Opinion
18-P-534
12-20-2019
COMMONWEALTH v. Angel SANTOS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant, Angel Santos, of armed assault with intent to murder, G. L. c. 265, § 18 (b ), assault and battery by means of a dangerous weapon causing serious bodily injury, G. L. c. 265, § 15A (c ) (i ), possession of a firearm, G. L. c. 269, § 10 (a ), possession of a loaded firearm, G. L. c. 269, § 10 (n ), and intimidation of a witness, G. L. c. 268, § 13B. The defendant raises several claims of error on appeal. For the reasons that follow, we affirm.
Background. We summarize the evidence presented at trial in the light most favorable to the Commonwealth, reserving certain details for the discussion of specific issues. On the evening of September 3, 2010, approximately twenty to twenty-five people, including Luis Gonzalez and his friend, Jason Hernandez, attended a party in an apartment building in Lowell. A man identified in court by Hernandez as the defendant also attended the party. During the party, the defendant was involved in an argument in the kitchen area. Hernandez described the kitchen area as "open" and "connected" in a manner that Hernandez could view the argument from the living room. Gonzalez was also in the living room during the argument, but made no identification of the defendant. The dispute became progressively more intense culminating in the defendant displaying a small handgun. The woman who lived in the apartment then told the defendant to leave and he went outside of the apartment building. Others followed.
The gun was described as "small" and as a "black handgun."
Outside of the apartment, Hernandez and others confronted the defendant about what had just occurred. The defendant turned around and began shooting. Gonzalez, who had retreated to the entryway of the apartment building upon hearing the initial shooting, poked his head out to see if the "coast was clear," only to see somebody holding a gun about fifteen feet away. He attempted to run but was shot three times. The defendant proceeded to stand over Gonzalez while aiming the gun at his face and unsuccessfully attempted to pull the trigger two or three more times. Unable to shoot the gun, the defendant struck Gonzalez with it. Thereafter, those who had sought to confront the defendant, including Gonzalez and Hernandez, attacked the defendant by kicking and beating him until police arrived.
Gonzalez was shot in the head, left arm/armpit area, and torso.
When police arrived, they found the defendant propped up against a parked car, severely beaten, and in a semiconscious state. The defendant and Gonzalez were transported to the emergency room where, for a period of time, they were treated in the same room but separated by a curtain. Gonzalez's mother was present in the room and heard a voice in Spanish saying, "Don't say anything. Don't say anything." Gonzalez's mother asked who the speaker was talking to, and the speaker gave a response that the mother understood to mean that he was speaking to her son.
Gonzalez's mother testified that the speaker said he was talking "to the gentleman that was laying on that bed[,] meaning my son."
Discussion. 1. In-court identification. The defendant first argues that the trial judge erred by allowing Hernandez, who did not participate in an out-of-court identification procedure and did not know the defendant prior to the party, to make an in-court identification of the defendant. In support of this argument, the defendant relies on Commonwealth v. Crayton, 470 Mass. 228, 241 (2014), which held that "where an eyewitness has not participated before trial in an identification procedure, we shall treat the in-court identification as an in-court showup, and shall admit it in evidence only where there is ‘good reason’ for its admission." However, as the defendant admits, the new rule in Crayton, 470 Mass. at 241-242, applies only "prospectively to trials that commence after issuance of this opinion." Here, the defendant's trial was completed before the Supreme Judicial Court issued the Crayton decision. While the defendant nevertheless argues for retroactive application of Crayton, we see no reason to apply it retroactively where the Supreme Judicial Court explicitly declined to give it retroactive effect and did not even apply it in Crayton itself. See Commonwealth v. Rosario, 90 Mass. App. Ct. 570, 573 (2016) ("Because the defendants' trial took place before the issuance of Crayton, the prospective rule does not apply, and instead, we evaluate the alleged errors under the law at the time of the trial"). Compare Commonwealth v. Adjutant, 443 Mass. 649, 667 (2005) (adopting new common-law rule of evidence applicable prospectively only except that defendant in Adjutant who alleged error and argued for rule on direct appeal given benefit of decision).
The Supreme Judicial Court did, however, consider the admission of the in-court identifications in the context of other prejudicial error in that case. Crayton, 470 Mass. at 246, 252-254.
