Commonwealth v. Lugo , 89 Mass. App. Ct. 229 ( 2016 )

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14-P-1208 Appeals Court
COMMONWEALTH vs. JOSE LUGO.
No. 14-P-1208.
Suffolk. November 9, 2015. - March 18, 2016.
Present: Cypher, Trainor, & Rubin, JJ.
Assault and Battery by Means of a Dangerous Weapon. Joint
Enterprise. Evidence, Joint venturer, Knife. Practice,
Criminal, Argument by prosecutor, Instructions to jury.
Indictments found and returned in the Superior Court
Department on June 27, 2012.
The cases were tried before Linda E. Giles, J.
Jacob B. Stone for the defendant.
Matthew T. Sears, Assistant District Attorney (Megan E.
O'Rourke, Assistant District Attorney, with him) for the
Commonwealth.
CYPHER, J. The defendant, Jose Lugo, appeals from his
convictions by a jury of assault and battery with a knife,
assault and battery with a shod foot, and assault with a knife.
He argues that the trial judge's denial of his motions for a
required finding of not guilty was error because there was
2
insufficient evidence of his participation in a joint venture to
support his convictions of assault and battery with a knife and
assault with a knife. He claims error also in the prosecutor's
closing argument and the jury instructions on prior inconsistent
statements. We affirm the defendant's convictions.
Background. On April 12, 2012, friends Victor Ramos,
Milton Henriquez, Edwin Colon, and Alejandro Naranjo spent the
evening together at a Boston nightclub. At closing time, around
2:00 A.M., the four friends returned to their car, which was
parked across the street in a multilevel garage. Waiting in a
line of vehicles to exit the garage, the friends were approached
by a man from a vehicle in front of theirs who, thinking that
they had been honking the horn, punched Colon and Naranjo
through their open passenger's side windows. The four friends
got out of their car and Henriquez traded blows with the man
before being separated by the friends and others from
surrounding vehicles.
When the brawl subsided and the crowd of people who had
gathered to watch or take part in the fight began to disperse, a
sport utility vehicle (SUV) from an upper level of the garage
approached the area and stopped and two men emerged. One was a
tall, skinny man, later identified as Javier Fernandez, and the
other was a short man with braids, later identified as the
defendant. According to testimony by Ramos, the two men
3
appeared to be intoxicated and angry, "[L]ike they wanted to do
something."
After greeting and shaking hands with people from the
surrounding vehicles, the two men approached Ramos and Henriquez
and engaged them in a tense verbal exchange. During the
exchange, Fernandez and the defendant stood side by side facing
Ramos, and Henriquez stood behind Ramos, facing the defendant.
Fernandez and the defendant talked to Ramos and Henriquez, but
did not speak to one another. Ramos, attempting to defuse the
situation, suggested that they all go home and touched Fernandez
on the shoulder or arm, provoking Fernandez, who asked, "[A]re
you disrespecting me?" Fernandez left the group and went back
to the SUV while the defendant continued talking to Ramos and
Henriquez.
Returning from the SUV, Fernandez circled around the group
and, approaching Henriquez, stabbed him in the side, under his
armpit. Henriquez put his hand on Ramos's shoulder and declared
that he had just been stabbed. Ramos saw a knife in Fernandez's
hand as Fernandez stepped forward, twice jabbing the knife at
him. Ramos grabbed Henriquez and took off running up a ramp to
an upper level of the garage. Fernandez and the defendant
immediately gave chase, running shoulder to shoulder with
another man, identified only as wearing a black polo shirt. As
Ramos and Henriquez ran, Fernandez stabbed at Henriquez, who
4
stumbled and fell to the ground. Fernandez slashed and stabbed
at Henriquez and the defendant kicked and stomped on him as he
lay on the ground.
Security guard Jeffrey Swanson testified that he observed
the defendant stomping on Henriquez with the open sole of his
shoe, "like he was trying to put out a fire." While Henriquez
was being kicked and stabbed, Ramos grabbed hold of him and
tried to drag him away from the assailants. The attack, which
lasted about two or three minutes, was interrupted when security
guards arrived and ordered the men to stop.
