Opinion
19-P-1661
07-16-2021
COMMONWEALTH v. JOSHUA SANTOS. [1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial in the Superior Court, the defendant was convicted by a jury of second-degree murder, unlicensed possession of a firearm, and unlicensed possession of ammunition. When his motion for a new trial was denied, he appealed both the convictions and the denial of his motion. Considering the defendant's consolidated appeals, we discern neither an abuse of discretion nor other error in the judge's determination that the defendant failed to demonstrate his entitlement to a new trial on the grounds of newly discovered evidence, and we are likewise unpersuaded that the judge abused his discretion in his evidentiary rulings at trial. Accordingly, we affirm.
The Commonwealth entered a nolle prosequi as to sentencing enhancements on the latter two charges.
Background.
We briefly summarize the evidence in the case as the jury could have viewed it, reserving certain details for later discussion. On June 2, 2013, Rolando Colon, then the leader of the La Familia gang in Holyoke, was with a group of other gang members, including Damien Alvarado, Jose Santiago, and Jose Rodriguez. Colon told the group that someone had been shot the night before after a dispute, and that "the dudes from last night were coming down to talk." On instructions from Colon, the defendant and Santiago collected a handgun from a storage location up the street. The defendant put the gun in his pocket, then he, Santiago, and other members of the gang, including Jose Rodriguez, agreed to go to the place where Colon planned to meet the incoming group "to make sure [that Colon] was going to be good."
The defendant drove Santiago toward the meeting place. As they drove, Colon spoke with the defendant using the speaker phone feature on Santiago's cell phone; Santiago heard Colon say, "When I give you the signal, you know what to do." The defendant answered, "All right. Say no more." At 16 Cabot Street, the defendant parked the car on the street. Alvarado and Rodriguez were standing on the corner, and Colon was with the victim, Juan Quinones, on the porch at 16 Cabot Street. Santiago saw Colon waving his hat in his hand in an unaccustomed gesture.
In the car, the defendant told Santiago to "go pop him." Understanding the defendant to be instructing him to shoot Quinones, Santiago refused, told the defendant to do it himself, and left the car. The defendant then called Rodriguez over to the car. Rodriguez, who was wearing a red shirt, red and black hat, and black basketball shorts, got into the back seat. The defendant passed the gun to Rodriguez; Rodriguez got out of the car and walked up the ramp at 16 Cabot Street and out of Santiago's sight with his hand in the front of his basketball shorts. Santiago heard four gunshots and saw Rodriguez run down the ramp and then down Cabot Street toward South Canal Street; once the shots were fired the defendant "just took off" in his car down Cabot Street toward Canal Street. Bystanders saw a man in a red shirt and black shorts shoot Quinones. Quinones died of his gunshot wounds.
The defendant, Colon, Rodriguez, and Santiago were indicted and charged with murder in the first degree, illegal possession of a firearm, and illegal possession of ammunition; the defendant and Rodriguez were tried together. Santiago and Alvarado, each of whom ultimately entered into cooperation agreements with the Commonwealth, both testified for the prosecution at trial.
Discussion.
1. Motion for new trial.
We first consider the defendant's challenge to the denial of his motion for a new trial.
A judge may allow a motion for a new trial "if it appears that justice may not have been done." Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001) (rule 30). Where, as here, the defendant's motion for a new trial is based on a claim of newly discovered evidence, the defendant must prove "both that the evidence is newly discovered and that it casts real doubt upon the justice of the conviction." Commonwealth Wright, 469 Mass. 447, 460 (2014), quoting Commonwealth v. Weichell, 446 Mass. 785, 798 (2006). The defendant also bears the burden of demonstrating that the new evidence is "material and credible." Commonwealth v. Bonnett, 482 Mass. 838, (2019), quoting Commonwealth v. Grace, 397 Mass. 303, (1986). We review a postconviction motion for "a significant error of law or other abuse of discretion" (citation omitted), Commonwealth v. Forte, 469 Mass. 469, 488 (2014), mindful that "[r]eversal for abuse of discretion is particularly rare where the judge acting on the motion [for a new trial] was also the trial judge." Commonwealth v. Rice, 441 Mass. 291, 302-303 (2004), quoting Commonwealth v. Schand, 420 Mass. 783, 787 (1995).
