A Superior Court jury found the defendant, Ley-ton Burgos, guilty of being an accessory before the fact to the murder in the first degree of Sylvia Ramirez. The defendant appeals from his conviction and from the denial of his motion for a new trial. He argues there were errors relating to the testimony of two key prosecution witnesses; the trial judge’s instruction concerning consciousness of guilt was erroneous; and his trial counsel was ineffective in several respects. The defendant raises other claims that we discuss infra. For the reasons discussed
1. Background, a. Evidence at trial. We recite the facts as the jury could have found them. In May of 1994, the defendant was a member of Los Solidos, a gang active in the city of Springfield. At that time, Los Solidos was “at war” with rival gangs, including La Familia and the Latin Kings. The conflicts between the gangs arose from disputes over drug territory. The victim, Sylvia Ramirez, was a member of La Familia, serving as that gang’s “godmother.”
Members of Los Solidos often congregated and socialized at the apartment of Jessica Nieves, located at the comer of State and Terrence Streets in Springfield. On May 27, 1994, the day before Ramirez was killed, approximately fifteen members of Los Solidos, including the defendant, gathered at Nieves’s apartment. Erasmos Santos Vega, a “soldier” in Los Solidos, was also at the apartment that day. (Soldiers held the lowest rank in the strict hierarchy of Los Solidos.) Vega made his living stealing cars; he also stole them for Los Solidos. The defendant told Vega of his desire to be elevated to the position of “chiеf warlord” by the “president” of Los Solidos, Miguel Moure, and that it would be necessary to “hit five people” to be promoted.
Later that day, Moure made an appearance at Nieves’s apartment. After saluting Los Solidos members present, Moure went into the apartment’s bathroom with the defendant and discussed the need to “do something.” The defendant subsequently sum
At some point after the end of the meeting in the bedroom, the defendant and another member of Los Solidos took out two guns — referred to as the “Chrome 9” and the “44” — belonging to Los Solidos that were stored in Nieves’s bedroom. The defendant cleaned the “Chrome 9” and some ammunition before reinserting the ammunition in the gun. Later the same night, Vega stole a car from a parking lot in Holyoke, drove the car back to Springfield, and parked it in a prearranged location.
The next day, May 28, three members of Los Solidos — Wilfredo Rosado, Jose Carrasquillo, and Travis DeJesus — met on High Street in Springfield, outside of Dejesus’s apartment. DeJesus held the position of a “warlord” in Los Solidos; Rosado and Carrasquillo were both soldiers. Among Dejesus’s responsibilities was distributing weapons for Los Solidоs missions. To that end, DeJesus provided the “Chrome 9” firearm to Carrasquillo. Rosado, Carrasquillo, and DeJesus were then joined by the defendant, who asked DeJesus if Rosado and Carrasquillo knew “what was up.” DeJesus confirmed that the two knew “what to do”; Rosado testified at trial that he had understood the goal of the mission was to kill a member of La Familia on Locust Street.
The defendant, Rosado, and Carrasquillo then retrieved the car that Vega had stolen the day before. They departed for the mission, with Rosado driving, Carrasquillo occupying the front passenger seat, and the defendant sitting in one of the rear seats.
Rosado drove down Locust Street a first time, and saw two different groups of people congregated outside: a group containing some children, and another that included some La Familia gang members, identifiable by their gang colors. When Rosado drove down the street a second time, only the group of La Fa-milia members remained outside. Rosado then slowed down as he approached the group of La Familia members, and Car-rasquillo pointed the “Chrome 9” out of the window and fired five or six shots. Ramirez, who was sitting on the front steps of 190 Locust Street with several friends, was struck on the right side of her head by a projectile fired from the “Chrome 9”; the projectile may have ricocheted off of a hard surface before striking her. After the shooting Rosado drove the vehicle to Edwards Street in Springfield, where he and Carrasquillo wiped it down and set it on fire. Ramirez died as a result of a brain injury sustained from the gunshot wound.
Three weeks later, on June 20, 1994, two Springfield police officers went to Nieves’s State Street apartment to retrieve Rabióla Ocampo, a fifteen year old girl who was classified as a “runaway,” and who they suspected was staying in the apartment with Nieves. When the officers arrived, they knocked on the door and identified themselves. At the time there was a group of more than ten people gathered in the apartment. The defendant was present and was holding the “Chrome 9” that had been used by Carrasquillo on May 28. Looking through the door’s peephole, the defendant observed the police, quickly
Approximately one week after the police came to Nieves’s apartment, Gonzalez went to Puerto Rico, where she stayed with the defendant’s mother. In early July, the defendant also departed for Puerto Rico, joining Gonzalez and staying with his mother. Two months after their arrival in Puerto Rico, Gonzalez and the defendant ended their relationship. Gonzalez was picked up by her father and returned to Springfield; the defendant remained in Puerto Rico.
b. Other facts.