As the security guards assessed the situation and waited
for police to arrive, they observed the defendant walking
briskly away from the scene and Fernandez throwing a knife under
a car. The two men were detained by security personnel. When
police arrived, Ramos pointed out the defendant and Fernandez as
the men who had attacked Henriquez. Sergeant Michael Talbot
testified that while the defendant was in custody at the police
station, his behavior was combative and he refused to allow
Talbot to photograph a scratch on his hand. A bloodstain taken
from the chest area of defendant's outer shirt was determined to
be consistent with Henriquez's deoxyribonucleic acid profile.
Discussion. 1. Sufficiency of the evidence. The
defendant moved for a required finding of not guilty at the
close of the Commonwealth's case and again at the close of all
5
the evidence. He claims that these motions were improperly
denied because the evidence failed to prove that he participated
in a joint venture with knowledge that his companion was armed
with a knife. In reviewing the denial of a motion for a
required finding, we examine the relevant evidence in the light
most favorable to the Commonwealth and ask whether "any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Commonwealth v. Latimore, 378
Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 433
U.S. 307, 319 (1979). "We take this view of the evidence
notwithstanding any evidence to the contrary presented by the
defendant." Commonwealth v. Garcia, 470 Mass. 24, 30 (2014),
quoting from Latimore, supra at 676–677.
In reviewing the sufficiency of the evidence on a theory of
joint venture, we must determine whether the evidence presented
supports a finding that "the defendant knowingly participated in
the commission of the crime charged, alone or with others, with
the intent required for that offense." Commonwealth v. Norris,
462 Mass. 131, 138–139 (2012), quoting from Commonwealth v.
Zanetti, 454 Mass. 449, 468 (2009). In addition, where, as
here, "the conviction on a joint venture theory is for a crime
that has use or possession of a weapon as an element," the
evidence must suffice to show that the defendant knew that his
6
coventurer was armed with a knife. Commonwealth v. Britt, 465
Mass. 87, 100 (2013).
There was testimony at trial that the defendant and
Fernandez were friends who had spent the evening together before
they arrived on the scene. The defendant participated in the
verbal exchange with Ramos and Henriquez and witnessed
Fernandez's escalating agitation during the encounter. The
defendant stood in a position, facing Ramos and Henriquez, where
he could observe Fernandez circle around and stab Henriquez in
the side. After Henriquez announced that he had been stabbed,
the jury could also have inferred that the defendant could see
Fernandez jab the knife twice at Ramos.1 The defendant
immediately took off with Fernandez in pursuit of Ramos and
Henriquez and, when Henriquez was on the ground, the defendant
kicked and stomped on him while Fernandez repeatedly stabbed
him. "At no time during this conflict did the defendant seek to
withdraw." Commonwealth v. Sexton, 425 Mass. 146, 152 (1997).
1
See Commonwealth v. White, 452 Mass. 133, 136 (2008)
(inference drawn from circumstantial evidence "need only be
reasonable and possible; it need not be necessary or
inescapable," nor must every inference "be premised on an
independently proven fact" [citations omitted]); Commonwealth v.
Lee, 460 Mass. 64, 69-70 (2011) (knowledge that coventurer is
armed may be inferred from circumstantial evidence, including
defendant's actions, prior relationship between coventurers, or
shared motive); Commonwealth v. Dosouto, 82 Mass. App. Ct. 474,
480 (2012) (circumstances properly permitted jury to infer that
defendant knew gun was used to commit robbery where defendant
getaway driver watched crime unfold).
7
From the defendant's actions, a rational trier of fact
could conclude, beyond a reasonable doubt, that the defendant
possessed the intent to engage in an assault on Ramos and in an
assault and battery on Henriquez with Fernandez, and that the
defendant was present and saw that Fernandez was armed with a
knife the moment Fernandez first stabbed Henriquez.
