Opinion
15-P-1307
02-28-2017
COMMONWEALTH v. Yoshio STACKERMAN
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On January 10, 2009, Robert Gonzalez (the victim) was shot to death while he was inside a minivan stopped on a street in Lawrence. The killing was an execution-style slaying carried out by four men (two of whom were armed) who, within seconds of exiting a second minivan, approached both sides of the victim's vehicle and started firing shots into it. For his alleged role as one of the four men, the defendant was indicted for murder in the first degree. A Superior Court jury convicted him of the lesser included offense of murder in the second degree. Because we discern insufficient merit in the various claims that the defendant asserts on appeal, we affirm.
Sufficiency . In reviewing the sufficiency of the evidence, we, of course, view the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore , 378 Mass. 671, 677 (1979). Viewed in this light, the evidence amply supported the jury's verdict. In addition to a great deal of circumstantial evidence that the defendant was one of the four men who carried out the attack, and to evidence that demonstrated consciousness of guilt (e.g., his claiming a false alibi), two witnesses testified as to admissions the defendant made with respect to the killing. One such witness testified that the defendant had admitted that he had "caught a body for" (slang for "killed someone for") his friend Joel Javier, whom the victim had violently assaulted the previous night. The other such witness, the defendant's aunt, testified that the defendant had admitted to her that he, Javier, and two others were the four men who had gotten out of the minivan at the scene of the murder. There was also ample evidence that, regardless of whether the defendant was one of the two actual shooters, he "knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense." Commonwealth v. Zanetti , 454 Mass. 449, 468 (2009).
These admissions make this case markedly different from that of the alleged driver of the vehicle, whose conviction of murder in the first degree was overturned by the Supreme Judicial Court for insufficiency of the evidence. See Commonwealth v. Gonzalez , 475 Mass. 396 (2016).
The victim had punched Javier at a local restaurant the night before (knocking out a tooth), and on the day of the murder had offered to sell the tooth to Javier's mother. The Commonwealth's theory of the case, supported by robust evidence, was that the victim's murder was committed in direct retaliation for his having "disrespected" Javier.
The aunt testified that while the defendant admitted arriving at the scene with the others and exiting the minivan with them to approach the victim's vehicle, he claimed that before he reached that vehicle, two of the men (who had run ahead) knocked on the windows of the vehicle and commenced shooting. Thus, the aunt testified that the defendant had denied a role in the actual shooting and she specifically testified that he had told her it "wasn't supposed to happen." Of course, the jury did not have to credit this part of the aunt's testimony, or the denials by the defendant embedded in such testimony.
Absence of involuntary manslaughter instruction . The defendant submitted written requests for jury instructions before closing arguments took place. Those did not include any request for an instruction on manslaughter (voluntary or involuntary). At a sidebar colloquy that occurred after the closings, defense counsel asked, "if the jury were to believe that that wasn't supposed to happen, wouldn't that give rise to a manslaughter instruction?" The judge responded, "No. What's your theory of manslaughter?" After defense counsel answered, "I'm just up here, trying to hash it out," the judge elaborated her own view as follows:
"Okay. I don't see it. I don't see a theory of manslaughter that would entitle a defendant to an instruction. It wasn't supposed to happen—if believed it's an accident—I don't see it. I see that going more towards your argument of his participation, his state of mind and intent, but I don't see a theory of manslaughter."
Defense counsel responded: "Okay, just checking with you." Although the judge again noted her view that she did not see a theory of manslaughter presented, she made clear that she was not trying to discourage defense counsel from trying to come up with one. Defense counsel did not press the matter further. The judge proceeded to instruct the jury, without providing any manslaughter instruction. Defense counsel did not object and, in fact, stated after the instructions that the defendant was "content." The defendant now maintains that the judge's failure to instruct on involuntary manslaughter amounts to reversible error. We disagree.
That exchange was as follows:
Judge : "If you think—again—"
Defense counsel : "No, no, I just—"
Judge : "If anything, you know, I—"
Defense counsel : "I'd rather do it now, before we start instructions."
