Opinion
No. 11–P–134.
2013-09-27
COMMONWEALTH v. Daniel KUNG.
By the Court (BERRY, WOLOHOJIAN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions of murder in the second degree and unlawful possession of a firearm. On appeal, he argues that (1) his request for a jury instruction on self-defense should have been allowed; (2) his request for jury instructions on both voluntary and involuntary manslaughter should have been allowed; (3) it was error to admit police expert testimony concerning local gangs; (4) it was error to instruct the jury that gang affiliation evidence could be considered in evaluating whether the defendant acted with malice; (5) the denial of his motion to suppress statements he made to police after his arrest was error; and (6) his conviction of unlawfully possessing a firearm under G.L.c. 269, § 10( a ), violated the Second Amendment to the United States Constitution. We reverse the murder conviction because we conclude that the defendant was entitled to an instruction on self-defense. We affirm the firearm conviction.
1. Self-defense instruction. “A defendant is entitled to have the jury at his trial instructed on the law relating to self-defense if the evidence, viewed in its light most favorable to him, is sufficient to raise the issue.” Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). We therefore “summarize the evidence most favorable to the defendant on the issue[ ] of self-defense.” Commonwealth v. Little, 431 Mass. 782, 783 (2000).
“In determining whether sufficient evidence of self-defense exists, all reasonable inferences should be resolved in favor of the defendant, and, no matter how incredible his testimony, that testimony must be treated as true.” Commonwealth v. Pike, 428 Mass. 393, 395 (1998). This standard applies even when the defendant has given conflicting accounts of what occurred. See Commonwealth v. Pring–Wilson, 448 Mass. 718, 726–728, 733 (2007). Were the standard instead to include any assessment of the countervailing inferences that could reasonably be drawn from the defendant's contradictory statements (which were introduced substantively as admissions) during both the Commonwealth's case as well as during the defense, it is questionable that the defendant would have been entitled to a self-defense instruction, and under such a standard one member of this panel has determined she would conclude the instruction was unwarranted and affirm the conviction.
At about 5:30 P.M. on June 24, 2004, the defendant and his friend, Samnang Meas, were returning from an auto parts store in Lowell, traveling in Meas's black Honda Accord down Branch Street toward Queen Street. Both men were members of the Tiny Rascals Gang (TRG). As the Accord turned right onto Queen Street, the defendant saw a group of seven or eight men run into their cars and grab weapons. At that point, the defendant told Meas “to just step on the gas pedal and just hit a left real quick and go.” The Accord turned left onto Middlesex Street (into the wrong lane of traffic) and the defendant saw the men chasing them. Meas then drove through a red light, turned left onto School Street, drove through another red light, and took a left back onto Branch Street. The Accord then “got stuck in traffic on the corner of Queen and Branch.”
Stuck in traffic with Meas, the defendant saw two men with pipes and one man with a club come out of a red Toyota Camry and run toward them. He asked Meas to drive away but Meas said, “we can't.” The defendant then stepped out of the car to find out what “issue” the three men had, and when he heard someone say “you fucking roach” (a derogatory term to TRG members), he concluded that the men were members of a rival gang. The defendant began to run in one direction but was blocked by a man with a pipe. He ran in the opposite direction and was again blocked. The defendant then ran onto the sidewalk and ended up near the Camry, where he saw another man running toward him with a pipe. That man was “getting really close,” so the defendant ran around the front of the Camry to “try and go back to the black Accord.” But “the guy with the pipe was swinging his weapon, getting really close,” so the defendant ran around to the back of the Camry. At that point, the defendant heard someone say “run him over,” and the Camry reversed rapidly in his direction. He jumped out of the way (onto the sidewalk) and then ran to the front of the Camry to avoid the man with the pipe, who was “trying to smash [the defendant's] head.” The Camry then came “really fast forward, trying to hit” the defendant, so he jumped out of the way again and landed in the street. According to the defendant, when he saw the driver open the Camry's door to get out, he remembered that he had a gun in his pocket, so he blindly fired a single shot over his shoulder to get away. The shot struck and killed the driver, Ponarith Uong.
The defendant testified that “I notice[d] that the car was coming forward—forward towards me, and the guy [with a pipe] that was still behind me, and that's when I thought to myself, like, damn, these guys are really trying to—really trying to kill me.”
The above description of what happened is taken from the defendant's trial testimony. There are conflicts between this trial testimony and what the defendant described as happening in his statement to Detective Murray, which statement was introduced in the government's case-in-chief substantively as an admission, including that the defendant did not tell the detective that anyone said, “run him over,” or that the Camry was “trying to hit” the defendant. Further, there was no pretrial evidence that the victim driver had a pipe or other weapon. See comment in note 2, supra.
