Opinion
No. 14–P–1000.
05-27-2016
COMMONWEALTH v. Jonathan RIVERA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by the defendant, Jonathan Rivera, from a conviction, following a jury trial, of murder in the second degree arising from the April 7, 2010, killing of Shaundell Turner. The defendant alleges several evidentiary errors as well as defective jury instructions. We affirm.
Background. Based on the evidence, the jury were warranted in finding the following facts. The victim and the defendant engaged in a physical altercation on the morning of April 7, 2010, outside Mary Jane Lee Park in Salem, exchanging punches before the defendant stabbed the victim in the chest numerous times with a knife. The victim died of blood loss from his wounds. Although the victim and the defendant had not previously met, there was animosity between them because the victim's girl friend, Jessica Fallis, had a “one night stand” with the defendant during a short period in the summer of 2009, when she and the victim had broken up. When Fallis told the defendant that she planned to reunite with the victim, the defendant made disparaging and racist remarks about the victim; he made similar comments on another occasion. A third party had informed the victim of the defendant's comments. That same summer, the victim and the defendant argued over the phone. The defendant's girl friend, Lydia Rodriguez, testified that the defendant had threatened to kill the victim during that telephone call, saying, “I'll murk you.”
The defendant testified that “on the street,” when a person says “I'll murk you” it means “I'll kill you.”
The defendant's theory at trial was self-defense. He took the stand and testified that he was afraid of the victim because he knew the victim to be a member of the Gangster Disciples gang who was known to carry guns. The defendant also knew that the victim was aware of the disrespectful comments the defendant had made about him. According to the defendant, the victim had threatened to kill the defendant during the telephone argument.
On cross-examination, the prosecutor asked the defendant, “[W]hat crew do you run with?” prompting an objection from defense counsel. A lengthy sidebar discussion ensued, with defense counsel arguing that he had received no discovery from the Commonwealth regarding the defendant's gang affiliations until the fourth day of trial. The prosecutor, in turn, claimed that she did not anticipate gang membership being an issue in the trial until the defendant's knowledge of the victim's affiliation was mentioned during defense counsel's opening statements, and had turned over the relevant discovery as soon as it was received. The prosecutor also pointed out that she had alerted the court that she might present rebuttal evidence depending upon the defendant's testimony as to his own gang membership.
Defense counsel maintained that the Commonwealth was well aware that the case involved gang membership, since the parties had posed a question on the subject to prospective jurors during voir dire, and had exchanged discovery on the victim's gang membership in response to a pretrial Adjutant motion filed by the defendant. Defense counsel asserted that he would have employed a different trial strategy had he been aware that the defendant was also in a gang. The trial judge noted, however, that the defendant himself was aware of his gang affiliations, even if he had chosen not to reveal them to his attorney.
The reference here to “Adjutant motion” derives from Commonwealth v. Adjutant, 443 Mass. 649 (2005), and refers to a motion to introduce evidence of specific instances of violent conduct allegedly initiated by the victim that may be relevant and admissible on the question of who was the first aggressor in a case like this involving a claim of self-defense. See Mass. G. Evid. § 404(a)(2)(B) (2016).
The prosecutor was permitted to pose the question to the defendant regarding his own gang membership, and the defendant testified that he was indeed a member of the Deuce Boyz Soldiers gang. The judge gave a limiting instruction to the jury, informing them that the defendant's gang membership was relevant only to the issue of his state of mind at the time of the stabbing, and could not be considered as evidence of his propensity for violence.
Following closing arguments, the judge instructed the jury on the murder in the first degree theories of premeditation and extreme atrocity or cruelty; murder in the second degree; self-defense; and voluntary manslaughter. The defendant did not object to any of these instructions. The jury returned a verdict of guilty of murder in the second degree, and the judge sentenced the defendant to the mandatory term of imprisonment for life.
Discussion. a. The defendant's gang membership and “unfair surprise. ” The defendant maintains that the Commonwealth did not meet its discovery obligations because it did not disclose that the defendant was a gang member until the defendant had already committed himself to a defense strategy in his opening statement. The record reveals that during a pretrial hearing on the defendant's request to offer documentary evidence linking the victim to criminal gang activity, defense counsel indicated it was his intention to inform jurors in his opening statement that the victim was in a gang and that the defendant was aware of it. The prosecutor responded that if the defendant testified to that effect, she would continue her investigation of the defendant and search for evidence of the defendant's involvement in gang activity. The record indicates that the judge correctly differentiated between the admissibility of what the defendant proposed to offer in evidence (knowledge of the victim's gang membership in order to demonstrate the victim's reputation for violence and, hence, the defendant's fear of the victim) and, in the event the defendant testified at trial, evidence of the defendant's reputation for truth and veracity. See Mass. G. Evid. § 608(a) (2016). Moreover, this pretrial exchange should have alerted defense counsel to the risk that offering evidence that the defendant knew of the victim's involvement in gang activity, pursuant to Commonwealth v. Fontes, 396 Mass. 733, 734–735 (1986), would open the door to the Commonwealth offering evidence of possible gang involvement by the defendant to rebut his claim that he was afraid of the victim because of the victim's gang membership. Thus, the defendant cannot claim surprise at the Commonwealth's cross-examination about his own gang involvement. Although the judge ruled that the Commonwealth had not violated any of its discovery obligations, it is unnecessary for us to reach that question because defense counsel was on notice, prior to trial, that if the defendant testified that he had knowledge of the victim's gang involvement, it would open the door to rebuttal evidence of the defendant's gang involvement if such evidence could be discovered. Under these circumstances, because defense counsel had access through his client, prior to the opening statements, to the information he received in discovery after the trial commenced, there is no basis to relieve the defendant of the consequences of his decision to introduce evidence of the victim's gang involvement. See Commonwealth v. Dietrich, 381 Mass. 458, 462 (1980) (“The defendant will not be relieved of the consequences of his tactical decision where the circumstances which are said to warrant relief were clearly foreseeable at the time of the [decision]”).