Judge : "Kudos for you—kudos for you for thinking outside the box. If you can think of anything, let me know, but I don't see it."
Defense counsel : "Okay."
We must first determine whether the absence of such an instruction could constitute error and, if so, whether the defendant preserved such a claim. As a general matter, where a defendant fails to request that a jury be instructed on a lesser included offense, the case law suggests that a judge cannot commit error by failing to give such an instruction sua sponte. See Commonwealth v. Roberts , 407 Mass. 731, 737 (1990) (judge is required to supply instruction on lesser included offenses only where such instructions are requested). However, the Supreme Judicial Court recently indicated that a judge might err in failing to give an involuntary manslaughter instruction, even when none was requested, if the facts, read in the defendant's favor, warrant it, and if the record indicates "that the defendant brought this interpretation of the facts to the judge's attention." Commonwealth v. Tavares , 471 Mass. 430, 439 (2015). For purposes of our review, we will assume arguendo that the defendant's questioning whether the evidence warranted a manslaughter instruction was enough to put before us the issue of whether the judge may have erred in failing to give that instruction.
This of course does not mean that the defendant preserved the issue and, in our view, he plainly did not. At most, he passingly raised a question of whether such an instruction was warranted. Despite the judge inviting argument on the issue, defense counsel dropped the matter, made no formal request for such an instruction, and raised no objection to the absence of one. The issue therefore was waived. See Commonwealth v. Drewnowski , 44 Mass. App. Ct. 687, 689-690 (1998) (issue regarding jury instruction waived where counsel agreed with judge's suggestion that he might provide instruction, but counsel did not request instruction or object to its omission). Our review, at most, goes to whether the absence of such an instruction created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas , 430 Mass. 8, 13 (1999). On the particular facts presented, we discern no such risk.
The defense at trial was that, although the defendant was present at the scene, the Commonwealth failed to prove beyond a reasonable doubt that he either shot the victim or participated in a joint venture to do so. In support of that defense, the defendant highlighted his aunt's testimony that he had told her, "that" (presumably the killing) "wasn't supposed to happen." The defendant now focuses on that same statement in arguing that an involuntary manslaughter instruction should have been given. From this single statement, the defendant argues that reasonable jurors could have inferred that he was acting as part of the group only in an effort to scare the victim (or, perhaps, to rough him up without causing grievous bodily harm) and that this somehow got out of hand. Viewed in its most favorable light, the defendant's argument appears to be that based on such a reading of the evidence, the jury could have viewed his actions as amounting to involuntary manslaughter, because the act of descending with guns drawn on someone who was known to be violent could be considered "wanton or reckless conduct" that caused "an unintentional, unlawful killing." Commonwealth v. Tavares , supra at 437 (defining involuntary manslaughter), quoting from Commonwealth v. Earle , 458 Mass. 341, 347 (2010).
The defendant has not asserted that there is any evidence other than his one statement to his aunt to support his reading that the group only planned to scare (or rough up) the victim. In fact, other evidence, such as the speed with which the shooting took place, tends to cut in the other direction. The question, then, is whether, in the context of this case, the single statement that it "wasn't supposed to happen" is enough to entitle the defendant to an involuntary manslaughter instruction. In our view, it is not. See Greaney & Comerford, Law of Homicide in Massachusetts § 6.3.5 (2d ed. 2016) ("A simple statement by the defendant that ‘I did not mean to do it’ would be insufficient to warrant an instruction on involuntary manslaughter"). See also Commonwealth v. Dunton , 397 Mass. 101, 103 (1986) (involuntary manslaughter instruction not required by defendant's statement to family member that he did not mean to "do it"); Commonwealth v. Alebord , 68 Mass. App. Ct. 1, 6-9 (2006) (where defendant and coventurer sought out victim for revenge, defendant's statement that he was surprised coventurer fired gun at victim "would have supported only an acquittal, not an involuntary manslaughter instruction"). Contrast Commonwealth v. Tavares , 471 Mass. at 438-439 (involuntary manslaughter instruction warranted by evidence that coventurer shot victim after grabbing gun from defendant's hand after defendant had merely pointed it at victim). Put differently, the defendant's suggested reading of the evidence—spun entirely out of his one statement that it "wasn't supposed to happen"—requires a speculative leap that we are not required to make even under the standard of viewing the evidence in the light most favorable to him. See Commonwealth v. Egerton , 396 Mass. 499, 505 (1986) ("The judge need not reconstruct all possible factual scenarios subsumed in the evidence presented, no matter how unreasonable, and charge the jury accordingly"). We discern no error in the absence of an involuntary manslaughter instruction, much less a substantial risk of a miscarriage of justice.
