Opinion
19-P-710
12-30-2020
COMMONWEALTH v. ROGELIO ALVARADO.
NOTICE: 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
The defendant appeals from his convictions, after a Superior Court jury trial, of two counts of assault and battery by discharging a firearm, as well as two possessory firearms offenses. The defendant was found not guilty of armed assault with intent to murder. On appeal, he argues that the Commonwealth's opening statement and closing argument included improper and prejudicial remarks. We conclude that the challenged remarks either were not improper or created no substantial risk of a miscarriage of justice. We therefore affirm the convictions.
Background. We recite the facts the jury could have found, reserving certain details for later discussion. The charges grew out of an altercation on a Massachusetts Bay Transportation Authority (MBTA) Blue Line train on a Tuesday afternoon in 2016 during which the defendant fired his pistol and wounded two other passengers. The defendant was a member or affiliate of the MS-13 gang. One of the victims, Mauricio Garcia, had at one time been affiliated with a rival gang known as 18 Street, and had gang tattoos on his hands. Garcia had pleaded guilty to manslaughter based on an incident approximately fifteen years earlier. The second victim, Santos Alarcon, was a passenger who happened to be on the train at the time of the altercation.
The gang also was referred to at trial as the 18th Street gang.
The encounter began when Garcia noticed the defendant staring at him and asked the reason. The defendant asked if Garcia was "18," referring to the 18 Street gang. Garcia responded with an insult and began to punch the defendant. The two began to struggle, the defendant tried to pull a pistol out of his pocket, and Garcia attempted to stop him from doing so. A further struggle ensued and, as the train pulled into a station and its doors opened, the gun fired several times. Both Garcia and Alarcon felt themselves get hit. Alarcon saw the defendant run toward the station exit.
There was some evidence that the defendant reached into his backpack for the pistol.
A responding officer found Garcia and Alarcon lying on the station platform. Garcia had two bullet holes in his back and Alarcon was bleeding from a wound to his forehead. The officer saw no weapon around Garcia, nor had Alarcon seen Garcia with a gun or other weapon at any time during the encounter in the train.
The defendant fled to New York, where he remained for about eighteen months until he was arrested for reckless driving. He was returned to Massachusetts and, upon arrival, was Mirandized and agreed to a recorded interview with police. In the interview, which was played at trial, the defendant was asked why he thought he was there and replied that he had "shot somebody" who was with the 18 Street gang. The defendant said that he shot because the victim had "hit me and he forced me," and that he had fired the gun one or two times. The defendant insisted that he had been "forced" to do so.
On the defendant's motion, we ordered the recording transmitted to us for viewing.
At trial, the Commonwealth's witnesses included Garcia, Alarcon, and another train passenger who had seen the altercation, Claudia Aparicio. The defendant testified in his own defense and gave a version that differed in some particulars, discussed infra, from the version in his recorded interview.
Discussion. 1. Opening statement. The prosecutor, in her opening statement, told the jury that they would hear evidence of people going about their business in a "normal ordinary world," on an MBTA train on a weekday afternoon, when gunfire broke out. The prosecutor continued:
"To understand that, I need to take you out of this ordinary world and bring you into a different kind of world, a much different kind of world; a world that is dark, that is violent, and that is dirty, and that at times it's also difficult to understand, and that world is the world of gang life."The prosecutor explained that the jury would hear that the defendant and Garcia had ties to rival gangs, MS-13 and 18 Street respectively, and that when they encountered each other on the train, it was "MS-13 on one side and 18th Street on the other." The prosecutor explained what she expected the evidence to show about the altercation, and then continued:
"[T]he world of gang life, as I said, is difficult to understand, is dirty and is violent. And Mr. Garcia has tattoos, permanent tattoos on his body, that represent his allegiance to 18th Street.
"But I ask you to keep in mind who is the person that's sitting on this table today, to not put the spotlight on the wrong person, that your job is to determine whether the defendant had a right to pull a trigger and shoot a man that was unarmed. That will be your job during the course of this case. Don't get distracted by comments regarding Mr. Garcia, because it's not clean. It's not clean. This world is not clean.