The subject came up again prior to the testimony of both the defendant and Sergeant Nardone, who was called as a defense witness after the defendant testified. When the judge ruled that he would defer ruling on whether Nardone could testify to the victim's involvement in a gang until after the defendant testified, the prosecutor again informed defense counsel that she might seek to present rebuttal evidence “depending on what [the defendant] says concerning his own gang involvement.”
b. Admission of prior bad act. The defendant argues that the judge abused his discretion by permitting the Commonwealth to offer evidence of the threat by the defendant to “murk,” i.e., to kill, the victim eleven months before the murder because it was too remote in time to be relevant to his state of mind at the time of the murder. There are no hard and fast rules governing temporal proximity for purposes of the relevance of prior bad act evidence. See Commonwealth v. Helfant, 398 Mass. 214, 228 n. 13 (1986). Here, the record reflects that the judge appropriately exercised his discretion by considering the probative value and the danger of unfair prejudice associated with the evidence before ruling on its admission. In other cases, appellate courts have rejected defense arguments that prior bad acts, more remote in time than the threat evidence in this case and far less probative, should not have been admitted. See Commonwealth v. Little, 376 Mass. 233, 238 (1978) ; Commonwealth v. Jackson, 417 Mass. 830, 841–842 (1994) ; Commonwealth v. Fickling, 434 Mass. 9, 15–17 (2001) ; Commonwealth v. Corliss, 470 Mass. 443, 450–451 (2015).
c. Jury instructions. The judge's instructions tracked the Model Jury Instructions on Homicide (1999) in the following sequence: (1) murder in the first degree, (2) murder in the second degree, (3) self-defense, and (4) voluntary manslaughter, which included the mitigating circumstances of (a) excessive force in self-defense, (b) heat of passion upon a reasonable provocation, and (c) heat of passion induced by sudden combat. For the first time on appeal, the defendant argues that there was a substantial risk of a miscarriage of justice because the judge failed to give an instruction on mitigating circumstances immediately after the malice instruction; the judge used the phrase “you would be justified” regarding returning a verdict on voluntary manslaughter; and the judge instructed that if the jury found the defendant guilty of murder, they were required to return the highest degree of murder proven. There was no error. In the introductory portion of the judge's final instructions, he told the jurors that the Commonwealth had the burden “to prove each element of the crime charged, and the absence of any mitigating circumstances.” See Commonwealth v. Tassinari, 466 Mass. 340, 356–357 (2013). The judge's use of the phrase “you would be justified” was in keeping with instructions previously approved by the Supreme Judicial Court. See Commonwealth v. Bolling, 462 Mass. 440, 446–449 (2012). Nor did the judge err when he instructed the jury that if their verdict was guilty of murder, it was their duty to return a verdict for the highest degree of murder proven. See Commonwealth v. Rivera, 445 Mass. 119, 131 (2005).
Although there is a newer, 2013 edition of the Model Instructions on Homicide, “the substance of both versions is the same.” Commonwealth v. Cadet, 473 Mass. 173, 185 n. 11 (2015). See Commonwealth v. Niemic, 472 Mass. 665, 678 (2015).
The defendant also argues ineffective assistance of counsel for failure to object to the jury instructions. The analysis is “essentially the same.” Commonwealth v. LaChance, 449 Mass. 854, 858 (2014), cert. denied, 136 S.Ct. 317 (2015).
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Finally, unlike in Commonwealth v. Acevedo, 427 Mass. 714, 716–717 (1998), where the Supreme Judicial Court held that it was error to instruct that it was the Commonwealth's burden to prove beyond a reasonable doubt that the defendant acted with reasonable provocation, the judge here correctly instructed the jury that if the Commonwealth disproved self-defense “solely, solely” by proving the defendant acted with excessive force in self-defense, the jury should return a verdict of guilty of voluntary manslaughter. See Commonwealth v. Glacken, 451 Mass. 163, 166–169 (2008).
Judgment affirmed.