Thе defendants, Viengsaymay Chaleumphong and Donnie Bouphavongsa, were convicted of the murder of Joshua Molina in the first degree on the theory of extreme atrocity or cruelty, and assault and battery of Juan Santana by means of a dangerous weapon. On appeal, Chaleumphong claims that the judge erred by (1) announcing during the third day of empanelment that he might seat fewer than sixteen jurors; (2) admitting vouching evidence, and permitting the prosecutor to vouch for witnesses during argument; (3) refitsing to instruct on voluntary intoxication; (4) lowering the Commonwealth’s burden in an instruction that permitted the jury to infer malice from consciousness of guilt; and (5) lowering the Commonwealth’s burden by instructing the jury that the Commonwealth was not required to prove that, for purposes of joint venture, the defendant was aware that the killing was committеd with extreme atrocity or cruelty, or that he desired the killing to be carried out in that manner. Bouphavongsa raises only the second and third issues in his appeal. Both defendants ask us to reduce their convictions under G. L. c. 278, § 33E. We affirm the convictions, and decline to exercise our power under G. L. c. 278, § 33E.
We summarize the facts the jury could have found, reserving other details for discussion of the issues. During the evening of November 20, 1997, the defendants and eight of their friends, most of whom were members of the Laos Boyz street gang in Lowell, were “hunting,” a semimonthly exercise that involved attacks on members of rival gangs. They were driving around in two cars. At about 9:30 p.m. they encountered Joshua Molina, Juan Santana, and Johnny Lozada, who were walking on Bridge Street in Lowell. Chaleumphong, who was driving one of the cars, pulled alongside the three Hisрanic youths. Someone in the car summoned Molina, who walked over and spoke briefly with one of the passengers, then walked away. Chaleumphong and his friends rejoined the other members of their group. They
They parked the cars out of sight a short distance up the street in the dirеction Molina and his friends were walking, then armed themselves with anything that could be used as a weapon. Chaleumphong had a claw hammer, and Bouphavongsa had a ball peen hammer. None of the others had hammers. The ten youths hid along the side of a diner and waited for Molina and his friends. Bouphavongsa served as lookout.
As Molina walked by the diner, he was knocked to the ground by one of the others, аnd Bouphavongsa then struck him in the face with a hammer. Molina curled in a fetal position, and lay motionless. Bouphavongsa continued to strike him, but there was no evidence that those blows were to the head. Others pummeled him with a shovel, fists, boards, and “The Club,” an automobile antitheft device. Chaleumphong repeatedly struck Molina in the head with a hammer. Juan Santana was beaten senseless. He regained consciousness in a hospital, and eventually recovered from his wounds. Johnny Lozada had seen the attack coming and tried to warn his friends as he fled. The group of ten fled before police arrived.
Molina died three days later from his head wounds, of which there were nine, any one of which was life threatening. Each of the wounds was consistent with the blow of a hammer wielded with significant force. He suffеred severe hemorrhaging and numerous skull fractures, many of which displayed a radiating fracture pattern. His brain protruded through a hole in his skull.
One of the attackers, Kamseng Varipath, spoke to the police, giving them their first real lead. The police approached two others, Somphone Xaysanasine and Steven Kounlabouth, and offered them “cooperation agreements.” All three testified at trial. Varipath had not been charged, and he did not know whether he would be charged. Xaysanasine and Kounlabouth testified pursuant to plea agreements. Xaysanasine’s plea agreement provided for a reduction of his murder charge to assault and battery by means of a dangerous weapon (shod foot), and a sentencing recommendation of house arrest, provided he testify truthfully. Kounlabouth’s plea agreement provided that he would be charged with two counts of assault and battery by means of a
1. Jury empaneling. At the beginning of trial, the judge said he would seat sixteen jurors. He allotted each defendant twenty peremptory challenges, four more than provided under Mass. R. Crim. P. 20 (c) (1),
The judge announced that he was prepared to proceed with fifteen jurors. Counsel for Bouphavongsa asked the judge to seat a sixteenth juror, and when asked, conceded that proceeding with fifteen jurors would not result in any prejudice. Counsel for Chaleumрhong objected, and claimed that his strategy would have been different if they had tried to seat sixteen jurors, adding that he had expedited his challenges. The judge then decided that he would seat sixteen jurors. The next day a sixteenth juror was seated. At the conclusion of empaneling, each defendant had six unused challenges.
