COMMONWEALTH vs. LUIS PENN.
Supreme Judicial Court of Massachusetts
September 9, 2015
472 Mass. 610 (2015)
Essex. May 8, 2015. - September 9, 2015. Present: GANTS, C.J., CORDY, DUFFLY, LENK, & HINES, JJ.
Reaffirmation of the standard of review regarding the sufficiency of the evidence in a criminal trial at the close of the prosecution‘s case and at the close of all the evidence. [618-619]
At a murder trial, the evidence was sufficient to permit a reasonable jury to find the defendant guilty of the premeditated murder of the victim, where, although a third party had a stronger motivation to kill the victim, the jury were entitled to credit eyewitness testimony implicating the defendant, and where consciousness of guilt evidence pointed to the defendant as the shooter; further, the verdict was not against the weight of the evidence. [619-622]
No violation of the criminal defendant‘s constitutional right to a public trial arose from the temporary closure of the court room during jury empanelment, where the defendant‘s claim of error was procedurally waived when his counsel did not object to the closure; further, counsel was not ineffective in failing to object, where the defendant did not claim that the closure was likely to have had any effect on the judgment. [622-623]
At a murder trial, the judge erred in failing to instruct the jury about the risk of an honest but mistaken observation, even in the absence of a positive eyewitness identification, where the facts permitted such an instruction and the defendant had requested it; however, the error did not produce a substantial likelihood of a miscarriage of justice, where, even without the instruction, the jury reasonably would have understood that they needed to consider whether the eyewitness had made a good faith, honest error in his observations of the shooting. [623-626]
At a criminal trial, although the prosecutor in closing argument improperly vouched for the accuracy of a witness‘s testimony and improperly expressed her personal opinion as to the defendant‘s guilt, the improper statements did not create a substantial likelihood of a miscarriage of justice, where a reasonable jury would have understood the prosecutor‘s assertions of the “truth” to be based on the evidence at trial. [626-628]
This court ordered resentencing of a criminal defendant who was a juvenile at the time he committed murder to permit the possibility of parole. [628]
INDICTMENTS found and returned in the Superior Court Department on May 5, 2004.
Dana Alan Curhan for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.
GANTS, C.J. A Superior Court jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation for the killing of the victim, Aneury Guzman.1 The critical issue in the case was whether the victim had been shot by the defendant or by the defendant‘s friend, Benjamin Serrano, who minutes before the shooting had confronted the victim with a firearm, handed the firearm to the defendant, and then engaged in a fist fight with the victim.
On appeal, the defendant claims that he is entitled to reversal of the murder conviction because the evidence was insufficient as a matter of law.2 Alternatively, he claims that, even if the evidence were legally sufficient, the court should exercise its authority under
Background. Because the defendant challenges the sufficiency
1. Commonwealth‘s case-in-chief. Serrano had dated Jennifer Suarez “on and off” for approximately four years when she ended her relationship with Serrano and began dating the victim in January, 2004. Serrano told Suarez that “he didn‘t want [her] with [the victim],” and that she was “his girl and [was] always going to be with him.” Serrano also threatened the victim, telling Suarez that “he‘s going to kill” the victim, and “[w]atch when he catches him.”
On the evening of April 1, 2004, Serrano knocked on the apartment door of Suarez‘s cousin, Vicky Gonzalez, who resided in a three-story multifamily building in Lawrence near the corner of Haverhill Street and Oxford Street. Gonzalez “cracked” open the door and saw Serrano, whom she knew, dressed in a “brown down coat.” Serrano‘s jacket had a hood, but he did not “have it on.” Just behind Serrano was a man she did not know, who was dressed “all in black“: “[b]lack sneakers, black pants, [and a] black jacket.” The man had his “hood” on, and his face was “totally covered” with “what must have been a mask or something.” Serrano asked for Suarez, and pushed the door, trying to look into the apartment. Gonzalez told him to leave, and Serrano said, “I want Jennifer and I know she‘s here.” Gonzalez told him that she would call the police if he did not leave, and he and the other man left.