Indictments of these four individuals followed, although not all at the same time. The defendant was initially indicted for conspiracy to commit murder on September 13, 1994. In June of 1995, he was arrested in Puerto Rico on the conspiracy charge and extradited to Massachusetts. On January 11,1996, the defendant was indicted as an accessory before the fact to murder, G. L. c. 274, § 2. Moure, Carrasquillo, Rosado, and Vega also
Rosado, who had been charged with murder аnd conspiracy to commit murder, later entered into a “cooperation agreement” with the Hampden County district attorney’s office, pursuant to which he testified at the three trials just described. Rosado later pleaded guilty to conspiracy and so much of the murder indictment as would constitute manslaughter, and was sentenced to from twelve to fifteen years in State prison. Vega had been charged as an accessory before the fact to murder and conspiracy to commit murder. Vega testified as a witness for the prosecution at the defendant’s and Moure’s trials. Vega subsequently pleaded guilty to the conspiracy charge and to so much of the accessory charge as would constitute manslaughter, and was sentenced to from nine to ten years in State prison.
The defendant’s appeal was entered in this court on February 23, 1998; on September 21, 1998, the court granted a stay of his appeal to allow the defendant to file a motion for a new trial. That motion was not filed in the trial court until May 5, 2008. The trial judge held a nonevidentiary hearing on the motion in March of 2009, and thereafter denied it in a comprehensive memorandum of decision. The defendant’s appeals from his conviction and the denial of his new trial motion have been consolidated.
2. Discussion. When this court reviews a defendant’s appeal from the denial of a motion for a new trial in conjunction with his direct appeal from an underlying conviction of murder or accessory before the fact to murder in the first degree, we review both under G. L. c. 278, § 33E (§ 33E). See note 1, supra. See, e.g., Commonwealth v. Gomez,
a. Testimony of Rosado and Vega. A number of the defendant’s claims of error concern the trial testimony of Rosado and Vega. Specifically, he argues that the prosecutor knowingly and improperly failed to correct allegedly false testimony by these witnesses about their cooperation agreements; and his trial counsel was ineffective in not challenging the admissibility of Rosado’s and Vega’s testimony on several different grounds. The defendant’s claims relating to the testimony of Rosado and Vega were the subject of his motion for a new trial. We review the motion judge’s decision for abuse of discretion, see, e.g., Commonwealth v. Goodreau,
(i) Claim of prosecutorial misconduct: misleading testimony concerning nature and terms of cooperation agreement. At trial, Rosado testified pursuant to his cooperation agreement with the district attorney’s office. His testimony provided details concerning the May 27, 1994, meeting of Los Solidos members in Nieves’s apartment and stаtements he heard the defendant make at that time concerning the mission to kill Ramirez; Rosado’s conversation on May 28 with the defendant, Carrasquillo, and DeJesus; and the actual execution of the mission on May 28, including driving the car stolen by Vega to Locust Street where Ramirez was killed, and the defendant’s exit from that car before Rosado and Carrasquillo reached Locust Street. Vega similarly testified under his cooperation agreement. His testimony included, as topics, the May 27 meeting in Nieves’s apartment, the defendant’s desire to be elevated to the position of chief
Rosado stated, in response to questions on direct examination by the prosecutor about Rosado’s understanding of his cooperation agreement, that his cooperation would be “taken into consideration,” and “for all I know, I’m doing life.” On cross-examination he stated that “[tjhere was no deal worked out,” but confirmed that he was “hoping for some consideration from the District Attorney’s office.” The defendant asserts that this testimony was false and misleading in relation to the true terms of the agreement that Rosado’s counsel in fact had worked out, and the prosecutor’s presentment of the false view through Ro-sado violated the defendant’s due process rights. The defendant asserts that Vega failed to reveal that, in exchange for a written statement provided to police on August 26, 1994, the “prosecution team” intervened and postponed for two weeks his being sent to a State prison to serve a sentence imposed in a separate case in a different county, during which time he was held in custody in one and then a second county jail.