We are not persuaded that the defendant's motion raises "an issue 'of constitutional dimension'" requiring application of a different standard of review. Commonwealth v. Drayton, 473 Mass. 23, 31-32 (2015), quoting Commonwealth v. Conkey, 443 Mass. 60, 66-67 (2004).
At the hearing on his motion for a new trial, the defendant's witnesses included John Brady and Amadi Sosa, each of whom testified to having been held at the Hampshire County Jail and House of Corrections (HJHC) with Santiago and Alvarado while the defendant was awaiting trial on this matter. Both Brady and Sosa testified that while incarcerated, Alvarado said things to them that indicated that Alvarado and Santiago planned to testify falsely against the defendant. Brady testified that Alvarado told him that Santiago was pressuring him to testify at the defendant's and Rodriguez's trial and that Alvarado asked Brady about the penalties for perjury. Similarly, Sosa testified that while he and Alvarado were at HJHC, Alvarado told him that he and Santiago were "lying" in a case in exchange for leniency in a pending firearms prosecution against Santiago. The defendant argued that this was newly discovered evidence that proved that Alvarado and Santiago "engaged in a coordinated campaign to deceive the court and the jury in the defendant's case," thus "cast[ing] real doubt on the justice of the conviction." Wright, 469 Mass. at 460, quoting Weichell, 446 Mass. at 798.
As we have noted, Santiago had been indicted on charges including first degree murder of Quinones. Alvarado was held pending trial on charges arising from a separate shooting.
The judge disagreed. Assuming, without deciding, that Brady's and Sosa's accounts were "newly discovered evidence" for the purposes of rule 30, the judge nonetheless rejected the defendant's argument, concluding that neither witness's testimony was credible. In a thoughtful and detailed memorandum of decision, the judge explained the bases for his credibility determinations. As examples, the judge noted that Brady had a motive to testify against Alvarado and highlighted Brady's unlikely claim that although he knew the defendant, he was ignorant of the defendant's gang involvement. Similarly, the judge considered Sosa's dubious denial of his own gang affiliation and inconsistencies in his testimony about the circumstances under which Alvarado claimed to have lied about the defendant's involvement in the crime, as well as evidence of Sosa's potential bias against the Hampden County District Attorney's Office. The judge also took into account the lack of any specific detail about Alvarado's planned perjury in either Brady's or Sosa's testimony.
We note that Brady testified that he was a former president of a different local gang, Solid La Solio.
We discern no abuse of discretion in the judge's denial of the motion for a new trial. See Forte, 469 Mass. at 488. It was the judge's role to assess the credibility of the witnesses who testified at the motion hearing, and we see no basis for disturbing the judge's assessments here. See Bonnett, 482 Mass. at 846-847 ("Indeed, the function of a judge assessing live testimony at a new trial hearing is to consider its credibility and materiality, as well as the appropriate weight given to it, in light of the entire trial record"); Commonwealth v. Sparks, 433 Mass. 654, 661 (2001) (judge's assessment of witness credibility on motion for new trial is "final and conclusive"); Commonwealth v. Bernier, 359 Mass. 13, 16 (1971) ("The credibility of the affiant and the witnesses [is] a preliminary matter for decision by the trial judge and his decision thereon is final"). In the absence of any credible evidence that Alvarado or Santiago testified falsely against the defendant, there was no error in the judge's rejection of the defendant's argument that Brady's and Sosa's information cast real doubt on the defendant's conviction. See Wright, 469 Mass. at 460. Accordingly, the judge did not abuse his discretion in denying the defendant's motion for a new trial. See Bonnett, supra at 848.