Unknown to Serrano, the victim was in the apartment when Serrano tried to enter. Minutes earlier, the victim had come to the apartment in an automobile with his friends, Johan Abreu and
The medical examiner concluded that the victim died from a single bullet wound at the top and towards the rear of the victim‘s head. From the nature of the wound, he offered the opinion that the barrel of the gun was against the victim‘s scalp, and that the path of the bullet was “downward.”
Estrella noted that it was dark and drizzling when he saw the shooting. From his vantage point, Estrella was between 178 and 230 feet from the location of the shooting. Estrella saw that the shooter was wearing a black or dark-colored winter coat, with a hood over his head. Estrella testified that the second man was taller than the victim, and that he could see when they came close together that the second man‘s chin nearly touched the center of the victim‘s forehead.8
The victim was five feet, six inches tall; Serrano is five feet, five inches tall; the defendant is five feet, eleven inches tall.
During the examination of the crime scene, next to a bloodstain on the sidewalk the police found a Virgin Mary medallion that belonged to Serrano, a single .22 caliber shell casing, and a closed pocket knife. Nearby, they found a Jesus medallion that belonged to the victim, and a jacket that belonged to the victim.9,10
On the evening of April 3, after speaking by telephone with the defendant, Stephanie Bertone traveled by taxicab to a motel in Middleton, where the defendant was now staying.11,12 The defendant told her that “there were people after him.” They stayed for “a couple of days” at the motel, and then traveled to Shamokin, Pennsylvania, where they stayed with a friend of the defendant‘s mother. While in Pennsylvania, Bertone asked the defendant why they had left and why they were there. The defendant told her that he was driving around with “Benji” in Benji‘s motor vehicle when Benji saw “some kid that he had a problem with and they stopped the car.” Benji got out of the vehicle and “started arguing with the kid and he ended fighting with him.” When the kid had Benji down on the ground, Benji told the defendant to get out of the vehicle and bring him the gun that Benji had in it. The defendant walked over to “where Benji and the other kid were fighting,” and the defendant “went to hand” Benji the gun. The defendant then paused, and Bertone asked him what happened. He responded, “You can guess what happened.”
The defendant was arrested in Shamokin on April 14, and State police Trooper Brandon Arakelian interviewed him in the library of the county jail on April 15, in the presence of Lawrence police Detective Victor Morales and Officer William Miner of the Sham-
The defendant gave a cellular telephone number for Domingoes, but Trooper Arakelian was unable to reach Domingoes at the number and was never able to locate him. Trooper Arakelian also asked the defendant for Melanie‘s last name and street address, but the defendant provided neither. The trooper also determined that there were no reports of shots fired in the area of Basswood and Juniper Streets on the night of April 1, or the day that preceded and the day that followed that night. In fact, the only report of gunfire in that time frame in Lawrence was the report of the shot that killed the victim.
After this police interview, the defendant asked to speak with Officer Miner alone. The officer explained to the defendant that the best thing the defendant could do was tell the other officers the truth. The defendant “took a breath” and told Officer Miner, “I was there; I had the gun.” The defendant then paused and added, “Things just got crazy.” After another pause, he said, “I just don‘t know what to do.”
2. Defendant‘s trial testimony. The defendant testified in his own defense.13 He said that he had known Serrano for about one and one-half months before the shooting. On April 1, at approxi-
Serrano pointed the gun at the top of the kid‘s head, with the wrist aimed downward, and asked, “Who‘s the man now?” After the kid told him, “Do what you have to do,” Serrano punched the kid in the face with his left hand, and said he was going to fight him first. Serrano then said, “Yo Fifty,” and the defendant stepped out to where they were standing. Serrano handed him the gun, which the defendant pointed toward the sky. The two men who had been in the automobile ran away. The kid placed Serrano in a bear hug, lifted him up, slammed him on the ground, and began punching him in the face and stomach. Serrano twice told the defendant to “give me my gun,” but the defendant refused. The kid then got off the ground, threw his jacket over his shoulder, and walked quickly out of the parking lot.