The motion judge rejected these claims, determining that the entire sum and substance of the Commonwealth’s agreement with each witness was that the witness would be given “consideration” in exchange for his testimony, “and nothing more.” The judge further concluded that the prosecutor had not misled the jury by declining to correct the witnesses’ statements that they were not aware of any “deal” made by their lawyers with
A defendant’s due process rights are violated where the prosecution does not disсlose evidence that is material to the issue of guilt, including “[ejvidence tending to impeach the credibility of a key prosecution witness . . . .” Commonwealth v. Hill,
The record supports the motion judge’s analysis and subsequent rejection of the defendant’s claims of prosecutorial error and violation of the defendant’s due process rights. There is no dispute that the prosecutor informed the defendant’s counsel before trial that both Rosado and Vega had entered cooperation agreements with the Commonwealth. Moreover, the prosecutor explicitly stated in his opening that both Vega and Rosado had done so, and made the point again in his direct examination of each witness. As the judge found, nothing in the record indicates there was any specificity to either cooperation agreement beyond a commitment by the district attorney that “consideration” would be given to the witness with respect to resolution of the pending charges against him after he testified.
(ii) Admissibility of Rosado’s testimony. The defendant argues that Rosado improperly agreed to testify to a specific version of events in exchange for consideration, irrespective of the truth.
As indicated, the defendant presented this claim in his motion for a new trial. The judge reviewed the portion of Rosado’s testimony in the Carrasquillo trial on which the defendant premised his claim in the context of the entirety of Rosado’s testimony at that trial,
The judge’s consideration of what approach was taken to Rosado’s similar testimony introduced at the two previous and related trials was appropriate. See Commonwealth v. Rosado,
(iii) Voluntariness of Vega’s statements. The defendant argues that Vega’s trial testimony should have been suppressed and not presented at trial because it was derived from Vega’s statements to the police that were made involuntarily.
As a general matter, “persons not themselves the victims of illegal government conduct typically lack standing to assert the constitutional rights of others.” LaFrance v. Bohlinger,
b. Consciousness of guilt instruction. At trial, the judge, over the defendant’s objection, instructed the jury on consciousness of guilt. On appeal, the defendant challenges the fact that the instruction was given, as well as its contents. His challenge to
A consciousness of guilt instruction is permissible where “there is an ‘inference of guilt that may be drawn from evidence of flight, concealment, or similar acts,’ such as false statements to the police, destruction or concealment of evidence, or bribing or threatening a witness.” Commonwealth v. Stuckich,
We turn to the contents of the instruction given. The defendant argues that the judge misstated vital facts when he told jurors that they had “heard evidence suggesting that the defendant may have fled from Massachusetts after he discovered that he was about to be charged with the offense for which he is now on trial” (emphasis added). As just stated, the evidence at trial would permit an inference that as of June 20, 1994, the defendant was aware the police might connect him in some way to the murder of Ramirez, but we agree that there was no evidence the defendant fled the Commonwealth “after he discovered that he was about to be charged” with accessory before the fact to murder; this portion of the judge’s charge was erroneous.
Despite this error, no substantial likelihood of a miscarriage of justice was created because the judge’s misstatement of the evidence was unlikely to have influenced the jury’s decision.
c. Ineffective assistance of counsel. We have reviewed a number of the defendant’s ineffective assistance claims in earlier sections of this opinion; we consider the remaining claims here. The defendant argues that the decision of triаl counsel to call as a defense witness Ricardo Negron, a newly-joined member of Los Solidos in May of 1994, was manifestly unreasonable and constituted constitutionally ineffective assistance of counsel. See Commonwealth v. Zagrodny,
Here, the motion judge found that counsel’s decision to call Negron could not be deemed manifestly unreasonable, because counsel believed, based on the interview his investigators conducted with Negron, that Negron would testify that no meeting occurred in Nieves’s apartment on May 27,1994 • — • testimоny that could reasonably be thought to help undermine the Commonwealth’s theory of the case and the credibility of the various witnesses called by the Commonwealth who testified that the plan to murder Ramirez was formed on May 27, and the defendant was the one who gave the orders to carry it out.
