Opinion
09-P-1955
03-26-2012
COMMONWEALTH v. SARATH LON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from the defendant's conviction, after a jury trial, of second degree murder. For the reasons that follow, we do not accept the appellate contentions advanced by the defendant, and we affirm.
1. The voir dire issue. The defendant contends that the judge erred in not holding a voir dire concerning whether there was a foundation for the gang related evidence. However, the judge did hold a hearing on the defendant's motion in limine to exclude gang evidence and heard arguments of counsel concerning the issue. The judge ruled that the admission of gang evidence would be 'limited to areas where it is probative and relevant and [would be] excluded in other instances.' That ruling was correct. Among other things, gang related evidence was embedded in the defendant's statements which were clearly admissible, i.e., the defendant's videotaped statement to the police and his testimony at a probable cause hearing. The defendant's admissions in these prior statements, included that: he 'used to roll with the Bloods' in high school, his brother was a current Blood who had ongoing problems with the Crips, he felt 'heat' because of his brother's Blood membership, and he knew that Gonsalves (the man whom the defendant drove to the shooting site) 'runs with the Bloods.' There was also evidence that the victim of the shooting, Nathan Harrington, was a gang member of the rival Crips. In light of this connectivity between the defendant and gangs (which the defendant admitted), we see no error in the judge's ruling on the admissibility of gang evidence. On the admissibility of gang evidence, see generally, Commonwealth v. Smith, 450 Mass. 395, 400 (2008); Commonwealth v. Wallace, 460 Mass. 118, 123-124 (2011); Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 9-12 (2010). Nor are we persuaded that a voir dire hearing was necessary, as the hearing the judge conducted was sufficient.
1 The same judge had presided over the trial of Gonsalves approximately one month before this trial, and, therefore, had some background concerning the gang related evidence at issue and the defendant's statements. (Gonsalves was acquitted in this prior murder trial).
2. Detective Ferreira's testimony concerning the defendant's gang affiliation. A principal point advanced by the defendant on appeal is that there was reversible error arising out of a number of references in Detective Ferreira's testimony concerning the defendant's membership in, or affiliation with, the Bloods. We are not so persuaded.
First, it was defense counsel who elicited certain now contested references in the detective's testimony. During the cross-examination of Detective Ferreira, who was the main police witness, defense counsel brought out that the detective had referred to the defendant in grand jury testimony as a 'documented Blood.' Defense counsel then sought to rebut the very reference counsel had himself elicited. That is, to rebut the defendant's continuing 'documented' membership, and to seek to show the contrary of non-affiliation and non-Blood membership at the time of the shooting, defense counsel questioned the detective about the defendant's testimony at the probable cause hearing involving the alleged shooter, Leonard Gonsalves. Further, defense counsel posed a series of questions to the detective about the defendant offering evidence against another Blood member. This avenue was pursued, it would appear, so that the point would be made that a 'documented' member of the Bloods would not have testified against other members of the gang. In this endeavor, defense counsel did obtain an acknowledgment from the detective that, if a gang member testified against another gang member, that would be deemed not loyal, and the testifying gang member would have to worry about his own safety. Thus, to the extent that this fairly risky strategy was to have any efficacy, the acknowledgment achieved what defense counsel sought.
2 The defendant also claims that the detective improperly referred to that part of the defendant's statement to the police that the defendant knew that Gonsalves had shot the victim, when that part had been suppressed. However, as the judge noted, defense counsel's question to the detective 'could logically be interpreted by this witness as calling for the response he just gave.' In any event, following a colloquy with counsel, the judge gave a limiting instruction, informing the jury that the only statements of the defendant to be considered were within those parts of video recordation of the police interview which were a part of the exhibit. (Parts of the recorded statement had been redacted from the exhibit, and this particular reference had been so excluded).
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Second, the judge undertook to lessen adverse impact on the jury from this line of inquiry. During the cross-examination of the detective, the trial judge -- having already commented to defense counsel about the potential risks in the tactic
-- and without any defense request -- sua sponte undertook to give a limiting instruction in accord with Commonwealth v. Maldonado, 429 Mass. 502, 504-505 (1999). Specifically. the judge instructed as follows.
'Jurors, any evidence in this case concerning gangs or gang membership is limited in its relevance and application. It's very important that you as jurors understand that being a member of a gang, being a past member of a gang, being affiliated with gangs, hanging around with gang members, any of those types of descriptions, if accepted by you as credible in this case, are not by themselves in any way a reason suggesting guilt. Gang membership or gang affiliation is not itself illegal.
'The indictments before you, or the indictment before you -- excuse me -- alleges a specific incident, a specific alleged crime on March 18th, 2006. The issue that you will be asked to decide in this case is whether based upon all of the evidence, the defendant did or did not commit that particular crime as part of a joint venture with one or more other individuals. That's what you're focusing on.
'If you credit certain of the evidence relative to gang affiliation, membership activity and so forth, you may determine that the evidence assists you in understanding the circumstances surrounding the events of March 18th and perhaps the motive for the matter on March 18th. And it's only for that very limited purpose that any mention of gang activity is made in the course of the evidence.
'If you believe that, and if you find it probative, having merit, having worth, in your consideration of the circumstances or motive for the incident on March 18th, then you may use it in you deliberations. But aside from that very limited use of gang information, the gang information has no other use and is to be disregarded by you as jurors.'
Third, references to gang evidence, including those within the detective's testimony, should be considered as lessened in light of the searching questions asked by the judge during jury impanelment. The judge had engaged in probing and detailed individual voir dire of potential jurors, telling them that gang evidence may be involved in the trial, and inquiring of the potential juror's ability to remain impartial.
Fourth, the judge gave a strong gang related limiting instruction in the final charge, which in the main tracked the mid-trial instruction quoted above, but again had full and independent cautionary warnings to the jury concerning gang evidence. All of these prophylactic measures insured against undue and unfair prejudice from the gang evidence generally, and the testimony of Detective Ferreira in particular. See, e.g., Commonwealth v. Maldonado, supra; Commonwealth v. Rebello, 450 Mass. 118, 129 (2007) (inquiry of potential jurors and limiting instructions concerning prejudice associated with gang evidence). Accord Commonwealth v. John, 442 Mass. 329, 338 (2004).
3. Joint venture evidence. The defendant contends there was insufficient evidence to support a joint venture to commit murder. We disagree. There was evidence that the defendant's Honda was seen slowly driving by, as if previewing, the street area where the shooting occurred. The defendant admitted that he drove the shooter Gonsalves to near the place where the shooting occurred, knew that Gonsalves wanted to be taken there to 'handle some business,' and knew that Gonsalves had a gun -- albeit the defendant stated that he only learned about the gun as he was driving Gonsalves. The defendant parked his Honda a short distance from the shooting scene, shut off the headlights, leaving only parking lights on, and waited as the shooter Gonsalves left the car. When Gonsalves returned to the Honda with directions that the defendant 'get the fuck out of here,' the defendant complied, and drove away.
4. Prosecution opening statement and closing argument. The defendant contends that the prosecutor committed error in the opening statement and closing argument by overstating the gang related evidence. We discern no error.
The reference to gangs in the opening statement was restrained and consisted of a single sentence in which the prosecutor noted that the defendant and the shooter knew each other, 'and they shared at least one thing in common, that would be their ties to a gang known as the Bloods.'
The defendant's contentions concerning the closing are similarly not persuasive. The prosecutor's closing was also an accurate commentary on the gang evidence in the case, did not misstate the evidence, and was a fair response to the defense closing. There was no objection, and we do not discern error.
Judgment affirmed.
By the Court (Berry, Katzmann & Grainger, JJ.),