Opinion
20-P-182
08-24-2022
COMMONWEALTH v. JUAN GAVIRIA.
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 jury trial in the Superior Court, the defendant, Juan Gaviria, charged with murder in the first degree, was convicted of the lesser included offense of murder in the second degree, in violation of G. L. c. 265, § 1; possession of a firearm, in violation of G. L. c. 269, § 10 (a.); and possession of a loaded firearm without a license, in violation of G. L. c. 269, § 10 (n)- On appeal, the defendant argues that (1) the evidence was insufficient to support a conviction of second degree murder as a joint venturer and therefore the judge erred in instructing the jury on joint venture second degree murder, (2) the judge erred in her response to a jury question and supplemental instruction by diminishing the Commonwealth's burden of proof on an essential element of second degree murder, (3) the judge erred in failing to instruct on involuntary manslaughter, (4) the admission of alleged Bowden rebuttal evidence created a substantial risk of a miscarriage of justice, and (5) there was insufficient evidence to support convictions as to the firearm charges. We affirm.
The defendant was acquitted of armed assault with intent to murder.
Background.
We summarize the facts that the jury could have found while reserving certain facts for later discussion. We view the facts, and draw all reasonable inferences therefrom, in the light most favorable to the Commonwealth. See Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S_.C., 450 Mass. 215 (2007), and 460 Mass. 12 (2011); Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
As to the defendant's argument that the jury should have been instructed on involuntary manslaughter, we view the evidence in the light most favorable to the defendant. See Commonwealth v. Pina, 481 Mass. 413, 422 (2019).
The altercation.
On January 22, 2015, the defendant and Carlos Vasquez got into a fistfight at their high school after Vasquez punched the defendant in the back of the head during class. Two teachers broke up the fight, and the students each left school for the day following the altercation. The defendant and Vasquez were each known to have gang affiliations; the defendant sold drugs for the Maverick gang (Maverick) while Vasquez was associated with a rival gang, the Eastside Money gang (Eastside). Following the fight, the defendant and others drove around trying to find Vasquez, but were unable.
The defendant was a close friend of Luis Urbaez and Urbaez sometimes introduced the defendant as his cousin. Urbaez was running Maverick during this time. Urbaez had been seen with a gun in the past. On the night of the shooting, Urbaez and another Maverick member stopped by Sharon Sacco's apartment to use her kitchen to cut large amounts of heroin. Sacco and her boyfriend, Eric Shulz, were addicted to "crack" cocaine and frequently purchased it from Vasquez. Usually, one of the pair would drive Sacco's car to Garfield Avenue in Revere and wait for Vasquez to deliver the drugs. Sacco and Shulz were paid $80 by Urbaez for the use of the kitchen.
Shulz then contacted Vasquez and arranged to buy crack from him on Garfield Ave. Shulz set up this meeting with Vasquez to buy drugs, but hours later, he told his former employer Dale Busheme that he and some others "were going to buy some drugs, like a dope deal, and I think they intended to rip off whoever they were buying it from."
Shulz drove Sacco's car to Garfield Ave. Cell phone data showed Urbaez's path of movement going from Chelsea and East Boston towards Kenmore Square between 12 A.M. and 12:35 A.M. Cell phone data also showed the defendant moving towards Boston during this same period. From around midnight until 1:43 A.M., the defendant's and Urbaez's phones were in the same area and cell phone data indicated that they were moving together around Boston, Chelsea, Everett, Revere, and Maiden.
The shooting.
Surveillance video from area businesses showed Urbaez's and Sacco's cars circling the area of Garfield Ave. between 1:50 A.M. and 1:54 A.M. Sacco's car arrived at Garfield Ave. around 1:55 A.M., while Urbaez's car continued to circle the area.
At approximately 2 A.M., James Mottola, who lived at 21 Garfield Ave., heard gunshots; he looked out his window and saw the victim in the driver's seat of a Honda. He was not moving. Mottola also saw another person, later identified as Vasquez, who appeared panicked and frantic, speaking on his cellphone. He saw Vasquez walk from behind trash barrels of a neighboring home, and then back to the Honda. Drugs and money were later recovered from behind these trash barrels.
A Shotspotter system detected gunshots at 2:08 A.M. in the area of Garfield Ave. At the same time, video footage showed Urbaez's car driving down Garfield Ave. at a high rate of speed. The footage also showed Sacco's car following directly behind Urbaez's car.
When police officers arrived, they found the victim, Andres Jaramillo, dead in his Honda on Garfield Ave. The Honda's engine was still running and the headlights were on. Vasquez was standing by the open passenger door and had no weapons on him, but did have his cellphone. There were bullet holes in the driver's side of the car. The victim suffered at least two gunshot wounds; expert testimony indicated that he was shot from outside of the car.