Chaleumphong argues that the judge’s decision to change the number of jurors from sixteen to a range of fourteen to sixteen impaired his use of peremptory challenges, denied him the benefits of State law on peremptory challenges, and diminished the value of the available challenges. In the absence of an objection, we review under the standard of a substantial likelihood of a miscarriage of justice. G. L. c. 278, § 33E. See Commonwealth v. Beldotti,
2. Vouching issues, (a) The defendants contend that during his testimony, Detective Joseph Murray improperly vouched fоr the credibility of Kounlabouth and Xaysanasine. Bouphavongsa’s counsel cross-examined Murray about his disbelief of statements made by Kounlabouth during the investigation. Murray declined to answer, but counsel persisted. Murray explained that Kounlabouth’s account seemed more truthful after he admitted hitting Santana with a piece of “The Club.” Counsel pressed on, asking Murray if he had any way of knowing whether the cooрerating witnesses were telling the truth. When Murray said that he did, counsel pointedly suggested that Murray could only know this if he had violated the sequestration order under which he was testifying. Murray responded that he only assumed they testified in a manner consistent with their grand jury testimony, otherwise there could be ramifications for them. There was no objection or motion to strike that testimony.
A witness may not express an opinion about thе credibility of another witness. See Commonwealth v. Triplett,
Murray’s testimony did not constitute “vouching.” His testimony had not been elicited by the prosecutor, which, if it
Moreover, there was little or no risk to Bouphavongsa from the questions, regardless of the answers Murray might give. If Murray answered that he had no way of knowing whether the witnesses were truthful, counsel could argue that the Commonwealth struck a bad deal because it had no way of knowing whо was telling the truth; if Murray answered as he did, counsel could reasonably expect that the answer would pit Murray against the judge, who probably would instruct the jury in accordance with Commonwealth v. Ciampa, supra at 266, that the government had no way of knowing if the witnesses were telling the truth, and Murray would become vulnerable to the suggestion that he violated the sequestration order, thereby lending support to the defense claim that the policе had contaminated the investigation. Counsel could have determined that any risk was outweighed by the support he could obtain for the defense strategy. See Commonwealth v. Drumgold,
(b) The defendants argue that a former assistant district attorney assigned to the investigation, who was called as a Commonwealth witness, improperly vouched for the credibility of the cooperating witnesses during his testimony. See Commonwealth v. Ciampa, supra at 265. As a preliminary matter, the Commonwealth argues that our Ciampa decision does not apply because the assistant district attorney was subject to cross-examination. Id. at 260. We have never said that cross-examination, per se, cures improper vouching for a witness testifying under the influence of a plea agreement. Cross-examination may alleviate the prejudicial effects of such vouching, but, as we have indicated, supra at 74, the potential prejudice in the evidentiary use of plea agreements may be released by a police witnеss who is involved in the investigation. Although the assistant district attorney did not testify as a police officer, his involvement in the investigation in an official capacity requires us to give his testimony similar scrutiny.
