Opinion
No. 11–P–1395.
2012-09-24
COMMONWEALTH v. SAVONG MOUN.
By the Court (KAFKER, KATZMANN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant was convicted of being an accessory after the fact to murder, G.L.c. 274, § 4, and perjury, G.L.c. 268, § 1. He was acquitted of four other charges, including murder in the first degree, distribution of cocaine in a public park or playground, and possession of a firearm. On appeal, he claims that the judge erroneously (1) denied his motion for a required finding of not guilty as to the perjury charge, and (2) failed to provide the jury with a special verdict slip as to the same charge. We affirm.
Background. The charges arise from gang-related shooting in Lowell. On April 7, 2007, at about 11:50 P. M., two men furtively entered the area behind the victim's apartment home; one of the men fired four shots into the rear of the apartment building. One shot passed through the exterior wall and struck the head of the victim, who was seated with his back to the wall. The victim died from the single gunshot wound shortly thereafter. A witness identified one of the men as Roth Em; Em later admitted to police that the shooter was David Phim. On April 10, 2007, the defendant provided a written statement to police detailing the events of the evening of the murder, including that he and Phim were drinking together at the time of the murder. On April 18, 2007, the defendant provided the same alibi to a grand jury. At trial, in exchange for a guilty plea to manslaughter, Em testified that he was with Phim when Phim fired the shots at the apartment building. Phim was later found guilty of second degree murder.
Discussion. a. Required finding of not guilty. The defendant first argues that the judge should have granted his motion for a required finding of not guilty because two of the “theories” of perjury put before the jury were immaterial to David Phim's murder case. The argument is without merit. The judge specifically instructed the jurors on the elements of perjury, including materiality. See Commonwealth v. White, 70 Mass.App.Ct. 71, 76 (2007). He further stressed that if the jurors found any of the statements on the indictment to be irrelevant, to not consider it. We presume that the jury followed the judge's instructions. Commonwealth v. Drummond, 76 Mass.App.Ct. 625, 631 (2010). There was no error.
In addition to the alibi testimony, the indictment also lists two other statements made by the defendant describing the events of the evening of April 7, 2007, that were later contradicted by other accounts and testimony at trial.
The judge stated to the jury: “You have to find whether one or more of these statements in here are false and the defendant knew the statement was false at the time he made it and he made it wilfully, it wasn't an accident, it wasn't a mistake. And that the statement was made material to the issue or point in question. So, if any of the statements in here were not determined by you to be material to finding David Phim guilty of murder, then those statements should not be considered even if they were in the indictment.... So, if there were any statements in here that you believe are irrelevant to [Phim's murder prosecution], don't consider them.”
b. Verdict slip. The defendant next argues that to ensure that the verdict was unanimous, the judge should have provided the jury with a special verdict slip to indicate “on which theory [of perjury] their verdict relied.” The defendant is incorrect. First, the indictment does not contain alternate “theories of perjury.” Rather, the jury could have convicted the defendant on the basis of any or all of the allegedly false statements listed on the indictment if they determined that the Commonwealth has met its burden of proof as to each statement. See Commonwealth v. Arias, 78 Mass.App.Ct. 429, 431–432 (specific unanimity instruction and verdict slip come into play only when Commonwealth has proceeded on alternate theories of guilt). Second, the judge instructed that to convict the defendant of perjury, the jurors “must collectively all agree on at least one statement in the ones given here that was made falsely and was material to the issue or point in question.” Again, there was no error.
The judge nevertheless provided the jury with a specific unanimity instruction.
We need not reach the defendant's final claim that the accessory after the fact and perjury charges are duplicative, as the defendant's argument on that claim is premised on a reversal of the perjury charge. We have nevertheless reviewed the defendant's claim, and discern no error.
Judgments affirmed.