Serrano, still lying on the ground, told the defendant that he was “a fucking punk,” and asked him, “Why you let him beat me up like that?” The defendant told him he should have defended himself. Serrano then got up off the ground, said, “Give me my fucking gun,” and pulled the gun away from the defendant‘s hand. The defendant walked north up Oxford Street, crossed Haverhill Street, and went down Railroad Street, heading home. He looked back, and he saw “Benji coming around the corner towards” where the kid was standing on Haverhill Street. The defendant “kept walking,” thinking to himself that “this ain‘t my problem” and that “everything was over.” As he was walking towards the other end of Railroad Street, he heard “a pop” but ignored it — because he “didn‘t know what it was” — and continued on to his mother‘s house. The next morning, his mother woke him at 5 A.M. and told him that someone had called her and that she needed to
He admitted that he lied to Trooper Arakelian but said he did so because he was “scared” and “didn‘t want to get charged with something [he] did not do.” The defendant maintained that false alibi even after Trooper Arakelian told the defendant that he knew the defendant was there, because the defendant “didn‘t want to rat on Benji.”
Discussion. 1. Sufficiency and weight of the evidence. The defendant moved for a required finding of not guilty based on the insufficiency of the evidence at the close of the prosecution‘s case and at the close of all the evidence. The defendant claims that the judge erred in denying these motions, and that he is entitled to reversal of the murder conviction.
The defendant challenges the appellate standard that reviews a claim of insufficiency of the evidence. Under that standard, we 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” (emphasis in original). Commonwealth v. St. Hilaire, 470 Mass. 338, 343 (2015), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). See Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). The defendant argues that we should instead determine whether the essential elements of the crime could have been found beyond a reasonable doubt by “a reasonable jury.” The defendant cites in support of his position a law review article by then-Chief Judge Jon Newman of the United States Court of Appeals for the Second Circuit, who feared that “the word ‘any’ and the wholly gratuitous and potentially misleading underscoring of that word... can subtly shift an appellate court‘s attention from the correct construct of the reasonable jury to the quite incorrect construct of just one out of a distribution of reasonable juries.” Newman, Beyond “Reasonable Doubt,” 68 N.Y.U. L. Rev. 979, 992 (1993). Judge Newman‘s concern was that appellate courts under the “any rational trier of fact” formulation might “examine a record to satisfy themselves only that there is some evidence of guilt and... not conscientiously assess whether the evidence suffices to permit a finding by the high degree of
The “any rational trier of fact” standard was stated by the United States Supreme Court in Jackson, 443 U.S. at 319, immediately after the Court stated that “the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be... to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Id. at 318. In Latimore, 378 Mass. at 677, we quoted both of these standards. Neither the Supreme Court in Jackson nor this court in Latimore suggested that these two standards are substantively different.15 We decline to characterize them now as different in substance. We regard them simply as alternative formulations of the same appellate standard. We note that we have used the alternative to the “any rational trier of fact” formulation in earlier cases without intending any difference in the standard of review. See, e.g., Commonwealth v. Rivera, 460 Mass. 139, 141 (2011) (“we review the evidence... to determine whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient for a reasonable jury to infer the existence of each essential element of the crime charged, beyond a reasonable doubt“); Commonwealth v. Ferguson, 384 Mass. 13, 15 (1981) (“we must determine whether [the] evidence, considered in the light most favorable to the Commonwealth, was sufficient to permit a jury reasonably to infer the existence beyond a reasonable doubt of each essential element of the crime charged“). Under both formulations of the appellate standard, “it is not enough... to find that there was some record evidence, however slight, to support each essential element of the offense.” Latimore, supra. Rather, the evidence must be sufficiently strong to permit a reasonable jury to find that each essential element of the charged offense was proved beyond a reasonable doubt. See cases cited, supra.
