Commonwealth v. Phim
462 Mass. 470
Mass.2012Background
- Defendant convicted on retrial for second-degree murder and related firearms offenses after first trial ended in a hung jury.
- First trial instructed on elements without joint-venture liability; retrial included an accessory liability instruction.
- Shooting occurred on April 7, 2007 at 168 Fletcher Street; victim Vuthavy Phay died from gunshot wounds.
- Defendant dated Jennifer Chhea; John Sieng, Jennifer’s brother, was in the Asian Boyz gang; defendant belonged to TRG Grey.
- Testimony included Em as a possible shooter and Bunthomg’s observation of the defendant with a gun; multiple gang-affiliation context provided motive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy with accessory liability instruction at retrial | Zanetti requires broader instruction; misstep at first trial | Retrial permissible; not bound to repeat first-trial omissions | No double jeopardy violation; second-trial instruction proper |
| Admission of gang affiliation evidence | Gang evidence needed to show motive and joint venture | Prejudicial risk outweighs probative value | Admissible with limiting instructions; no abuse of discretion |
| Substitute medical examiner testimony | Hearsay from autopsy report improperly used | Examination of cause of death permissible; limited hearsay issue | Did not create substantial risk of miscarriage; cause-of-death testimony properly admitted |
| Juror no. 16 prior acquaintance with a witness | Potential bias; juror should be excused | Colloquy showed no probable bias | No abuse of discretion; juror not excused; insufficient bias evidence |
Key Cases Cited
- Commonwealth v. Zanetti, 454 Mass. 449 (Mass. 2009) (instruction to include joint venture liability consistent with holding)
- Commonwealth v. Ellis, 432 Mass. 746 (Mass. 2000) (retrials may proceed without repeating prior errors absent bad faith)
- Commonwealth v. Swafford, 441 Mass. 329 (Mass. 2004) (gang evidence admissible for motive/joint venture with balancing test)
- Commonwealth v. Nardi, 452 Mass. 379 (Mass. 2008) (hearsay limits for substitute medical examiner; independent data admissible)
- Burks v. United States, 437 U.S. 1 (S. Ct. 1978) (retrials post hung jury allowed absent bad faith)
- United States v. Jorn, 400 U.S. 470 (S. Ct. 1971) (double jeopardy considerations in retrial contexts)