"The spotlight and this case is on the defendant and his actions and what he did in that train station. . . . Don't get distracted even when you're thrown red herrings."
After that opening statement, the prosecutor and defense counsel came to sidebar and discussed with the judge whether defense counsel would be permitted to mention Garcia's prior manslaughter conviction in his opening statement; the judge ruled that counsel could do so. Defense counsel then stated: "My colleague went into dark world when Mr. -- I thought we had excluded that, but it's out. I didn't object, so. I just want to comment on the record. I'll address it slightly." The judge agreed that "[t]here was substantial argument in the Commonwealth's opening statement that went beyond a preview of the evidence. There was not an objection. I've already explained to the jury, and I will repeat[] it, that opening statements are not evidence, but . . . ." Defense counsel replied, "That's fair."
Defense counsel then began his opening statement by addressing the issue, as promised:
"[T]hat is not why we're here. We're not here because of the dark world of MS-13 and of 18th Street gang. It's not why we're here.
"We're here because there was a confrontation between two individuals. Two. The alleged victim, this guy Garcia who was such a sweetheart to her, has a conviction of manslaughter. Oh, he's a sweet guy all right.
. . .
"This is a one [o]n one case. It's not a whole gang of world darkness. The government would like to bury him in that darkness, because the evidence is totally contrary."
On appeal, the defendant challenges the prosecutor's opening statement on a variety of grounds. We first note that these issues are unpreserved. Defense counsel himself stated that he had not objected to the "dark world" theme, that he would address it in his own opening statement (which he then did), and that it would suffice to instruct the jury again (which the judge later did) that opening statements were not evidence. We therefore review for whether any improper remarks in the prosecutor's opening statement created a substantial risk of a miscarriage of justice. See Commonwealth v. Croken, 432 Mass. 266, 268 (2000). That question turns on whether we have "a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).
We agree with the judge that the prosecutor's opening improperly went beyond a preview of the evidence and had "an unnecessarily argumentative flavor." Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 56 (2009). See Croken, 432 Mass. at 268 (opening statement is "not an opportunity for argument"). But we also agree with the judge's contemporaneous assessment, shared by defense counsel, that any prejudice would be cured by reminding the jury that opening statements were not evidence. Cf. Oliveira, supra at 56 ("[T]he lack of an objection by defense counsel is further indication that the remark was not unfairly prejudicial in tone, manner, or substance"). Moreover, defense counsel promptly responded to the prosecutor's argument with argument of his own. Neither argument should have occurred, but where both did, any risk of a miscarriage of justice is reduced.
Turning to the particulars of the prosecutor's opening, her comment that the world of gang life was violent was fully borne out by the evidence at trial and not improper. Her statement that gang life was difficult to understand could be viewed as improperly expressing a personal opinion, but, in context, it was intended as a preview of the evidence, made with "the permissible intention of asking the jury to make the imaginative leap to understand a world different from their own and to judge fairly." Commonwealth v. Dixon, 425 Mass. 223, 231 (1997).
Potentially more problematic was the prosecutor's portrayal of gang life as dark, dirty, and unclean. An opening statement should not "inflame the jury to evoke an emotional, rather than intellectual response," Commonwealth v. Tran, 460 Mass. 535, 554 (2011), i.e., should not "have the effect of engendering the jury's anger toward the defendant." Commonwealth v. Seng, 436 Mass. 537, 556, cert. denied, 537 U.S. 942 (2002). Here, however, the prosecutor's remarks were directed less at the defendant than at the milieu in which the defendant and the victim, Garcia, interacted. Although the terms "dirty" and "unclean" were better left unsaid, the Commonwealth was permitted to prepare the jury to hear unflattering evidence about Garcia's criminal history and gang associations, and to ask the jury to focus not on whether Garcia was worthy of their concern, but instead on whether the defendant's conduct toward Garcia had been lawful.