Applying that standard, we conclude that the evidence in this case was sufficient to permit a reasonable jury to find the defend-
The consciousness of guilt evidence also points to the defendant as the shooter. The jury reasonably could have inferred that, regardless of whether it was arrest or retaliation that he feared, he went to the motel and later left for Pennsylvania because he had shot and killed a person on the evening of April 1. Had he not been the shooter, it is unlikely that he would have felt the same need to flee. The jury also reasonably could have inferred that the closest he came to speaking the truth was when he told Officer Miner, “I was there,” “I had the gun,” and “Things just got crazy.” This
Having reviewed the entire record in this case pursuant to
It is reasonable to conclude that the defendant‘s version of what happened after the fight ended between Serrano and the victim is not credible for various reasons. It is not credible that the victim simply walked away from the fight, where the defendant was pointing a gun at him. Nor is it credible that, after the victim left the scene of the fight, the defendant walked away and got as far as he said he did past the corner of Haverhill and Oxford Streets when he heard the gun shot behind him at that corner; the victim had not run far from the scene of the fight before he suddenly turned to face the person chasing after him, and their encounter was brief before the shooting. Nor is it credible that he ignored the “pop” sound he admits that he heard, or that he did not recognize
2. Court room closure. After being convicted, the defendant moved for a new trial on the grounds that the court room had been improperly closed during jury empanelment, and that his trial counsel had been ineffective in failing to object to the closure. Following an evidentiary hearing, the trial judge concluded that “the defendant‘s mother and a friend of hers were excluded from the courtroom during the jury [e]mpanelment,” and that “the [c]ourt itself, from the bench in open court, directed that the courtroom be cleared of spectators before the prospective jurors entered.”17 Defense counsel “advised [the two spectators] that they would have to remain outside until [e]mpanelment was complete,” which they did. He did not object to the closure and, after the jury were empaneled, stated that “the accused [was] satisfied with” the empanelment process.18 Based on these facts, the judge denied the defendant‘s motion for a new trial, concluding that the defendant both waived his right to a public trial during jury selection and procedurally waived the claim of a violation of that right.
The defendant‘s right to a public trial under the Sixth Amendment to the United States Constitution applies to jury empanelment proceedings, and the violation of that right is structural error where the claim of error is properly preserved. See Commonwealth v. Cohen (No. 1), 456 Mass. 94, 105-106 (2010). See also Presley v. Georgia, 558 U.S. 209, 213 (2010). But “[w]here counsel fails to lodge a timely objection to the closure of the court room” — as happened in this case — “the defendant‘s claim of error is deemed to be procedurally waived.” Commonwealth v. LaChance, 469 Mass. 854, 857 (2014), cert. denied, 136 S. Ct. 317 (2015), citing Commonwealth v. Morganti,
3. Absence of instruction regarding honest mistake in identification. The defendant also contends that he is entitled to a new trial because the trial judge did not instruct the jury on the
The defendant requested a five-part jury instruction on “mistaken observation,” which the judge and defense counsel characterized as an “amplification” of the instruction regarding eyewitness identification that this court approved in Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (Appendix) (1979), S.C., 419 Mass. 1006 (1995). The judge declared that he was not inclined “to do the amplification,” but was inclined to give “the straight Rodriguez instruction,” fearing that the additional detail in the amplified instruction would put him “more in the role of advocate than [he] ought to be.” The judge agreed to defense counsel‘s request that his objection be noted for the record, even though defense counsel added that “there is no legal basis” for the objection “other than looking for an expansion.”
At the charge conference that followed the close of evidence at trial, the judge said that he no longer thought that the Rodriguez instruction was appropriate because that instruction provides guidance regarding “an actual identification” and there was no identification of the shooter in this case. The judge said he would draft an instruction that would make clear to the jury that there was no identification of the shooter but there was testimony from Estrella regarding the “physical characteristics and attire” of the shooter, and set forth the factors the jury might use in assessing that testimony. Defense counsel agreed that “that would be appropriate.”