Aftermath of shooting.
Soon after the shooting, Shulz called Sacco to tell her that there had been a shooting on Garfield Ave. while he was purchasing crack. He was scared and nervous and told Sacco that he had been so close to the shooting that he had to lay down on the sidewalk to avoid getting hit by the flying bullets. Shulz also told Busheme that he and some others "were trying to get some dope. We were going to make a deal. A couple of us were going to rob this kid, and the gun went off, and I almost got shot."
About one-half hour after the shooting, cell phone data indicated that the defendant's and Urbaez's phones were in the same area in Cambridge, near Urbaez's home. This evidence further showed that at approximately 2:39 A.M., the defendant traveled back towards Revere, arrived home at 3:15 A.M., and remained there until 11 A.M.
The defendant called his friend, Ian Jones, who was also a member of Maverick and sold drugs with the defendant. The defendant told Jones that he had "got into some shit" and "wigged," or shot, someone named Dre. He told Jones that he ran up to the Honda and started shooting. He also said that one of the guys got out of the Honda and ran and he thought he saw somebody looking so he got back into Urbaez's car and fled the scene.
Discussion.
1. Sufficiency of the evidence for "joint venture" second degree murder.
On appeal, as he did in the trial court, the defendant contends that the evidence was insufficient to warrant a finding that he was a joint venturer with Urbaez and that no joint venture instruction should have been given. The judge denied the defendant's motion for a required finding of not guilty and, over the defendant's objection, instructed the jury on both principal and aider or abettor liability (which the judge also referred to as joint venture liability). The jury returned a general verdict finding the defendant guilty of the lesser included offense of murder in the second degree, possession of a firearm, and possession of a loaded firearm.
a. Sufficiency.
In determining whether the evidence was sufficient to support a criminal conviction, "[the] question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Latimore, 378 Mass. at 677, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). "The Commonwealth need not establish a defendant's precise role in the crime, i.e., whether the defendant acted as a principal or as an accomplice." Commonwealth v. Bonner, 489 Mass. 268, 277 (2022). As recently as last year, we rejected the proposition "that principal liability and joint venture liability are alternate theories of guilt." Commonwealth v. Gonzalez, 99 Mass.App.Ct. 161, 171 (2021). The defendant's argument that there was insufficient evidence to support a guilty finding as to joint venture liability misses the mark. The appropriate question is: did the Commonwealth present sufficient evidence that the defendant knowingly participated in the commission of the crime charged with the intent required to commit the crime? See Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009).
Second degree murder is an unlawful killing with malice. See Commonwealth v. Earle, 458 Mass. 341, 346 (2010). Malice can be proven in any one of three ways: "(1) the defendant intended to cause the victim's death; (2) the defendant intended to cause grievous bodily harm to the victim; or (3) the defendant committed an intentional act which, in the circumstances known to the defendant, a reasonable person would have understood created a plain and strong likelihood of death." Id. The jury is permitted to "infer the requisite mental state from the defendant's knowledge of the circumstances and subsequent participation in the offense" (citation omitted). Commonwealth v. Lendon, 35 Mass.App.Ct. 926, 927 (1993).
We are satisfied that there was sufficient evidence that the defendant participated with Urbaez in the commission of the crime of shooting at Vasquez with the requisite intent to kill him, but instead killed the victim. The defendant had a motive to kill Vasquez as Vasquez had punched him in the back of the head the day prior to the shooting. The defendant and Vasquez were known to be affiliated with rival gangs. The defendant believed the fight was preplanned and gang-motivated because someone in his class was recording the confrontation on a cell phone in anticipation of Vasquez's first punch. That same afternoon, the defendant and others drove around to find Vasquez. The jury reasonably could have inferred that the defendant had the requisite mental state because of his hostility towards Vasquez. See Commonwealth v. Mandile, 403 Mass. 93, 101 (1988); Commonwealth v. Longo, 402 Mass. 482, 487 (1988); Commonwealth v. Casale, 381 Mass. 167, 173-174 (1980).
That the shots hit someone other than the intended victim (Vasquez) is of no legal consequence. "If a defendant intends to kill one person, and mistakenly kills another, under the doctrine of transferred intent the defendant is treated as though he or she intended to kill the other individual." Commonwealth v. Colas, 486 Mass. 831, 837 (2021).