Additionally, the defendant was kicking Henriquez as Fernandez
stabbed at him. "There is no need to have an 'anticipatory
compact.' It is enough that 'at the climactic moments the
parties consciously acted together in carrying out the criminal
endeavor.'" Commonwealth v. Young, 35 Mass. App. Ct. 427, 435
(1993), quoting from Commonwealth v. Fidler, 23 Mass. App. Ct.
506, 513 (1987).
2. Prosecutor's closing argument. The defendant
challenges certain portions of the prosecutor's closing
argument, claiming numerous reversible errors. In particular,
he claims that the prosecutor made an improper propensity
argument, argued facts not in evidence, misstated evidence,
suggested that she had independent knowledge of the truth,
engaged in burden-shifting, and repeatedly used the term
"victim," in violation of the judge's pretrial order. The
challenged statements to which the defendant timely objected --
concerning propensity, facts not in evidence, and burden-
shifting -- we review for prejudicial error. See Commonwealth
8
v. Silva-Santiago, 453 Mass. 782, 807-810 (2009). The portions
of closing argument to which the defendant did not object but
challenges now on appeal -- concerning the suggestion of
independent knowledge, misstatement of evidence, and use of the
term "victim" -- we review for any "substantial risk of
miscarriage of justice." Commonwealth v. Alphas, 430 Mass. 8,
13 (1999). "Remarks made during closing arguments are
considered in context of the whole argument, the evidence
admitted at trial, and the judge's instructions to the jury."
Commonwealth v. Whitman, 453 Mass. 331, 343 (2009).
a. Propensity argument. Referring to evidence of the
defendant's consciousness of guilt, the prosecutor stated,
"[T]he defendant had been convicted of this behavior in the
past, resisting arrest. Well we can see that here today, right,
he tried to walk away once from the security, once from the
Boston police." To the extent that the prosecutor's remark
equated the defendant's prior conviction with a propensity to
evade responsibility in the present circumstances, it was
improper. "It is a fundamental rule that the prosecution may
not introduce evidence that a defendant previously has
misbehaved, indictably or not, for the purpose of showing his
bad character or propensity to commit the crime charged."
Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 312 (2011),
quoting from Commonwealth v. Baker, 440 Mass. 519, 529 (2003).
9
See Commonwealth v. Chartier, 43 Mass. App. Ct. 758, 763 (1997)
(in using defendant's prior convictions in substantive sense,
"prosecutor strayed over boundary of permissible argument").
Whether the prosecutor's propensity argument constitutes
reversible error "depends on our consideration of (1) whether
the defendant seasonably objected; (2) whether the error was
limited to collateral issues or went to the heart of the case;
(3) what specific or general instructions the judge gave the
jury which may have mitigated the mistake; and (4) whether the
error, in the circumstances, possibly made a difference in the
jury's conclusions." Silva-Santiago, supra at 807, quoting from
Commonwealth v. Perez, 444 Mass. 143, 151 (2005).
As the defendant objected to the prosecutor's argument, we
review for prejudicial error. The improper statement addressed
only a collateral issue, that is, the defendant's consciousness
of guilt, as opposed to any essential element of the crimes
charged. See Commonwealth v. Jones, 432 Mass. 623, 629 (2000)
(prosecutor's erroneous remark was aimed only at collateral
issue, not heart of defendant's case). Both before and after
closing arguments, the judge instructed the jury that those
arguments are not a substitute for evidence. See Commonwealth
v. O'Connell, 432 Mass. 657, 660 (2000), citing Commonwealth v.
Thomas, 400 Mass. 676, 683 (1987) (prosecutor's inaccurate
statement "regrettable," but not reversible error "where judge
10
instructed jury that closing arguments [are] not evidence").
Viewed in the context of the prosecutor's entire argument, the
judge's instructions to the jury, and the evidence at trial, an
isolated reference to the defendant's prior conviction, a fact
that defense counsel had preemptively introduced through the
defendant's testimony, did not make a difference in the jury's
conclusion.
b. Facts not in evidence. The defendant next argues that
the prosecutor's description of "a fresh scrape with blood on
it" on the defendant's finger improperly suggested a fact not in
evidence. "A prosecutor must limit comment in closing statement
to the evidence and fair inferences that can be drawn from the
evidence." Commonwealth v. Cole, 473 Mass. 317, 333 (2015),
quoting from Commonwealth v. Kelly, 417 Mass. 266, 270 (1994).