We are not persuaded by the defendant's argument that the judge was required to detail his findings about Alvarado's credibility, particularly where, as here, the judge's assessment of Brady's and Sosa's credibility did not depend upon a comparison of their testimony with that of Alvarado. To the extent that the judge did credit Alvardo's hearing testimony, we defer to his assessment. See Commonwealth v. Sparks, 433 Mass. 654, 661 (2001); Commonwealth v. Bernier, 359 Mass. 13, 16 (1971).
Given our conclusion, we need not reach the questions whether Brady's and Sosa's evidence, if credited, was only cumulative of other trial evidence, or would "tend[] merely to impeach the credibility of a witness." Commonwealth v. Toney, 385 Mass. 575, 581 (1982).
2. Statements of codefendant.
At trial, Santiago testified that after the shooting, Rodriguez told him that he had disposed of the gun used to shoot Quinones after breaking it into three pieces, and that the defendant was the only person who knew where one of the pieces had been left. The defendant objected to these statements on the grounds that they were inadmissible hearsay; he raises the same challenge on appeal. Our review is for prejudicial error. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
The defendant's complementary argument challenging the credibility of Santiago's testimony about these statements is unavailing. The judge, and later, the jury, were best positioned to make credibility determinations at the trial, and we note that the jury members were properly instructed on that obligation. See Commonwealth v. Carriere, 470 Mass. 1, 8 (2014) (judge determines existence of joint venture and defendant's involvement as prerequisite to admission of statement by joint venturer); Commonwealth v. Fitzgerald, 376 Mass. 402, 411 (1978) ("Credibility is a question for the jury to decide").
As an exception to the rule against hearsay, "[o]ut-of-court statements by joint venturers are admissible against the others if the statements are made during the pendency of the criminal enterprise and in furtherance of it." Commonwealth v. Winquist, 474 Mass. 517, 520-521 (2016), quoting Commonwealth v. Carriere, 470 Mass. 1, 8 (2014). This exception to the hearsay rule "is premised on a belief that '[t]he community of activities and interests which exists among the coventurers during the enterprise tends in some degree to assure that their statements about one another will be minimally reliable.'" Commonwealth v. Chalue, 486 Mass. 847, 874-875 (2021), quoting Commonwealth v. Bongarzone, 390 Mass. 326, 340 (1983). Before such a statement is admitted, the judge must find, by a preponderance of the evidence and independent of the challenged statement, that a joint venture existed. Chalue, supra at 874. If the judge admits the evidence, the jury must, before considering it, "make their own independent determination, again based on a preponderance of the evidence other than the statement itself, that a joint venture existed and that the statement was made in furtherance thereof' (quotation and citation omitted)." Id.
We are satisfied that the judge acted within his discretion in admitting the contested statements in this case. First, we reject the defendant's argument that Santiago's withdrawal from the joint venture before the murder was committed, and thus before Rodriguez told him about disposing of the gun, put the contested statements outside the hearsay exception. Even assuming that Santiago had ended his participation in the joint venture by refusing to "pop" Quinones at the defendant's direction, Rodriguez had not done so at the time of the statements. A statement need only be made by a joint venturer (provided the statement is also "made during the pendency of the criminal enterprise and in furtherance of it") to come within the hearsay exception. Winquist, 474 Mass. at 520-521, quoting Carriere, 470 Mass. at 8. Accordingly, whether Santiago was a joint venturer or not at the time the statement was made, the statement was within that exception.
We note that the judge properly instructed the jury on the requirements for consideration of statements by joint venturers.
Next, there was no error in the judge's implicit determination that at the time of Rodriguez's statements to Santiago, the joint venture was ongoing. When the statements were made, no one had yet been arrested for shooting Quinones, and Rodriguez and the other coventurers had a continuing interest in ensuring that their involvement in the scheme remained concealed. In these circumstances, the joint venture had not concluded. See Chalue, 486 Mass. at 875 (joint venturer's attempt to conceal evidence of venture supports conclusion of ongoing joint venture); Commonwealth v. Stewart, 454 Mass. 527, 537 (2009) ("Absent clear indication that the venture had ended, it is reasonable to infer that concealment of the venture was ongoing").