In addition to motive, the defendant also had the opportunity to kill Vasquez. Cell phone data placed him at the location of the killing at the time of the shooting. See Commonwealth v. Knight, 37 Mass.App.Ct. 92, 99 (1994) (evidence of defendant's location at scene and opportunity to commit murder supported jury's verdict). The jury could also have inferred the requisite intent for second degree murder based on other evidence -- there were phone calls between the defendant and Urbaez prior to the killing, and cell phone location data showed the defendant leaving the scene quickly with Urbaez and traveling with him to Cambridge just after the shooting. See Commonwealth v. Gomes, 475 Mass. 775, 781-782 (2016). See also Commonwealth v. Barbosa, 477 Mass. 658, 667 (2017) (inference of joint participation based on defendant's flight from scene less than one minute after shooting and telephone calls with suspected coventurers immediately before and within thirty minutes of shooting).
Moreover, there was consciousness of guilt evidence. On the morning after the shooting, the defendant falsely told police that he did not have access to a phone and that he had been at his girlfriend's residence all night and then went to his own home at around midnight. See Commonwealth v. Jones, 477 Mass. 307, 317 (2017) (lying to police about whereabouts at time of murder evidence of defendant's consciousness of guilt). Finally, the defendant confessed to Ian Jones that he shot and killed the victim.
Although we are mindful of the defendant's claims that there was insufficient evidence that the defendant was in a joint venture with Urbaez, we do not "examine the sufficiency of the evidence separately as to principal and joint venture liability." Commonwealth v. McCray, 93 Mass.App.Ct. 835, 842 (2018), quoting Zanetti, 454 Mass. at 468. Because the evidence was sufficient for the jury to find that the defendant participated in the murder with the requisite intent, we need not consider the defendant's precise role in the offense. See Commonwealth v. Gallett, 481 Mass. 662, 673 (2019) .
We are constrained by caselaw not to consider the sufficiency of the evidence regarding the defendant's role as an aider or abettor as opposed to being the principal. And although reviewing courts are not to undergo this type of analysis, defendants continually challenge the sufficiency of the evidence regarding "joint venture." See, e.g. Bonner, 489 Mass. at 276; Commonwealth v. Sifa Lee, 483 Mass. 531, 546 (2019); Barbosa, 477 Mass. at 664; Commonwealth v. Colton, 477 Mass. 1, 11 (2017); Commonwealth v. Rosa, 468 Mass. 231, 246 (2014); Commonwealth v. Woods, 466 Mass. 707, 712 (2014); Commonwealth v. Home, 466 Mass. 440, 446 (2013); Commonwealth v. Akara, 465 Mass. 245, 253 (2013); Commonwealth v. Benitez, 464 Mass. 686, 689 (2013); Commonwealth v. Marrero, 459 Mass. 235, 247 (2011); Commonwealth v. Housen, 458 Mass. 702, 706 (2011); Commonwealth v. Miranda, 458 Mass. 100, 113 (2010); Commonwealth v. Khan, 92 Mass.App.Ct. 487, 493 (2017); Commonwealth v. Caswell, 85 Mass.App.Ct. 463, 471 (2014).
b. Jury instructions regarding joint venture.
The defendant argues that the judge erred by instructing the jurors, over his objection, on "joint venture," because there was insufficient evidence to support it. "When there is evidence that more than one person may have participated in the commission of the crime, judges are to instruct the jury that the defendant is guilty if the Commonwealth has proved beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense." Zanetti, 454 Mass. at 467-468. For the reasons discussed supra, the evidence was sufficient for the jury to find that the defendant was a knowing participant in the crime of second degree murder with the requisite intent. The judge's decision to instruct the jurors with the language of aiding or abetting (or "joint venture") was not error.
2. Supplemental instruction.
During deliberations, the jury asked, "If the defendant's intent was to cause grievous bodily harm to the victim, but his partner decided to use a gun instead without informing him, although the defendant did know his partner had a gun, is the defendant guilty of second-degree murder under joint venture?" The defendant contends, for the first time on appeal, that the judge's supplemental instruction in response to this question improperly lessened the Commonwealth's burden of proof. We do not agree. The defendant argues that the judge omitted the phrase "beyond a reasonable doubt" in one instance when she instructed the jury about the use of a dangerous weapon during a joint venture. In reviewing a judge's instructions, we consider the totality of the instructions and interpret the instructions "as would a reasonable juror." Commonwealth v. Kelly, 470 Mass. 682, 697 (2015). The judge conveyed the same concept regarding the dangerous weapon earlier in her supplemental instruction and at that point did use the phrase "beyond a reasonable doubt."