Contrary to the defendant's assertion, the prosecutor's
description did not introduce a fact not found in evidence.
Rather, it directly reiterated testimony presented at trial. We
discern no error.2
2
Sargent Talbot's testimony included the following
exchange:
Q.: "Okay how could you tell the scratch on Mr. Lugo's hand
was fresh?"
A.: "It had fresh blood on it; it had a redness around the
cut itself that led me to believe that it was something
that occurred recently as opposed to something that was a
day or two old."
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c. Burden-shifting. The defendant objected also to what
he characterizes as burden-shifting by the prosecutor. He
contends that, in telling the jury to weigh the defendant's
testimony against the testimony of the Commonwealth's witnesses,
the prosecutor impermissibly suggested that the defendant has an
affirmative duty to produce evidence of his innocence.3 A
prosecutor may not "make statements that shift the burden of
proof from the Commonwealth to the defendant." Commonwealth v.
Johnson, 463 Mass. 95, 112 (2012), quoting from Commonwealth v.
Amirault, 404 Mass. 221, 240 (1989). However, a "prosecutor is
entitled to emphasize the strong points of the Commonwealth's
case and the weaknesses of the defendant's case." Id. at 113,
quoting from Commonwealth v. Feroli, 407 Mass. 405, 409 (1990).
Here, the prosecutor's statement emphasized the discrepancies
between the defendant's testimony and the testimony of all the
other witnesses. While the prosecutor's statement, "there is no
corroboration for his version," is a type of statement to avoid,
the argument as a whole cannot be properly characterized as
3
Commenting on the defendant's credibility, the prosecutor
told the jury:
"Think of the interest he has, he's the only evidence; his
version is the only evidence that presents him breaking up
a fight. Think of the interest he has in the outcome of
the case and why would he want you to believe that version
verses [sic] all the other witnesses, all the other
evidence you sat through the last couple of days. I submit
to you there is no corroboration for his version."
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burden-shifting, but, rather, as a fair comment on the
credibility of the defendant. See Commonwealth v. Storey, 378
Mass. 312, 325 (1979), cert. denied, 446 U.S. 955 (1980) ("The
prosecutor's objective, as revealed in the context of [her]
closing argument, was simply to defend [her] credibility, and
that of [her] case, by pointing out contradictions and
inconsistencies in the witness's testimony").
d. Independent knowledge of the truth. The defendant
argues for the first time on appeal that the prosecutor
improperly suggested to the jury that she had independent
knowledge of the truth when she asserted that the Commonwealth's
witnesses were credible "because they told you what actually
occurred."4 As the defendant did not object to this portion of
the closing argument, we review the statement for a substantial
risk of miscarriage of justice. See Alphas, 430 Mass. at 13.
"Improper vouching can occur if an attorney expresses a
personal belief in the credibility of a witness, or indicates
that he or she has knowledge independent of the evidence before
the jury." Commonwealth v. Wilson, 427 Mass. 336, 352 (1998).
Here, consideration of the argument as a whole persuades us that
the "prosecutor did not imply that [s]he had 'special knowledge
4
The prosecutor told the jury: "I submit to you the
victims are credible not only because they told you what
actually occurred[,] but they are supported by the evidence of
the other witnesses."
13
by which [s]he could verify the witness's testimony.'"
Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 189 (2009),
quoting from Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989).
Rather, her statement was part of an appeal to the jury to draw
the reasonable conclusion from the witnesses' conforming
testimony that those witnesses should be believed, a proper line
of argument where credibility is at issue. See Commonwealth v.