The assistant district attorney’s testimony, given over the objections of both defendants, was closely monitored by the judge to ensure there would be no vouching. His testimony was limited to an accounting of what he said to the coоperating witnesses, and the actions he took as to each during the course of the investigation. He merely outlined the history of the investigation to rebut insinuations of defense counsel that the investigation was result oriented. He did not express his personal belief in the credibility of any witness, or suggest that he had special information at his disposal from which he could verify the truthfulness of their testimony. The judge proрerly denied motions to strike the direct examination of the assistant district attorney, or alternatively, for a mistrial. The testimony was an
Chaleumphong further claims that the assistant district attorney improperly vouched for the cooperating witnesses during cross-examination by Bouphavongsa’s counsel when he stated, “In a perfect world, they all would have gotten charged with murder.” There was no objection or motion to strike the remark. It did not constitute vouching. Cf. Commonwealth v. Brousseau,
(c) There is no merit to Chaleumphong’s claim that the judge should have given a requested limiting instruction after the assistant district attorney’s testimony to the effect that the Commonwealth has no way of determining whether a witness is truthful. See Commonwealth v. Ciampa, supra at 266. No limiting instruction was required because there had been no vouching testimony either by the assistant district attorney or by Detective Murray. Moreover, the judge recognized that the timing of the requested instruction, if given, could be perceived by the jury as his enlistment onto the defense team in these unusual circumstances. There was no error.
The judge’s final instruction tracked the requirements of Commonwealth v. Ciampa, supra at 266. He forcefully instructed the jury that the credibility of the witnesses was a matter for them alone to decide, not the police or the prosecutor. He told them that prosecutors or police have no special methods of determining who is truthful or not. He also cautioned them to weigh with care the credibility of the witnesses who were testifying pursuant to plea agreements. There was no error.
(d) Chaleumphong argues, very briefly, that a portion of the prosecutor’s closing argument constitutes improper vouching. The prosecutor was responding to Chaleumphong’s counsel’s closing argument where he implied that the police were duped by Varipath, who had said he came forward because “it was the right thing to do,” and to Bouphavongsa’s counsel’s closing argument where he stated that the police rushed to judgment because they were overworked. His point simply was that it was
3. Failure to instruct on voluntary intoxication. The judge refused to instruct the jury on voluntary intoxication, as requested. An instruction on voluntary intoxication is not required absent evidence of “debilitating intoxication.” Commonwealth v. Erdely,
4. Instruction on consciousness of guilt. Chaleumphong argues that the judge’s instruction on consciousness of guilt, which he concedes conformed with Commonwealth v. Toney,
5. Instruction on joint venture. The judge instructed the jury that, if the Commonwealth proved beyond a reasonable doubt that either or both defendants “participated in a joint venture with another person to commit an unlawful homicide while sharing that other person’s mental state of malice aforethought, and the Commonwealth also proved that the other person committed the unlawful homicide with extreme atrocity or cruelty,” then they would be warranted in returning a guilty verdict as to such defendant of murder in the first degree as a joint venturer. The judge added that “ [i]t is not necessary for the Commonwealth to prove that [the defendants] had a conscious awareness that the acts were being committed with extreme atrocity or cruelty or that either of them desired the acts to be carried out in that manner.” Chaleumphong contends that this instruction erroneously relieved the Commonwealth of its burden of proving the element of extreme atrocity or cruelty because some of the factors the jury were required to consider on the question of extreme atrocity or cruelty involved a determination of his mental state.
We have consistently held that “proof of malice aforethought is the only requisite mental intent for a conviction of murder in the first degree based on murder committed with extreme atrocity or cruelty.” Commonwealth v. Cunneen,
Chaleumphong’s reliance on Commonwealth v. Gould,
6. Relief under G. L. c. 278, § 33E. We have considered for the benefit of both defendants all arguments made by one defendant alone. We have reviewed the entire record, the transcripts, the briefs, and the arguments. We decline to reduce the convictions or order a new trial.
The defendants set out with their friends to inflict serious harm on unsuspecting persons who had caused them past inconvenience. They ambushed Joshua Molina and brutally beat him with crude weapons. After beating him, the ten drove to a nearby fast food restaurant, ate hamburgers and regaled in the success of their “hunt.” Bouphavongsa recalled his encounter with Molina two years earlier, adding that this time he was “fucking him up . . . getting him good.” Chaleumphong boasted that he “got them good,” “bashing that mother fucker.” The next night he said he “fucked up them Spies with a hammer.”
Judgments affirmed.
Notes
Four of the remaining five members of the group were charged with murder and other crimes; the fifth was charged with assault with intent to murder, and assault and battery by means of a dangerous weapon. Their trials were severed from this one.