The defendant did not specifically object on this basis, nor was his general objection that the lengthy instruction was "confusing" or "duplicative" sufficient to preserve the issue. Therefore, we review the claim to determine whether, if error, it created a substantial risk of a miscarriage of justice. See Commonwealth v. Duncan, 100 Mass.App.Ct. 635, 640-641 (2022).
"Trial judges have considerable discretion in framing jury instructions, both in determining the precise phraseology used and the appropriate degree of elaboration" (quotation and citation omitted). Commonwealth v. Ortiz, 487 Mass. 602, 612 (2021). In addition, "[a] judge need not use any particular words in instructing the juror as long as the legal concepts are properly described." Commonwealth v. Robinson, 449 Mass. 1, 8 (2007). The judge told the jury multiple times in her supplemental instruction that the Commonwealth must prove the elements of the crimes beyond a reasonable doubt. The defendant did not object to the judge's failure to use the phrase "beyond a reasonable doubt" in the context of the supplemental dangerous weapon instruction. When determining whether a jury instruction "lowers the criminal standard of proof, we consider the charge, taken as a whole, and assess the possible impact of [an] alleged error on the deliberations of a reasonable juror, i.e., whether a reasonable juror could have used the instruction incorrectly." Commonwealth v. Silva, 482 Mass. 275, 288 (2019), quoting Commonwealth v. Rosa, 422 Mass. 18, 27 (1996). We see no substantial risk of a miscarriage of justice from the judge saying seven rather than eight times during the supplemental jury instruction that the Commonwealth's burden of proof was beyond a reasonable doubt.
The defendant also argues that the supplemental instruction was illogical because it used the defendant's alleged participation in a joint venture as part of a permissible basis for inferring whether the defendant had the requisite intent for second degree murder based on his coventurer's use of a dangerous weapon (a gun). He asserts that the instruction "allow[ed] the jury to infer intent in a circumstance where it necessarily already determined that the defendant had the required intent."
While the instruction could have been clearer, the whole premise of the jury's question was that the defendant's "intent was to cause grievous bodily harm to the victim." The issue for the jury was whether that intent sufficed to convict the defendant of second degree murder. The jury's question further expressly assumed that the defendant was acting with a "partner" and knew the "partner" had a gun before the partner used it. The defendant's critique of the judge's instruction ignores the jury's express premise. Whatever minor confusion or assumed error the judge's instruction might have created on a collateral point (i.e., what could be inferred based solely on Urbaez's use of gun, if the jury found Urbaez used one) does not cause us "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) .
3. Involuntary manslaughter.
The defendant did not request, and did not receive, an instruction on involuntary manslaughter. On appeal, he argues that the evidence supported such an instruction and therefore it was error for the judge not to provide one. Because this claim was not raised below, we review it to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Duncan, 100 Mass.App.Ct. 635, 640-641 (2022). "An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not 'materially influence[]' the guilty verdict. ... In making that determination, we consider the strength of the Commonwealth's case against the defendant . . ., the nature of the error, whether the error is 'sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error,' . . . and whether it can be inferred 'from the record that counsel's failure to object was not simply a reasonable tactical decision'" (citations omitted). Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
An instruction on involuntary manslaughter is required if the evidence, considered in a light most favorable to the defendant, "would permit a verdict of manslaughter and not murder." Commonwealth v. Pina, 481 Mass. 413, 422 (2019). It is also required "if any reasonable view of the evidence would [permit] the jury to find wanton and reckless conduct rather than actions from which a plain and strong likelihood of death would follow" (quotations and citation omitted). Commonwealth v. Tavares, 471 Mass. 430, 438 (2015). The defendant's theory at trial was that another person shot the victim -- Shulz or Urbaez. Even if he was present for the shooting, he argued that he did not share the requisite intent for the killing.
The defendant points to no evidence of wanton or reckless conduct on his part that, whether he was present or not, caused the victim's death. Additionally, if the defendant was the shooter, there is no evidence to suggest that his handling of the gun was wanton or reckless, as opposed to intentional. Therefore, neither the evidence nor the defendant's theory supported an involuntary manslaughter instruction. See Commonwealth v. Alebord, 68 Mass.App.Ct. 1, 6-7 (2006) (defendant's testimony that he was surprised codefendant fired gun, if credited by the jury, "would have supported an acquittal, not an involuntary manslaughter instruction").
"[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 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. Donlan, 436 Mass. 329, 335 (2002), quoting Commonwealth v. Souza, 428 Mass. 478, 494 (1998). The defendant here points to no evidence creating such a dispute.