We are likewise satisfied that Rodriguez's statements were made in furtherance of the joint venture. Given the evidence that both Rodriguez and Santiago remained members of La Familia at the time the statements were made, the jury could properly have concluded that Rodriguez's statements were made in an effort to emphasize and strengthen Santiago's ties to the other gang members involved in the joint venture, and to encourage his cooperation in keeping the crime concealed. See Chalue, 486 Mass. at 875. If so, the statements can fairly be said to have been made to further the ends of concealing the ongoing joint venture. See id. (joint venturer's statement to one not part of joint venture admissible where statement made "to enlist [hearer's] loyalty by giving them enough information that they would feel complicit in the crimes, and therefore not speak up"); Commonwealth v. Wright, 444 Mass. 576, 581 (2005) (conversation among gang members after murder "deepen[ed] their relationship" and thus furthered joint venture); Commonwealth v. Raposa, 440 Mass. 684, 690-691 (2004) (statement by joint venturer that he had murdered victim and knew where murder weapons were hidden deepened relationship among declarant, witness, and defendant, thus furthering joint venture). Cf. Winquist, 474 Mass. at 527 (joint venturers' statements to parties "unsympathetic to the goals of the venture" not admissible under joint venture exception).
There was no error in the admission of Santiago's testimony about Rodriguez's account of disposal of the gun.
3. Testimony about teardrop tattoo.
At trial, Santiago testified that after the shooting, Rodriguez got a tattoo of a teardrop, outlined in black ink and filled in with red ink, under his eye. Santiago testified that in his experience, such a tattoo signified that the bearer had "killed someone." Alvarado was permitted to testify that he, too, saw Rodriguez's tattoo after the murder, and recognized its significance. Although at trial, the defendant objected to the foundation laid for this testimony, he raises a different and unpreserved challenge on appeal -- that the probative value of the testimony about the tattoo was substantially outweighed by the danger of unfair prejudice. See Mass. G. Evid. § 403 (2021). Reviewing the judge's admission of the disputed evidence for an abuse of discretion, we discern none. See Commonwealth v. Maldonado, 429 Mass. 502, 504 (1999).
Here, the evidence about the tattoo was relevant to establishing who shot Quinones and why, tying Rodriguez to the crime and providing support for the contention that Rodriguez was doing so because he was following the orders of the defendant, as a ranking gang member. Cf. Commonweath v. Phim, 462 Mass. 470, 477 (2012), quoting Commonwealth v. John, 442 Mass. 329, 337 (2004) ("gang affiliation evidence is admissible to show motive"). In light of the evidence that (1) the defendant, Rodriguez, and Colon were all members of the La Familia gang; (2) Colon had ultimate local authority over the defendant, while the defendant had authority to direct Rodriguez's gang activities; and (3) that the defendant dispatched Rodriguez to "go pop [Quinones]" after Santiago refused to do so, the testimony about the tattoo was probative of the defendant's involvement in the killing. See Commonwealth v. Gonzalez, 99 Mass.App.Ct. 161, 170 (2021) (gang affiliation evidence relevant to prove joint venture).
The judge limited any prejudicial effect of the evidence about the tattoo through both his oversight of the voir dire of the prospective jurors and by including strong limiting language in his final instructions to the jury. At each stage, the judge focused on minimizing the risk that the evidence of gang association would improperly or unduly prejudice the jury, and his admission of the evidence reflects a proper balancing of the probative value of the evidence against its prejudicial effect. See Gonzalez, 99 Mass.App.Ct. at 17 0.
Conclusion.
We discern no abuse of discretion or other error in the judge's denial of the defendant's motion for a new trial based on newly discovered evidence. We are likewise unpersuaded that the evidence of Rodriguez's statements about the disposal of the gun and the defendant's knowledge of it, and 13 of the fact and significance of Rodriguez's acquisition of a particular tattoo after the shooting, was improper.
Judgments affirmed.
Order denying motion for new trial affirmed.
The panelists are listed in order of seniority.