Deloney, 59 Mass. App. Ct. 47, 52 (2003) (prosecutor's comments
did not suggest that she possessed knowledge of facts not
contained in evidence).
e. Misstatement of evidence. The prosecutor asserted in
closing that the defendant's story was not believable in part
because, had he been involved in breaking up a fight as he
claimed to have been, "there would be more injuries, there would
be more bruising."5 The defendant now contends that, in light of
Sargent Talbot's testimony that bruising takes a day or two to
appear, the prosecutor misstated the evidence. We conclude that
there was no error. "In closing argument, counsel may argue
from the evidence and may argue fair inferences that might be
drawn from the evidence. Counsel also may call on the
experience and common knowledge of the jury. Moreover, it is
proper for counsel to use analogy, example and hypothesis as an
5
The prosecutor stated: "I submit to you that if he was
really breaking up a fight as he would want you to believe,
there would be more injuries, there would be more bruising."
14
aid to effective and aggressive argument." Commonwealth v.
Ridge, 455 Mass. 307, 330 (2009) (citations and quotations
omitted). See Commonwealth v. Donovan, 422 Mass. 349, 357
(1996) (prosecutor has right to argue inferences from evidence
favorable to his case).
f. Use of the term "victim". Referring to Ramos and
Henriquez, the prosecutor used the term "victim" eleven times in
the course of her closing argument. In view of the judge's
allowance of the defendant's motion in limine prohibiting the
use of the term in favor of "alleged victim," the prosecutor's
use of the term was error. Although defense counsel raised
objections to certain other portions of the prosecutor's closing
argument, he did not object to her characterization of the
witnesses as "victims." Therefore, "the proper standard of
review is whether the error[] created a substantial risk of a
miscarriage of justice." Commonwealth v. Letkowski, 469 Mass.
603, 617 (2014).
The absence of an objection also guides our analysis as to
whether the lapse was prejudicial to the defendant in the
circumstances. "We consider . . . the lack of objection at
trial as 'some indication that the tone [and] manner . . . of
the now challenged aspects of the prosecutor's argument were not
unfairly prejudicial.'" Dodgson, 80 Mass. App. Ct. at 313,
quoting from Commonwealth v. Lyons, 426 Mass. 466, 471 (1998).
15
"This is especially true, where, as here, contemporaneous
objections were made to the prosecutor's summation."
Commonwealth v. Walker, 421 Mass. 90, 104 (1995).
Moreover, in the context of the evidence at trial, any risk
of a miscarriage of justice was mitigated by the defendant's
stipulation to the fact that Henriquez was stabbed on that
occasion by the defendant's friend, Fernandez. Thus,
Henriquez's identity as a victim was not in question, only the
defendant's culpability in that attack. We are confident that
the error, in these circumstances, did not create a substantial
risk of a miscarriage of justice.
3. Judge's instruction on prior inconsistent statements.
The defendant claims that the judge's instruction on prior
inconsistent statements was unclear and failed to provide the
jury with a proper understanding of how such statements may be
considered. At trial, defense counsel objected to the judge's
charge limiting the use of prior inconsistent statements to
credibility purposes, and requested, instead, an instruction
permitting the jury to consider inconsistent statements made to
the grand jury for their substantive value.
The judge's instruction on prior inconsistent statements,
though somewhat ambiguous, limits consideration of such
statements to credibility purposes:
16
"If you determine the witness's prior statement differs
significantly from his or her present testimony[,] the
prior statement is relevant only as to the witness's
credibility and you may not take it as any proof of any
fact contained in it except in the case of a parties [sic]
prior statement."
As a general rule, a trial witness's prior inconsistent
statements are not admissible for their substantive truth. See
Mass. G. Evid. § 613(a)(2) (2015). However, "[w]hen a trial
witness offers testimony that is directly inconsistent with that
witness's testimony before the grand jury, the inconsistent
grand jury testimony may be introduced substantively if certain
foundational requirements . . . are met." Commonwealth v.
Santos, 463 Mass. 273, 294 (2012). See Commonwealth v. Daye,
393 Mass. 55, 75 (1984); Mass. G. Evid. § 801(d)(1)(A) (2015).
Here, defense counsel confronted three of the
Commonwealth's witnesses with grand jury statements that he then
sought to have considered substantively.6 The defendant asserts
6
Defense counsel introduced seven grand jury statements
into trial testimony:
(1) Henriquez told the grand jury that while he was engaged
in a fight (before the defendant arrived on the scene), he
pushed an adversary toward the railing; at trial, he
testified that he grabbed the man.