It is true that Negron did not testify wholly as the defendant’s trial counsel expected. The defendant on appeal argues that Negron’s testimony “effectively destroyed the defense,” and even if Negron had testified in accordance with the report provided to defense counsel by his investigators, the effect “would have been only slightly less devastating.” These broad, conclusory statements do not persuadе us that the motion judge’s characterization of defense counsel’s decision to call Negron was in error; as the judge stated, in the end, while one might conclude that Negron had not helped the defendant and even may have harmed his case, such an “observation is made with the benefit of 20/20 hindsight.” But what matters in evaluating counsel’s trial strategy is whether the plan to call Negron was unreasonable “when made” (emphasis added). Commonwealth
d. Prosecutor’s opening statement and closing argument. The defendant argues that the prosecutor made several improper assertions and arguments in his opening statement and closing argument that, considered together, deprived the defendant of a fair trial and require reversal of his conviction. He takes exception in particular to what he describes as the prosecutor’s (1) repeated, inflammatory references to and characterizations of gangs and the defendant’s immersion in the violent gang world — a tactic, the defendant contends, that improperly urged guilt by association; (2) unjustified attacks on the defendant’s counsеl; and (3) insertion and use of facts not in evidence. We analyze the defendant’s claim “in light of the entire argument, as well as in light of the judge’s instruction to the jury and the evidence at trial.” Commonwealth v. Rodriguez,
(i) The prosecutor’s opening statement, and to a greater extent, his closing argument, included vivid characterizations of gangs and what he described as gang life and the world of gangs — in his words, life “inside the belly of the beast.” Enthusiastic rhetoric is permissible, see, e.g., Commonwealth v. Costa,
(ii) In his closing, the prosecutor stated that members of La Familia “knew” that Ramirez had been killed by members of Los Solidos, and in effect told the jury that Negron was shot shortly after the Ramirez murder by La Familia members seeking to avenge the killing. Defense counsel did not object to this assertion. We agree with the defendant that there was an insufficient factual foundation for the inference asserted by the prosecutor, namely, that within one hour after Ramirez’s murder, La Familia members had substantive knowledge that Los Solidos was responsible for the murder, and La Familia therefore shot Negron in retaliation. Even if the evidеnce were sufficient to support an inference that La Familia members harbored suspicions of Los Solidos members’ involvement in Ramirez’s death, it was improper for the prosecutor to suggest that these suspicions equated with proof that members of Los Solidos were in fact responsible for the murder. However, the prosecutor’s improper statement warrants reversal only if it prejudiced the defendant in light of the prosecutor’s entire argument, the trial testimony, and the judge’s instructions to the jury. Commonwealth v. Caillot,
e. Additional issues. We briefly discuss two additional issues
f. Review under G. L. c. 278, § 33E. In conducting our review
Judgment affirmed.
Order denying motion for a new trial affirmed.
Notes
A person convicted of accessory before the fact to murder in the first degree is entitled to review pursuant to G. L. c. 278, § 33E. See, e.g., Commonwealth v. Rebello,
The record is devoid of evidence that might shed light on the victim’s role as “godmother.”
Rosado testified at trial that, because the defendant outranked him and Carrasquillo in Los Solidos hierarchy, they were obligated to follow through on the mission unless the defendant called it off.
4“Jerry” was Jerry Rodriguez, whom the police had taken into custody because the “Chrome 9” was right below where he had been sitting on the couch.
The information in this section is taken from the record on appeal, and primarily derives from materials submitted in support of the defendant’s motion for a new trial.
Following the defendant’s conviction and imposition of the sentence on the charge of accessory before the fact to murder, the conspiracy indictment was placed on file without a change of plea, with the defendant’s consent.
On direct examination Vega stated that he received assurances from prosecutors that his cooperation would be taken “into consideration,” and that out of concern for his mother’s safety she was provided by the police with $500 to assist with her move out of the Springfield area. On cross-examination, Vega further indicated that he was “hoping” for consideration in exchange for his testimony, but that no promises were made in writing and that he had no knowledge of a “deal” entered into on his behalf by his attorney. Nothing about the two-week postponement of his removal to State prison from the jail was mentioned.
We do not agree with the defendant that the Commonwealth violated its obligation to inform the defendant of the terms of Vega’s cooperation agreement
The defendant frames this argument as an ineffective assistance of counsel claim — that his trial counsel failed to challenge the admissibility of Rosado’s testimony on the ground that the witness had agreed with the Commonwealth to testify only to a specified version of events without regard to whether it was true. We need not focus specifically on counsel’s performance but consider whether there was an error in admitting the testimony of Rosado, and, if so, whether the error “was likely to have influenced the jury’s conclusion.” Commonwealth v. Wright,
In Commonwealth v. Rosado,
The judge in this case also had been the trial judge in the Carrasquillo case.
See Commonwealth v. Moure,
The defendant’s appellate counsel included copies of the transcripts of Rosado’s testimony at the two earlier trials in the record appendix in this case.
We agree also with the judge that the affidavit filed by the defendant’s
As with his claim about Rosado’s testimony, the defendant presents this claim about Vega under the heading of ineffective assistance of counsel, but we focus on the underlying error asserted, namely, that Vega’s trial testimony was inadmissible because it was the product of coercion. See note 9, supra.