Cf. Commonwealth v. Silva, 455 Mass. 503, 515 (2009) (prosecutor's statement in closing argument, "[w]hen you prosecute a case in hell, you don't have angels for witnesses," had evidentiary basis, was not "impassioned rhetoric designed to inflame the emotions of the jury," and was permissible). Here, a further indication that the jury's emotions were not inflamed is that they acquitted the defendant of the most serious charge, armed assault with intent to murder.
The jury would have attached a similar meaning to the prosecutor's suggestion that they not "get distracted by comments regarding Mr. Garcia," "even when you're thrown red herrings." These would not have been understood, as the defendant argues, as improperly urging the jury to ignore evidence about Garcia's conduct. Rather, they would have been understood as a request that the jury not minimize the seriousness of the defendant's conduct merely because one of his victims, Garcia, might seem undeserving of their sympathy.
For all of these reasons, any error in the prosecutor's opening statement did not create a substantial risk of a miscarriage of justice. We do not have "a serious doubt whether the result of the trial might have been different had the [claimed] error[s] not been made." LeFave, 430 Mass. at 174.
2. Closing argument. The defendant challenges several statements in the Commonwealth's closing argument as improperly suggesting that he had tailored his trial testimony to conform to the Commonwealth's evidence. Typical of these was the following:
"The defendant during the course of this trial obviously sat here. He had the opportunity to see every witness walk in and hear their testimony.Because the defendant did not object at trial, we again review for whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Gaudette, 441 Mass. 762, 765-766 (2004). In Gaudette, the court reiterated the principle that "it is impermissible for a prosecutor to argue in closing that the jury should draw a negative inference from the defendant's opportunity to shape his testimony to conform to the trial evidence unless there is evidence introduced at trial to support that argument" (emphasis added). Id. at 767, citing Commonwealth v. Person, 400 Mass. 136, 140-142 (1987). Here, as in Gaudette, "there was such evidence, as we shall explain." Id.
"And when it was time for him to testify and talk to you, he realized that he was stuck with certain facts. That he only had so much room to move, and so he gave you some version, an absurd version, of what happened."
Here, in the defendant's recorded statement, he told the police that Garcia's attack had "forced" him to shoot. At trial, however, two of the Commonwealth's witnesses, Alarcon and Aparicio, testified that, after Garcia punched the defendant but before any shooting occurred, they saw Garcia move to another part of the train car, and then saw the defendant pursue him while pointing a gun at him. This testimony made it difficult for the defendant to maintain that he had been forced to shoot Garcia.
At the same time, however, Alarcon and Aparicio testified that they never actually saw the defendant fire the gun. Indeed, Alarcon backed away from his statement to the grand jury that the defendant had started the shooting; Alarcon explained at trial that this had merely been an inference on his part. This testimony freed the defendant to depart from his pretrial admissions of having fired the gun and shot somebody.
To be sure, Garcia, unlike Alarcon and Aparicio, testified that he saw the defendant shoot him. But Alarcon and Aparicio were apparently disinterested witnesses, whereas the defense was able to attack Garcia's credibility, based on his prior manslaughter conviction, his hostility to the defendant, and asserted inconsistencies in his story.
Upon taking the stand, the defendant neither claimed that he had been forced to shoot nor admitted that he had shot anyone. Instead he testified that the gun simply "fired" during his struggle with Garcia; that his hand was not on the trigger that he knew of; that he did not shoot Garcia at any time; that he saw Garcia shoot the gun "like one or two times"; that he "th[ought] the gun also went off when we were stepping out" of the train; and that he had shot the gun toward the top of the train door at some point.
These changes in the defendant's story, which made it more consistent with the testimony of two key Commonwealth witnesses and less inculpatory than his pretrial statement, furnished the requisite evidentiary basis for the Commonwealth to argue that he had tailored his testimony in response to the Commonwealth's case. See Gaudette, 441 Mass. at 767. There was thus no error in the Commonwealth's closing argument.
Judgments affirmed.
By the Court (Meade, Sullivan & Sacks, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 30, 2020.