(2) Referring to the defendant and Fernandez, Henriquez
told the grand jury, "I was pushing him away, I was trying
to push him away so trying to kick" and "basically trying
to get him away but they didn't stab me again, they
didn't"; at trial, he testified to being stabbed while on
the ground, then kicked.
17
that the prior statements have substantive value because they
corroborate his account of events. Accepted for their truth and
as substantive evidence, the statements establish that Henriquez
was drunk at the time of the attack; he aggressively engaged in
a brawl before the defendant arrived on the scene; both the
defendant and Fernandez had knives and participated in stabbing
Henriquez; besides the defendant and Fernandez, a third man
(3) Before the grand jury, Henriquez related that he had
reported to a police officer that "[the defendant] was
trying to stab me too because at the moment I just seen
someone swinging a knife. It felt like they were both
trying, they were -- both had knives"; at trial, on
redirect, the prosecutor introduced the omitted portion of
the grand jury statement, in which Henriquez said: "I was
clearing out my thoughts, I believe it was just the one
[stabber]."
(4) Henriquez told the grand jury that he was chased by
three men, but testified at trial that only the defendant
and Fernandez chased him.
(5) Naranjo told the grand jury that Henriquez and an
adversary were "both drunk that it wasn't much of a fight,
it kind of like pushing and misses and swings"; at trial,
he testified, "I don't know how much he [Henriquez] drank
so I can't say he was drunk."
(6) Naranjo told the grand jury that, after the first bout
of fighting died down, Henriquez and his adversary "started
running at each other again, now a bigger scuffle
happened"; at trial, he testified that a group of
adversaries started pushing Ramos and Henriquez, reigniting
the fight.
(7) Swanson told the grand jury that he observed "the
victim pulled out by his friend and the other two are sort
of on the tail end, they are sort of maybe lightly
kicking"; at trial, he described the defendant's kicking as
"stomping down with the open soul [sic] of the foot."
18
chased Henriquez up the garage ramp; once on the ground,
Henriquez was not stabbed again; and, when security guards
arrived, the defendant and Fernandez were kicking Henriquez
lightly. None of these statements, considered for their truth
as substantive evidence, benefits the defendant's case.
Consequently, "[o]n the record before us, no prejudicial error
arose from the judge's decision not to instruct the jury that
they could consider prior inconsistent statements for their
substantive value." Commonwealth v. Fritz, 472 Mass. 341, 353
(2015).
Finally, for the first time on appeal, the defendant claims
that a series of other, unsworn, prior inconsistent statements
should also have been considered substantively, and that the
judge's instruction to the contrary created a substantial risk
of miscarriage of justice.7 While the defendant is correct in
7
The defendant points to ten prior inconsistent statements
made to police or medical personnel:
(1) Ramos told a police officer that he touched the
defendant's shoulder and said, "hey, bud, let's calm this
down";
(2) Ramos also told police that the defendant and Fernandez
both stabbed Henriquez;
(3) and (4) Henriquez, too, told police that both the
defendant and Fernandez stabbed him;
(5) and (6) Henriquez told a police officer that he saw two
individuals with knives, and that he distinctly remembered
seeing the defendant with a knife;
19
asserting that prior inconsistent statements may properly be
considered for their truth if admitted without objection, see
Mass. G. Evid. § 613(a)(2), these statements, considered
substantively, do not constitute evidence favorable to the
defendant. The conflicts between trial testimony and prior
statements served, rather, to focus the jury's attention on the
credibility of the Commonwealth's witnesses. In view of this,
we discern no risk of miscarriage of justice arising from the
judge's instruction.
Judgments affirmed.
(7) Henriquez told a police officer that four to six
unknown men initiated the brawl in the parking garage;
(8) and (9) Henriquez's medical records indicted heavy
alcohol use and a diagnosis of closed head injury; and
(10) Henriquez told medical personnel that he did not see
his assailants.