In this regard, we note that "[e]ven when evidence is introduced that would justify conviction for a lesser included offense, the defendant is not entitled to an instruction thereupon unless the proof on the ‘elements differentiating the two crimes [in this case, murder in the second degree and involuntary manslaughter] is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense.’ " Commonwealth v. Egerton , 396 Mass. 499, 504 (1986), quoting from United States v. Brischetto , 538 F.2d 208, 209 (8th Cir. 1976).
If the jury had believed that the defendant was not one of the shooters, the natural implication of the words "that wasn't supposed to happen" would be that the defendant did not know that his coventurers intended to shoot at the victim (which would have called for an acquittal). If the jury believed that the defendant was one of the shooters, the statement would suggest that the defendant intended to scare the victim by firing at the vehicle but did not intend to hit or kill him (which would have warranted a conviction of second degree murder).
Cellular telephone (cell phone) tower records . At trial, the Commonwealth introduced various cell phone records that detailed, for example, the defendant's use of his phone before and after the killing of the victim. The defendant lodged no objection to these records when they were introduced at trial, and therefore our review is limited to whether the admission of the records caused a substantial risk of a miscarriage of justice. See Commonwealth v. McGrail , 80 Mass. App. Ct. 339, 344 (2011).
The defendant unsuccessfully sought to exclude those records through a motion in limine lodged at trial. However, he did not raise any objection when the evidence was actually introduced, and therefore he did not preserve the objection under the law applicable at the time of trial. See Commonwealth v. Grady , 474 Mass. 715, 719 (2016) (modifying rule prospectively).
To understand the defendant's argument, some detail is necessary regarding the history of the records. In 2009, the district attorney's office initially obtained a copy of the records from the applicable phone carrier, T-Mobile. By the time the Commonwealth sought to have T-Mobile certify the phone records as business records pursuant to G. L. c. 233, § 78, the company—following its three-year retention policy—had purged the records from the central location (a shared computer drive) where they had been stored. The district attorney's office therefore sent its own electronic copy of the records back to T-Mobile with a request that these records be certified. After reviewing this copy, a T-Mobile official then provided the requested certification. In a voir dire held on the motion in limine, this person testified that while he confirmed that the records were in the same format that the company used, he otherwise essentially trusted that the district attorney's office had not sent back an altered version of what the company previously had sent it.
The essence of the defendant's argument is that the records that T-Mobile received from the district attorney's office were improperly certified as the company's business records. Although, as the defendant acknowledges, there is case law to the effect that a break in the chain of custody of business records goes to their weight, not their admissibility, the defendant argues that none of those cases deals with a situation where the business entity had purged its own records and had to rely on an outside entity to recreate them.
See Commonwealth v. Hogg , 365 Mass. 290, 294-295 (1974).
