.
We emphasize that the Commonwealth overstepped to the extent that it suggested an alliance between the prosecution and the jury, but considering the evidence as a whole, see Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 14 (2010), and in light of the judge's proper instructions to the jury distinguishing argument from evidence, we conclude that the errors did not create a substantial risk of a miscarriage of justice.
Given our analysis, supra, to the extent the defendant argues that the prosecutor's preview in his opening statement of evidence of the victim's condition after the shooting and of Rubirosa's video recording created a substantial risk of a miscarriage of justice, we disagree.
ii. Closing argument. "Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009), citing Commonwealth v. O'Connell, 432 Mass. 657, 659 (2000). As we have discussed, gang evidence was properly admitted at trial, and the prosecutor was entitled to argue that evidence in closing. See Kozec, 399 Mass. at 516. We are likewise not persuaded by the defendant's contention that the prosecutor misstated the law defining reasonable doubt.
The prosecutor anticipated the judge's instructions about the types of evidence the jury could consider (i.e., "scientific" and "photographic") and noted that to the extent the jury found witness testimony credible, its verdicts could be based on that evidence alone. The argument was correct as a matter of law. See Commonwealth v. Platt, 440 Mass. 396, 401 (2003) ("A conviction may be based on circumstantial evidence alone, as long as that evidence is sufficient to find the defendant guilty beyond a reasonable doubt"). It did not address, and certainly did not erode, the reasonable doubt standard on which the judge later instructed the jury. Moreover, the judge repeatedly instructed the jury of their obligation to consider all the evidence.
The Commonwealth concedes, and we agree, that the prosecutor's reference in closing to the defendant's having made admissions to "five different women" reflected a counting error; there was evidence of only four admissions. Where the number of admissions made by the defendant was not central to either party's case, where defense counsel had just made the same mistake in his own closing argument, and where the prosecutor's argument identified each of the women to whom she was referring and their testimony, however, we are confident that the error created no risk of a miscarriage of justice, let alone a substantial one.
3. Ineffective assistance. The defendant filed a motion for new trial in which he argued that trial counsel provided him with ineffective assistance when he failed to object to Ruiz's testimony that on the defendant's return to her home after the shooting, she heard someone say, "Capo, you fucked up." As we have noted, the motion was denied, and the defendant appealed from that order.
a. Motion for new trial. We review the judge's ruling on a motion for new trial for an error of law or other abuse of discretion, and accord "particular deference" to the ruling where, as here, the motion judge was also the trial judge. Commonwealth v. Scott, 467 Mass. 336, 344 (2014). There was no error in the judge's ruling here.
The defendant's motion for new trial was supported by an affidavit of trial counsel in which counsel averred that in a moment of inattention, he failed to object to Ruiz's hearsay statement. The judge found that the lapse described by trial counsel fell below the minimum standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), but that the evidence admitted as a result was merely cumulative of other, properly admitted evidence. See id. For substantially the reasons set forth in part III of the judge's thoughtful memorandum, detailing the other, arguably more probative evidence of the defendant's role in the victim's killing, we reach the same conclusion.
b. Other ineffective assistance claims. Given our conclusion that the victim's sister's testimony and the gang-related evidence were properly admitted, and that to the extent that the prosecutor overstepped in his opening statement, his errors did not create a substantial risk of a miscarriage of justice, the defendant's claims of ineffective assistance related to those issues fail. See Commonwealth v. Curtis, 417 Mass. 619, 625 n.4 (1994).
The defendant's claim that counsel was ineffective in referring in his own opening statement to the likely testimony of a witness, Sanchez, who later unexpectedly refused to testify is likewise unavailing. "[T]rial counsel's failure to produce evidence to which counsel alludes in an opening statement [does not] constitute[ ], in and of itself, ineffective assistance of counsel in all cases." Commonwealth v. Duran, 435 Mass. 97, 109 (2001). Unlike in Commonwealth v. Martin, 484 Mass. 634, 641 (2020), cited in the defendant's brief, both parties expected Sanchez to testify at trial. Given that circumstance, we do not view as manifestly unreasonable trial counsel's decision to attempt to reduce the sting of Sanchez's testimony by anticipating it in his opening statement and planting the seed of doubt about Sanchez's credibility by referring to his motive to testify in a way that was helpful to the Commonwealth. See Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978) ("A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was ‘manifestly unreasonable’ when made").
The issue was not raised in the defendant's motion for new trial; we note that "our case law strongly disfavors raising ineffective assistance claims on direct appeal." Commonwealth v. Zinser, 446 Mass. 807, 809 n.2 (2006).
Conclusion. The judgment is affirmed, and the order denying the defendant's motion for new trial is affirmed.
So ordered.
affirmed