“When deadly force is used ... a defendant is entitled to an instruction on self-defense where there is evidence warranting at least a reasonable doubt that he (1) had reasonable ground to believe and actually did believe that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force, (2) had availed himself of all proper means to avoid physical combat before resorting to the use of deadly force, and (3) used no more force than was reasonably necessary in all the circumstances of the case.” Commonwealth v. Harris, 464 Mass. 425, 432 (2013) (citations and quotation marks omitted). Because the defendant's testimony (summarized above) taken at face value, as it must be, “support[s] a reasonable doubt as to whether the[se] prerequisites of self-defense were present,” Commonwealth v. Pike, 428 Mass. 393, 395 (1998), we conclude that the defendant was entitled to the instruction he requested, and that the issue of self-defense should have been put to the jury.
If the defendant's testimony were credited, the jury could have concluded that he had reasonable ground to believe, and actually did believe, that the threat of death or serious bodily harm was imminent, cf. Commonwealth v. Little, 431 Mass. at 786 (where victim was known to carry gun and moved as if reaching for it, defendant was entitled to self-defense instruction), that he used deadly force only as a last resort, and that deadly force was reasonably necessary under the circumstances, see Commonwealth v. Harrington, 379 Mass. at 452 (“[T]he reasonableness of the force used in self-defense is to be decided by the jury as the triers of fact, after being properly instructed on the applicable rules of law”).
“A self-defense instruction is not required unless there is some evidence that the defendant availed himself of all means, proper and reasonable under the circumstances, of retreating from the conflict before resorting to the use of deadly force.” Commonwealth v. Pike, 428 Mass. at 398. Such evidence existed here. The defendant testified that he attempted to flee on foot before he was cornered near the red Camry. The duty-to-retreat rule “does not impose an absolute duty ... regardless of personal safety considerations; an individual need not place himself in danger nor use every means of escape short of death before resorting to self-defense.... He must, however, use every reasonable avenue of escape available to him.” Ibid. Here, the question of reasonableness should have been put to the jury.
Because the defendant objected to the absence of a self-defense instruction, we review for prejudice. Commonwealth v. Rosado, 428 Mass. 76, 79 (1998). In our view, a new trial is required because the Commonwealth cannot show “with fair assurance ... that the judgment was not substantially swayed” by the lack of a self-defense instruction. Ibid., quoting from Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Cf. Commonwealth v. Anestal, 463 Mass. 655, 678 (2012) (prejudicial error to decline to give warranted instruction on excessive use of force in self-defense).
Because we reverse the murder conviction on these grounds, we need not discuss all of the other arguments made by the defendant on appeal. See Commonwealth v. Magraw, 426 Mass. 589, 600 (1998). However, we do reach the remaining issues that follow.
Among others, we do not reach the defendant's arguments that he was entitled to instructions on voluntary and involuntary manslaughter. His entitlement to those instructions will depend on the evidence in any retrial.
2. Expert testimony regarding gangs. The defendant challenges the introduction of Detective Bergeron's expert testimony on gangs during the trial. The testimony was relevant. Such expert testimony concerning gangs is properly admitted when the expert's qualifications are duly established by adequate foundation. See Commonwealth v. Swafford, 441 Mass. 329, 333–334 (2004). See generally Brodin & Avery, Massachusetts Evidence § 7.6.1 (8th ed. 2007 & Supp.2013). Here, the trial judge conducted a pretrial hearing on the Commonwealth's motion in limine to admit expert police testimony. There, Detective Bergeron testified that he had been with the Lowell police department for thirteen years, and had worked in the community response gang unit for over three years. During that time, Detective Bergeron had frequent one-on-one contact with gang members and had substantial gang-specific training. In our opinion, this law enforcement background set an appropriate foundation for the detective's expert testimony at trial regarding gangs present in Lowell.
Indeed, Detective Bergeron's qualifications—as developed both in the pretrial hearing and in his trial testimony—parallel the qualifications and expert testimony of the officer in the Swafford case. Specifically, Detective Bergeron described the activities of, and the history of, gangs in Lowell—including specific hallmark symbols and colors, and the derogatory street names used by rival gangs. All of this, we conclude, was properly admitted by the trial judge.
The defendant contends the gang evidence drew undue prejudicial attention to his gang affiliation. But this contention is belied by the careful efforts of the trial judge to appropriately limit and define the parameters for the jury's consideration of the gang evidence. At all appropriate points during trial the judge gave direct and clear limiting instructions on the gang evidence, including during jury empanelment, the trial itself, and in the final jury charge. Moreover, the judge's mid-trial instructions, as well as the final charge, closely track the language approved in Commonwealth v. Maldonado, 429 Mass. 502, 505 n. 1 (1999). For example the judge made clear that the gang affiliation evidence “cannot be used by you [the jury] to infer that [the defendant] is the type of person who would commit crimes.” Furthermore, each time the judge gave a limiting instruction, she reinforced its significance by reminding jurors of their oaths. See Commonwealth v. Correa, 437 Mass. 197, 201 (2002) (reminder of oath minimized risk of prejudice and supported conclusion that evidence was properly admitted). In sum, we discern no error in the admission of Detective Bergeron's testimony.
