Opinion
19-P-1530 19-P-1531 19-P-1532
05-20-2021
COMMONWEALTH v. John DEBURGO, Jr. (and seven companion cases ).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a joint trial in the Superior Court, the defendants were found guilty of various crimes stemming from the same incident in New Bedford. On appeal they challenge the sufficiency of the evidence and the prosecutor's closing argument. We affirm.
Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). In March of 2017, the victims, Ryan Cook and Timothy Maciel, Jr., were witnesses in a murder case involving Michael Sousa and Darian Cardoza. Cook and Maciel Jr. are cousins. Cook resided on the first floor of a multiunit house on Thompson Street in New Bedford with his family. Maciel Jr.'s family resided on the second floor of the residence, and Maciel Jr. "occasionally" visited and stayed overnight at that location.
In the early afternoon of March 2, 2017, Cook and his mother were driving in their neighborhood when Cook noticed the defendant, John DeBurgo, Jr., standing with Devonte Barbosa in Barbosa's backyard, which was down the street from the Cook/Maciel residence. Cook knew that DeBurgo was a friend of Sousa. He also knew that Barbosa was the brother of Cardoza. As they drove by, Cook looked toward DeBurgo and Barbosa who stared back at him. At some point, DeBurgo made a telephone call. Subsequently, other people arrived at Barbosa's residence. After their arrival, DeBurgo was "talking about going to see where [Cook] was." Minutes later, the three codefendants -- DeBurgo, Deshawn Hunt, and David Pellot -- accompanied by Barbosa and two others identified as Devonte Hunt and a juvenile, walked down the street in a straight line from Barbosa's house and continued to walk directly across the street from the victims' home. DeBurgo led the group. The juvenile "was playing with his waist ... like he had a gun." Barbosa was carrying a baseball bat. From inside the Cook/Maciel residence, various witnesses, including Cook and Maciel Jr., heard "screaming" and heard the group yelling "Come outside, you rat," and "Yo, yo, rat, come outside," and "Yo, come outside, rat. He's a snitch." According to Maciel Jr., "They were all yelling at the same time."
Barbosa pleaded guilty to one count of intimidation of a witness and testified at trial pursuant to a grant of immunity.
Next, Maciel Jr.'s father and sister, Jaylynn, who was seventeen at the time of trial, arrived home in a red Jeep and parked in front of the house adjacent to the Cook/Maciel residence. The group, led by DeBurgo, walked toward Jaylynn and Maciel Sr. DeBurgo yelled to Jaylynn to get her "rat ass cousin Ryan," and Maciel Sr. heard the group say, "Where's [Cook]? He's a rat. He's a snitch.... Basically they were all saying things." Jaylynn walked toward her house, and Cook and his brother, Albert came outside and walked toward the middle of the street. Maciel Sr. and Jaylynn also went to the middle of the street along with Cook's mother. The two groups exchanged words. At some point DeBurgo said to Albert, "Your brother's a rat. Wait until the trial's over." While the groups were in the street, Maciel Jr., who was watching from inside the house, saw the juvenile holding a silver handgun, and thus ran upstairs and retrieved a nine-millimeter handgun.
While the groups were in the street, DeBurgo "was calling [Cook] a rat." Cook challenged DeBurgo to a fistfight. DeBurgo would not engage. However, the defendant, Pellot, took out a six- to eight-inch knife and began "swinging it." As Pellot took out the knife, DeBurgo walked to his side and clapped his hands in encouragement. Pellot moved toward the Cooks and Maciels and swung the knife at several of them as they retreated toward the Cook/Maciel home. As the Maciels and Cooks backed onto their driveway, Maciel Jr. saw that the juvenile had pulled the pistol out. Maciel Jr. came outside and fired a shot. Shots were returned from across the street. Maciel Jr. placed the gun on the porch to the Cook/Maciel home. Cook subsequently grabbed the gun and ran down the driveway. There, he saw defendant Hunt pointing a gun toward him. Cook shot at him, and Hunt "was shooting back at [Cook]."
Maciel Jr. pleaded guilty to a misdemeanor count of possession of a firearm. In exchange for his plea deal, he was obligated to testify at trial.
New Bedford police officers received a report of gunshots and responded to the area. They spoke to witnesses and investigated the crime scene. Among other evidence, they found bullet holes and damage from bullets at the Cook/Maciel house, at the home diagonally across the street therefrom, at the house adjacent to the Cook/Maciel home, and on the red Jeep. Diagonally across the street from the Cook/Maciel home, police officers located seven .40 caliber shell casings on the ground. Trooper Nuno Medeiros of the Massachusetts State Police examined the shell casings and opined that all the shell casings were fired from the same .40 caliber firearm.
New Bedford Police Detective Steven Wadman observed cameras on the outside of the Cook/Maciel home. He spoke to Cook who denied the existence of any video. After further questioning, Cook provided a DVR of a video. The video, which depicted the bulk of the activity described above, was admitted into evidence as an exhibit and viewed by the jury.
We have received and viewed the video marked as Exhibit 7 at trial.
The jury found DeBurgo guilty of one count of intimidation of a witness; Pellot guilty of one count of intimidation of a witness and three counts of assault by means of a dangerous weapon; and Hunt guilty of one count of intimidation of a witness, one count of unlawful possession of a firearm, and one count of unlawful possession of a loaded firearm.
The jury found defendants Pellot and Hunt not guilty of various other charges.