The defendant also argues that, even if the Crayton rule does not apply, the identification should not have been admitted because even under pre-Crayton standards, it was unnecessarily suggestive and unreliable. Prior to Crayton, longstanding case law held that a judge should exclude an in-court identification "if it is tainted by an out-of-court confrontation arranged by the Commonwealth that is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Commonwealth v. Carr, 464 Mass. 855, 877, (2013), abrogated in part by Crayton, 470 Mass. at 241-242, quoting Commonwealth v. Choeurn, 446 Mass. 510, 520 (2006), abrogated in part by Crayton, supra.
Here, Hernandez did not participate in an out-of-court identification procedure, so it cannot be said that the in-court identification was impermissibly suggestive. Instead, under the law prior to Crayton, the in-court identification carried only " ‘a degree of suggestiveness [that] inheres in any identification of a suspect who is isolated in a court room,’ ... [which] ‘does not, in itself, render the identification impermissibly suggestive.’ " Choeurn, 446 Mass. at 519-520, quoting Commonwealth v. Napolitano, 378 Mass. 599, 604 (1979), abrogated in part by Crayton, supra. See Commonwealth v. Bastaldo, 472 Mass. 16, 31 (2015) (prior to Crayton "[a]n in-court identification was admissible in the absence of any prior out-of-court confrontation"). While even prior to Crayton an identification might still be inadmissible under common law principles of fairness, see Rosario, 90 Mass. App. Ct. at 573, exclusion was not required here where the judge conducted a voir dire of Hernandez and determined that he had seen the defendant more than once during the argument in the apartment and then later during the confrontation outside. To the extent that the defendant argues that Hernandez had been drinking on the night of the shooting, denied seeing the shooter's face in his grand jury testimony, and testified under a grant of immunity, these factors went to the weight of Hernandez's testimony, not the admissibility of the identification. See Commonwealth v. Meas, 467 Mass. 434, 453-454 (2014) (considering identification of defendant as shooter by immunized witness); Commonwealth v. Castro, 438 Mass. 160, 172 (2002) (that witness had "seen the defendant, prior to the shooting, while in a dimly lit and crowded nightclub, or in her crowded apartment, and while she had been drinking alcohol, went to the weight, and not to the admissibility of the identification, and was for the jury to assess"); Commonwealth v. Gagne, 27 Mass. App. Ct. 425, 427-429 (1989) (jury could consider weight to give in-court identifications considering all of the circumstances, including that witness had failed to make earlier out-of-court identification); Commonwealth v. Shaheen, 15 Mass. App. Ct. 302, 306 (1983) (where jury are adequately informed of plea bargain, jury could properly determine credibility and weight of testimony).
The defendant also argues that the judge applied an incorrect standard in determining whether Hernandez had an adequate basis to make an in-court identification. Even if the clear and convincing evidence standard applies in these circumstances, we have no reason to believe the judge did not apply that standard. Although when asked by the judge, the Commonwealth stated the standard was preponderance of the evidence, the judge did not merely accept the Commonwealth's input. Instead, the judge stated, "I don't think it would be beyond a reasonable doubt," but did not articulate the applicable standard the judge intended to apply. The judge articulated the reasons he concluded the in-court identification was admissible and in the absence of good reason to do otherwise, we presume the judge applied the proper standard. See Commonwealth v. Colon, 33 Mass. App. Ct. 304, 308 (1992) ("Comments made by a judge in colloquy with counsel, particularly when counsel are permitted to carry on for the purpose of persuading the judge, are not taken as tantamount to a ruling of law by the judge").
2. Immunized witnesses. a. Corroboration under G. L. c. 233, § 20I . The defendant argues that there was no corroborating evidence to support the immunized testimony of Hernandez and Gonzalez. We disagree. General Laws c. 233, § 20I, provides that "[n]o defendant in any criminal proceeding shall be convicted solely on the testimony of, or the evidence produced by, a person granted immunity ...." (emphasis added). This means that there must be "some evidence in support of the testimony of an immunized witness on at least one element of proof essential to convict the defendant." Commonwealth v. DeBrosky, 363 Mass. 718, 730 (1973). "That support may come as much in the form of corroboration of evidence of the commission of the crime as it does from proof that the defendant was a participant." DeBrosky, 363 Mass. at 730. See Commonwealth v. Fernandes, 425 Mass. 357, 359 (1997) (declining to modify holding in DeBrosky ). Contrary to the defendant's assertions, the immunized testimony was adequately corroborated by Gonzalez's medical records that demonstrated he suffered multiple gunshot wounds and testimony from the responding officers that they were dispatched to the area for gunshots and found the defendant and Gonzalez at that location wounded. See Commonwealth v. Jacobs, 6 Mass. App. Ct. 618, 622-623 (1978) (hospital record regarding location of entry wound and police testimony about weapon found near scene adequately corroborated immunized testimony that defendant had unlawfully possessed firearm and committed assault and battery by means of dangerous weapon).