The judge reiterated similar limitations on gang evidence throughout the trial when other witnesses testified about gangs.
3. Motion to suppress. The defendant argues that the motion judge erred in denying his motion to suppress various statements he made to Trooper Manning and Sergeant Murray following his arrest. The statements at issue were part of the defendant's forty-five minute oral account of the events leading up to the shooting. The defendant claimed in the motion to suppress that his Miranda rights waiver was constitutionally invalid and that his statements to Trooper Manning and Sergeant Murray were involuntary. We address each claim in turn.
The defendant requested that the interview with Sergeant Murray not be recorded. See generally Commonwealth v. DiGiambattista, 442 Mass. 423 (2004).
a. Miranda waiver. After the defendant was arrested, Trooper Manning and Sergeant Murray traveled to North Carolina to bring the defendant back to Massachusetts. Trooper Manning read the defendant Miranda rights warnings at the jail in North Carolina, and the defendant signed a Miranda card. On the way to the airport, the defendant asked the officers if he would receive a court-appointed lawyer. Sergeant Murray replied that he would. Later, while on the plane, the defendant asked Sergeant Murray, “What do you think is going to happen to me?” In response, Sergeant Murray suggested that he should consider talking, telling him that “if he thought he was acting in self-defense, maybe he should tell his side of it.” Subsequently, while in custody in Lowell, Sergeant Murray asked the defendant if he wanted to talk. The defendant replied affirmatively and was brought to an interview room with Sergeant Murray and Trooper Manning. There, Sergeant Murray read the defendant a Miranda warning for the second time. The defendant again signed a Miranda form and proceeded to make the statement at issue. The motion judge later denied the defendant's motion to suppress this statement.
The motion judge's finding that there was a valid Miranda waiver is well-supported by the testimony at the suppression hearing. As noted above, the defendant received two separate Miranda warnings, and he signed a Miranda document after each. Significantly, the defendant waived his rights for the second time immediately prior to making the statement he later sought to suppress. Such temporal proximity between the Miranda waiver and the statements sought to be suppressed supports a finding that the waiver was voluntary, knowing, and intelligent. Furthermore, the defendant initiated the conversation by asking the officer what would happen to him. This suggests that the defendant's free will was in no way compromised. Compare Commonwealth v. Groome, 435 Mass. 201, 217 (2001) (defendant's continued willingness to talk to officers before signing a Miranda card supported a finding that he waived his right to remain silent); Commonwealth v. Woodbine, 461 Mass. 720, 729 (2012) (same). On this record, the motion judge properly determined that the defendant's Miranda waiver was valid.
b. Voluntariness of the defendant's statement. Because the defendant's question regarding access to an attorney was not an affirmative request for representation, it was not tantamount to invoking his right to an attorney. See Commonwealth v. Jones, 439 Mass. 249, 258–259 (2003). In short, the defendant's exchange on this topic with Sergeant Murray prior to making the statements at issue does not nullify voluntariness.
Likewise, Sergeant Murray's remark that the defendant should “maybe” consider telling his side of the story if he believed he was acting in self-defense does not rise to the level of coercion. “An officer may suggest broadly that it would be ‘better’ for a suspect to tell the truth ... or may state in general terms that cooperation has been considered favorably by the courts in the past.” Commonwealth v. Meehan, 377 Mass. 552, 564 (1979). Sergeant Murray's remark did not contain any promise of leniency and his language was qualified, not unequivocal. See Commonwealth v. O'Brian, 445 Mass. 720, 726–727 (2006) (statement that the defendant “may see the light of day” if he cooperated with police was not coercive). The defendant's own conduct demonstrates that the decision to talk was a calculated one, as he preceded his decision to talk by advising Sergeant Murray that “he would think about it.” There was no error.
4. Constitutionality of G.L.c. 278, § 7. For the first time on appeal the defendant argues that G.L.c. 278, § 7, violates the Second Amendment to the United States Constitution by placing a burden of production on the defendant to produce evidence of a valid firearm license. The defendant's failure to raise this issue below precludes its consideration now. See Commonwealth v. Johnson, 461 Mass. 44, 56 n. 17 (2011) (“The defendant's challenge to the statute, both in terms of its allocation of the burden of proof and its presumption of unlawfulness, is not a constitutional issue that can be raised for the first time on appeal”). See also Commonwealth v. Loadholt, 460 Mass. 723, 727 (2011).
5. Conclusion. On the indictment for murder, the judgment is reversed and the verdict is set aside. On the indictment for possession of a firearm, the judgment is affirmed.
The case went to the jury on the possibilities of murder in the first degree or murder in the second degree. The jury's verdict of guilt on the latter charge was an implied acquittal on the former, as to which, therefore, double jeopardy principles now bar retrial. See Ariel A. v. Commonwealth, 420 Mass. 281, 284–285 (1995).
So ordered.