Ultimately, we need not resolve whether the records were improperly certified, because we conclude that their admission, in any event, did not cause a substantial risk of a miscarriage of justice. The defendant, who bears the burden of demonstrating that there has been a substantial risk of a miscarriage of justice, has not pointed to anything in the substance of the records that would call into doubt their accuracy. Notably, the accuracy of the records was verifiable, because—although T-Mobile had purged them from the specific "shared drive" where they officially had been kept—the records were also among a larger set of records that had been retained by the company throughout the relevant time period on a separate computer drive. Moreover, the business records statute is hardly the exclusive means for authenticating documents held by a business. See Commonwealth v. Perez , 89 Mass. App. Ct. 51, 59-60 (2016), and cases cited. The defendant has not argued, much less shown, that there were insurmountable obstacles to the Commonwealth's introducing the records through other means. In addition, although we disagree with the Commonwealth's characterization of the records as playing only a minimal role in its case, neither did they play the critical role that the defendant claims. For example, far more significant to the Commonwealth's case was the testimony regarding the defendant's admissions and his having claimed an alibi that proved false. Finally, there also was other evidence, apart from the phone records, of the close communications between the defendant and his alleged coventurers. Under all these circumstances, we do not view an error in the admission of the phone records, if any, as having caused a substantial risk of a miscarriage of justice.
See Commonwealth v. Robinson , 83 Mass. App. Ct. 419, 427 (2013), citing Commonwealth v. Dresser , 71 Mass. App. Ct. 454, 458 n.10 (2008).
That set of records had been sent by a company employee as an attachment to an electronic mail message, and the employee had not deleted the message from his "sent folder." This larger set of records was not admitted in evidence, but it was marked as an exhibit for identification, and, from all that appears, the defendant had full access to it.
The defendant also argues that the error was compounded by the judge's failure to instruct the jury, as required by G. L. c. 233, § 78, that it was for them to resolve any disputes of fact regarding the records' authenticity. See Commonwealth v. Zeininger , 459 Mass. 775, 782 n.12 (2011). There was no objection to the absence of such an instruction, and our review is therefore again limited to whether the error caused a substantial risk of a miscarriage of justice. Through cross-examination and otherwise, the defendant was able to argue to the jury that the break in the chain of custody called the reliability of the phone records into question. We are confident their verdict would not have been different had the judge specifically instructed them on this point. See Commonwealth v. Barnette , 45 Mass. App. Ct. 486, 492 (1998).
Ineffective assistance . The defendant claims that his counsel was constitutionally ineffective in three respects: (1) in allowing the introduction of evidence that the defendant had a criminal history, (2) in not requesting an instruction explaining the jury's role in evaluating the reliability of the phone records, and (3) in not requesting an involuntary manslaughter instruction.
With regard to the first claim, the record documents that defense counsel made a strategic choice to reveal that the defendant had recently been incarcerated in order to explain the circumstances of his visiting his aunt. On this record, we cannot say that this strategic choice was manifestly unreasonable, and this defeats his claim of ineffective assistance. See Commonwealth v. Kolenovic , 471 Mass. 664, 674-675 (2015). As to the second ground, because we have concluded that the absence of a jury instruction regarding the phone records did not, in any event, cause a substantial risk of a miscarriage of justice (see note 11, supra ), it also follows that the defendant is unable to show that it "likely deprived the defendant of an otherwise available, substantial ground of defen[s]e." Commonwealth v. Saferian , 366 Mass. 89, 96 (1974). As to the third claim, given that we have concluded that the absence of an involuntary manslaughter instruction did not constitute error, defense counsel was not negligent in declining to request one. See Commonwealth v. Comita , 441 Mass. 86, 94 (2004).
It appears that in one instance involving a redaction oversight, counsel inadvertently may have allowed in evidence some unnecessary detail regarding the defendant's prior incarceration. A statement that the defendant made to police about having "[done] time" was redacted from a tape of the police interview that was played to the jury, but not removed from a transcript of the tape that the jury was given to read along with the tape. However, in any event, the jury's learning that particular detail did not "result[ ] in forfeiture of a substantial defen [s]e." Commonwealth v. Saferian , 366 Mass. 89, 98 (1974). See Commonwealth v. Scheffer , 43 Mass. App. Ct. 398, 400 (1997) ("Neither the Federal nor State Constitution guarantees a perfect defense").
Our cases equate the second prong of the ineffective assistance inquiry with the substantial risk of a miscarriage of justice standard. See Commonwealth v. Azar , 435 Mass. 675, 686-687 (2002).
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Judgment affirmed .