b. Jury instructions. The defendant also argues that the judge failed in two respects to give adequate jury instructions with respect to the immunized witnesses. First, the defendant argues the judge should have instructed that a defendant may not be convicted solely on the testimony of immunized witnesses. However, the Supreme Judicial Court has "rejected a requirement that a judge instruct explicitly that a conviction cannot be based solely on the testimony of [an immunized] witness." Commonwealth v. DePina, 476 Mass. 614, 628 (2017). Here, as in DePina, 476 Mass. at 628, the judge properly instructed the jury that they were permitted to take into consideration a grant of immunity in assessing the witness's credibility. Second, the defendant argues that the judge failed to instruct that immunized testimony must be treated with "particular care." Although such an instruction is required in some circumstances, see Commonwealth v. Ciampa, 406 Mass. 257, 266 (1989), it was not required in a case like this based on mere reference to immunity where no agreement was introduced in evidence and no suggestion was made that immunity was conditioned on truthful testimony. Commonwealth v. Fuller, 421 Mass. 400, 413 (1995) ("Where it is unlikely that the jury were misled into accepting the veracity of the witnesses solely because of their immunization, we have not required special instructions concerning the credibility of immunized witnesses").
3. Sufficiency of the evidence. Last, the defendant argues that there was insufficient evidence to support any of his convictions. We review this claim to determine "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." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). Applying this standard, we conclude the evidence was sufficient to convict the defendant of each crime. With respect to armed assault with intent to murder, assault and battery by means of a dangerous weapon causing serious bodily injury, and the firearms offenses, the defendant's argument focuses on the absence of physical evidence (i.e., the gun) and the lack of nonimmunized testimony. However, having concluded that there was adequate corroboration to support the immunized testimony, the jury could have credited that testimony to convict the defendant. A rational jury could have found that the elements of each of these crimes were met beyond a reasonable doubt based on testimony that the defendant possessed a gun and fired it at Gonzalez several times. This testimony was sufficient for the jury to infer specific intent to kill. See Commonwealth v. Sylvester, 35 Mass. App. Ct. 906, 906 (1993) ("The jury were free to infer from the burst of shooting that whoever was firing intended mortal harm"). See also Commonwealth v. Gonzalez, 68 Mass. App. Ct. 620, 628-629 (2007) (evidence sufficient to prove armed assault with intent to murder where defendant admitted that he "drove up on ... four kids and started shooting"). Recovery of the gun on the defendant's person or in the vicinity of the crime scene was not required. See Commonwealth v. Sperrazza, 372 Mass. 667, 670 (1977) (evidence sufficient to convict defendant of unlawfully carrying firearm based on eyewitness descriptions of weapon and ballistic expert's testimony that lack of shell casings was consistent with weapon being revolver). See also Commonwealth v. Housewright, 470 Mass. 665, 680 (2015) (evidence sufficient to prove unlawful carrying of firearm in absence of physical evidence or expert testimony where witnesses testified defendant fired weapon that "looked like a gun, sounded like a gun, and flashed like a gun"). As to intimidation of a witness, the defendant argues the evidence was insufficient because the mother's testimony that somebody said and repeated, "Don't say anything," was devoid of detail such as the defendant's tone of voice. To be convicted of intimidation of a witness, actions need not be overtly threatening and the context in which an allegedly threatening statement is made may be considered. Commonwealth v. Perez, 460 Mass. 683, 703 (2011). A rational jury could have convicted the defendant based on his statement made in the presence of Gonzalez, regardless of tone of voice, where the jury could have inferred an intent to impede cooperation with law enforcement and the statement was made almost immediately after the defendant had shot him several times.
The defendant does not raise on appeal the argument made in the Superior Court, that there was insufficient evidence of a serious bodily injury to support the conviction under G. L. c. 265, § 15A (c ) (i ). See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). We note that Gonzalez testified that the shooting left him with bullet fragments inside the left side of his chest.
Although the mother did not identify the speaker behind the curtain, the jury could have inferred that it was the defendant based on Officer Fernandez's testimony that the defendant was the other patient in the room.
Judgments affirmed.