Discussion. 1. Sufficiency of the evidence. DeBurgo and Pellot both contend that the evidence was insufficient to support a conviction for intimidation of a witness on either an aiding and abetting theory or an individual liability theory. We apply the familiar test to determine "whether, after viewing the evidence in the light most favorable to the [Commonwealth], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis and citation omitted). Latimore, 378 Mass. at 677. "If, from the evidence, conflicting inferences are possible, it is for the jury to determine where the truth lies, for the weight and credibility of the evidence is wholly within their province." Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C. 450 Mass. 215 (2007), and 460 Mass. 12 (2011).
Here, the Commonwealth introduced abundant evidence, including eyewitness testimony, a video capturing the crux of the incident, and corroboration in the form of physical evidence, to convict DeBurgo and Pellot of intimidation of a witness under the Latimore standard. The video evidence in particular was powerful, as it showed the defendants walking in line across from the Cook/Maciel home, some of whom were armed; showed DeBurgo leading the group and confronting the Maciel and Cook family members; showed Pellot take out the knife and assault various family members; and showed DeBurgo moving forward with Pellot while clapping his hands in support of Pellot. Shouts of "rat" and "snitch" from DeBurgo and the entire group preceded and accompanied the harassing and intimidating activity. The Commonwealth also provided evidence of motive. The evidence was not only sufficient, but strong, and thus the judge properly denied the motions for a required finding of not guilty.
General Laws c. 268, § 13B, provides in relevant part:
"(b) Whoever willfully, either directly or indirectly: (i) threatens, attempts or causes physical, emotional or economic injury or property damage to ... or (iii) misleads, intimidates or harasses another person who is a: (A) witness or potential witness; (B) person who is or was aware of information, records, documents or objects that relate to a violation of a criminal law ... shall be punished."
A rational juror could have found that the evidence showed that the defendants directed their threats and intimidating activity at Cook, Maciel Jr., and their family members.
The evidence as to both participants was sufficient under theories of individual liability and aiding and abetting liability. See generally Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009).
The same analysis applies to Pellot's claim that the evidence failed to prove assault by means of a dangerous weapon. The video and witness testimony were more than sufficient to sustain the Commonwealth's burden.
Finally, Hunt claims that the evidence failed to prove that the barrel length of the firearm used by Hunt was less than sixteen inches. See G. L. c. 269, §§ 10 (a ), 10 (n ) ; G. L. c. 140, § 121. We disagree. Here again, the video evidence and the witness testimony persuade us otherwise. Maciel Jr. testified that the juvenile "was playing with his waist ... like he had a gun," and later saw the juvenile with a silver pistol in his hand. The jury could have found that all the .40 caliber shell casings came from the same gun, and thus that the pistol held and fired by the juvenile was the same pistol that was fired by Hunt. This evidence, combined with the video evidence and testimony as to the concealment of the weapon, was sufficient for the jury to conclude that the barrel of the pistol was well short of sixteen inches. See, e.g., Commonwealth v. Evans, 439 Mass. 184, 198, cert. denied, 540 U.S. 923 and 540 U.S. 973 (2003) ; Commonwealth v. Sylvester, 35 Mass. App. Ct. 906, 907 (1993).
2. Closing argument. DeBurgo and Hunt claim that the prosecutor caused undue prejudice by referencing facts not in evidence. DeBurgo emphasizes the prosecutor's reference to the substance of DeBurgo's telephone call, which, he argues, was not established by the evidence at trial. Hunt contends that the evidence did not support the prosecutor's claim that Hunt used the gun earlier held by the juvenile. The claims are unavailing.
The Commonwealth's appellate brief contained statements regarding whom DeBurgo called. DeBurgo moved to strike these statements as unsupported by the trial record. Prior to oral argument, the Commonwealth acknowledged the error. The erroneous statements in the Commonwealth's brief do not alter our conclusion here. The contention, discussed infra, that DeBurgo contacted his friends, including Hunt, was a reasonable inference adduced from the evidence at trial.
First, contrary to the claims on appeal, the defendants did not preserve these issues for appeal. Second, irrespective of the standard of review, we discern no prejudicial error. The prosecutor asked the jurors to draw reasonable inferences based on the evidence. For example, the prosecutor argued that DeBurgo made a telephone call after which other "friends" arrived at Barbosa's house. The prosecutor also stated that DeBurgo did so to help execute his plan to send a message to the victims. This argument was a reasonable inference for the jurors to draw based on the totality of evidence and the sequence of events laid out through witness testimony. Furthermore, the evidence -- including the video showing DeBurgo leading the group as they walked down the street and in front of the Cook/Maciel home as well as DeBurgo's subsequent movements and conduct -- supported the prosecutor's reference to DeBurgo as the leader of the group. Likewise, for the reasons discussed supra, the prosecutor did not err by claiming that Hunt got "the gun" and fired it. Here again, the eyewitness testimony combined with the video evidence supported that inference. There was no error.
DeBurgo's counsel objected to the prosecutor's closing argument, but not on the bases now asserted on appeal. Accordingly, our review is limited to whether any alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016).
Finally, we note that the judge instructed the jury several times that closing arguments are not evidence. The judge's instructions were clear, and the defendants did not object thereto. In addition, the prosecutor told the jury during closing argument that he was stating "[his] view of the evidence. Your view is the one that counts. If I get something wrong, you disregard what I say." We are confident that the jury followed the judge's instructions as well as the prosecutor's admonition.
To the extent we do not discuss other arguments made by the defendants, such as DeBurgo's claims that the immunized witness Barbosa's testimony was not corroborated as required by G. L. c. 233, § 20I, and that the prosecutor improperly suggested DeBurgo was a "gang" leader, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgments affirmed.