The defendant included in his motion for a new trial a claim that Rosado’s statements to the police were also the product of coercion; the motion judge addressed the two claims of coercion together. The defendant does not repeat the argument about Rosado on appeal. We discuss only Vega here, but note that in conducting our review of the entire record under G. L. c. 278, § 33E, we have not found significant evidence supporting a claim that Rosado’s statements to the police were the product of coercion and inadmissible on that ground — assuming the defendant would have standing to raise such a claim.
The record contains several documents that relate to Vega’s statements to the police, including his motion to suppress evidence of his statements, the related memorandum of his counsel, and his own supporting affidavit; an excerpt of Vega’s testimony in the Moure trial; and his testimony in this trial. We have reviewed these documents, and find in them allegations of being denied counsel by the police, but no allegations of physical violence by the police. Based on the record befоre us, whatever mistreatment Vega may have suffered at the hands of the police, we agree with the motion judge that the alleged mistreatment would not warrant the exclusion of Vega’s testimony at the defendant’s trial.
The defendant also claims that his trial counsel was ineffective for failing, during Vega’s cross-examination, to use Vega’s claims that his statements were involuntary. However, we again agree with the motion judge that this argument fails because defense counsel effectively cross-examined Vega and elicited from him some testimony concerning possible mistreatment at the hands of police.
In connection with his general claim, the defendant argues that his counsel’s ineffective representation deprived him of a more favorable standard of review of various claims (not “preserved” by counsel), because his claims are subject to review under the substantial likelihood of a miscarriage of justice standard, rather than the harmless beyond a reasonable doubt standard of Chapman v. California,
Indeed, it would be impossible for such evidence to exist, given that the defendant was not charged with the crime of accessory before the fact to murder until eighteen months later, in January, 1996.
The defendant asserts that this misstatement constituted structural error not subject to a harmless error analysis, citing Arizona v. Fulminante,
The judge stated: “Now, I’m not saying [evidence (i.e., evidence suggesting that ‘the defendant may have fled from Massachusetts after he discovered that he was about to be charged with the offense for which he is now on trial’)] is the fact or you should find that to be a fact. The facts are entirely your business and not mine. There was some evidence to that effect which you may accept or reject, as you see fit. . . .”
Negron also told the investigators, and testified at trial, that he heard about a plan to kill Ramirez from two other Los Solidos members, and not from the defendant; indeed, his trial testimony was that he overheard these two members tell the defendant about the plan in a conversation that occurred several days before the murder, not on May 27. This testimony, if believed, would suggest that the defendant played а less central role in relation to the conception and implementation of a plan to murder Ramirez, and was accordingly less culpable, than the Commonwealth sought to have the jury believe.
There is one additional aspect of the prosecutor’s closing that deserves comment. The prosecutor stated, in what appeared to be a reference to defense counsel, that he (defense counsel) had “slapfped] those brave men [i.e., police officers] around,” conduct that the prosecutor characterized as “almost indecent.” It is unclear whether the prosecutor was referring to defense counsel’s cross-examination of the police officers or an unrelated comment that counsel made in his closing argument. In any event, the prosecutor’s statement was improper. See Commonwealth v. Tu Trinh,
None of the defendant’s other arguments concerning the prosecutor’s opening statement or closing argument has merit. The prosecutor did not vouch improperly for the credibility of several prosecution witnesses. Improper vouching occurs where an attorney “expresses a personal belief in the credibility of a witness . . . or . . . indicates that he or she has knowledge independent of the evidence before the jury verifying a witness’s credibility.” Commonwealth v. Ciampa,
The judge’s instruction on witness credibility was the following: “Now, as I told you, your function is to assess the credibility of the witnesses. In determining credibility, you should consider the conduct and the demeanor of the witness while testifying, the frankness or lack of frankness while testifying, the reasonableness or unreasonableness of the testimony, the probability or improbability of the testimony, the opportunity or the lack thereof to see or know the facts concerning which the witness testified, the accuracy of the witness’s memory, the degreе of intelligence shown by the witness. You should consider the character and the appearance of the witness here at trial as well as any bias that he or she may have shown. You may consider any cooperation agreements, requests for consideration of a lower sentence or offers of assistance by the commonwealth to a witness in evaluating the witness’s credibility [emphasis added].
“Now, members of the jury, you have enormous power in this regard. You can choose to believe everything a witness says, nothing a witness says or anything in between those two extremes.”
Commonwealth v. Ciampa,