4. Admission of Bowden rebuttal evidence.
The defendant claims that the judge erred in admitting out-of-court testimony as Bowden rebuttal evidence. See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). Where, as here, the defendant objected at trial, we review to determine whether the introduction of the testimony was error, and, if so, whether it was prejudicial. See Commonwealth v. Sullivan, 478 Mass. 369, 375-376 (2017). "An error is not prejudicial if it did not influence the jury, or had but very slight effect" (quotations and citation omitted). Commonwealth v. Cruz, 445 Mass. 589, 591 (2005) .
"Defendants have the right to base their defense on the failure of police adequately to investigate a murder in order to raise the issue of reasonable doubt as to the defendant's guilt in the minds of the jury." Commonwealth v. Phinney, 446 Mass. 155, 165-166 (2006), citing Bowden, 379 Mass. at 486. During the defendant's cross-examination of Trooper Anthony Alestock, counsel engaged in a line of questioning about why the officers investigated certain individuals other than the defendant. Alestock's answers to the defendant's questions revealed that officers knew Urbaez was a gang leader and a "bad guy" and that they had had their eye on Urbaez for a while before developing the belief that he and the defendant traveled together to the scene of the shooting. On the following day of trial, the Commonwealth moved to admit statements to rebut the impression, created by the defendant's cross-examination of Alestock, that the police investigation was inadequate. The judge ruled that, for the limited purpose of rebutting the impression that officers prematurely focused on Urbaez, evidence could be admitted that the police received information that, on the morning of the shooting, a witness saw the defendant and Urbaez get into a silver Nissan together (Urbaez was known to drive a silver Nissan).
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement. See Mass. G. Evid. § 801(c)(2) (2022). "If a statement is offered for any purpose other than for its truth, it is not hearsay." Commonwealth v. Keown, 478 Mass. 232, 245 (2017). The out-of-court statements here were not hearsay because they were offered to explain why the police investigated Urbaez and not to prove that the defendant and Urbaez were together prior to the shooting.
The judge's decision was that the parties would "stipulate" to this evidence. However, the evidence was ultimately elicited through the testimony of Alestock.
The defendant argues that his cross-examination was not a Bowden defense; the rebuttal evidence was unnecessary and prejudicial; and its admission constitutes reversible error. Once a defendant has raised a Bowden defense, the Commonwealth may offer in rebuttal "testimony about why the investigators chose the particular investigative path they did." Commonwealth v. Wardsworth, 482 Mass. 454, 478 (2019), quoting Commonwealth v. Avila, 454 Mass. 744, 755 (2009). However, the scope of permissible rebuttal evidence must be proportionate to the defense raised. See Wardsworth, 482 Mass. at 478.
The judge, based on her observations of the cross-examination of Alestock, could reasonably interpret the questioning as a criticism that the police investigation was prematurely narrowed based solely on Urbaez's gang affiliation and criminal record. Furthermore, the judge heard lengthy argument on whether to admit rebuttal evidence, and to what extent. Its admission does not amount to an abuse of discretion. See Avila, 454 Mass. at 755.
Finally, even if allowing this testimony was an abuse of discretion, any prejudice was slight and did not affect the verdict. The judge twice gave a limiting instruction directing the jury to consider the testimony "solely to rebut any inference regarding the adequacy of the police investigation" and "not for the truth of the matter asserted." "The jury are presumed to have followed [the judge's] instruction." Commonwealth v. Cheremond, 461 Mass. 397, 414 (2012) .
5. Sufficiency of the "firearm" barrel length.
The defendant claims that the Commonwealth failed to present sufficient evidence to establish the length of the gun barrel of the murder weapon, and therefore the evidence was insufficient to support his convictions of the firearm charges. General Laws c. 140, § 121 defines a firearm as "a pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches." The length of the gun barrel is an essential element of the crime(s). See Commonwealth v. Sampson, 383 Mass. 750, 753 (1981). The defendant contends that there was no evidence presented as to the length of the barrel and therefore the Commonwealth failed to prove an essential element. We do not agree.
Circumstantial evidence alone may allow a reasonable fact finder to infer the length of a gun barrel, even in the absence of the gun itself. See Commonwealth v. Naylor, 73 Mass.App.Ct. 518, 525 (2009). Here, all the spent projectiles recovered at the scene of the crime and from the victim's body came from a weapon capable of chambering forty caliber Smith and Wesson ammunition. On cross-examination by defense counsel, a firearm expert identified a picture of a semiautomatic handgun and testified that he believed it was similar to the weapon that fired the ammunition recovered in this case. A jury may infer a barrel length of less than sixteen inches from testimony that the weapon in question was a revolver or handgun. See Commonwealth. v. Sperrazza, 372 Mass. 667, 670 (1977). The evidence was sufficient.
Judgments affirmed.
The panelists are listed in order of seniority.