The judge instructed the jury regarding eyewitness identification as he had promised.21,22 Defense counsel did not object to
In Commonwealth v. Pressley, 390 Mass. 617, 620 (1983), we declared that where “[i]dentification [is] crucial to the Commonwealth‘s case... [f]airness to a defendant compels the trial judge to give an instruction on the possibility of an honest but mistaken identification when the facts permit it and when the defendant requests it.” Here, where the facts permitted such an instruction and the defendant requested it, the judge should have instructed the jury about the risk of an honest but mistaken observation even in the absence of a positive eyewitness identification. See Franklin, 465 Mass. at 912. The defendant, however, did not object to the judge‘s jury instructions at trial, and therefore failed to alert the judge of the need for such an instruction.24 Where the objec-
4. Closing argument. In her closing argument, the prosecutor told the jury that the defendant “can‘t tell you the truth because the truth doesn‘t help [the defendant]. The truth is... that [the defendant] was the shooter.” She later said that Estrella “[has] no reason to come in here and tell you anything but the truth. And that‘s exactly what he did.” She concluded, “The defendant is the trigger man. That is the truth... It was the defendant who murdered [the victim].” The defendant argues that, in making these statements, the prosecutor improperly vouched for the accuracy of Estrella‘s testimony and improperly expressed her personal opinion as to the defendant‘s guilt. Where, as here, the defendant did not object to these closing argument statements at trial, we determine whether the statements created a substantial likelihood of a miscarriage of justice that requires a new trial. See, e.g., Commonwealth v. Sanders, 451 Mass. 290, 296 (2008)
We agree with the defendant that the statements were improper. A prosecutor is free to provide the jury with the reasons why they should find a witness‘s observations to be accurate, but she cannot tell the jury that the witness speaks the truth. See id. at 297 (“[T]he prosecutor [may not] suggest that he has personal knowledge of, or vouch for, the credibility of a witness... [but may] state logical reasons why a witness‘s testimony should be believed“). See also Mass. G. Evid. § 1113(b)(3)(B) (2015) (impermissible in closing argument “to state a personal opinion about the credibility of a witness“). A prosecutor is also free to harness the key evidence and provide the jury with the reasons why they should conclude that a defendant was the shooter, but she cannot tell the jury that she knows it to be true that he was the shooter. See Sanders, supra at 296-297 (“A prosecutor may not express his personal belief in the testimony or suggest that he has knowledge independent of the evidence at trial... [but] may comment on and draw inferences from the evidence at trial“). See also Mass. G. Evid. § 1113(b)(3)(B) (impermissible in closing argument “to state a personal opinion about... the ultimate issue of guilt“).
We conclude, however, that the prosecutor‘s statements in this case, although improper, did not create a substantial likelihood of a miscarriage of justice. A prosecutor‘s vouching for the truth of a witness‘s testimony or of the defendant‘s guilt is improper because it might suggest to the jury that the prosecutor has special knowledge, apart from the evidence presented at trial, that enables her to know that the witness is telling the truth or that the defendant committed the crime. See Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989), and cases cited. But there was little danger that the jury would make that inference here because the prosecutor argued the reasonable inferences from the evidence at trial and did not suggest that she came to the “truth” based on anything other than the evidence at trial. See Commonwealth v. Montgomery, 52 Mass. App. Ct. 831, 834 (2001), quoting Commonwealth v. Murchison, 418 Mass. 58, 60-61 (1994) (“prosecutor‘s assertions that the defendant was lying[ ] generally were accompanied by the words ‘the evidence establishes,’ and thus were ‘expressed as a conclusion to be drawn from the evidence
5. Resentencing as a juvenile. The defendant was seventeen years old at the time of the crime. After conviction, he received the mandatory sentence for murder in the first degree under
Conclusion. We affirm the defendant‘s convictions of murder in the first degree and carrying a firearm without a license, and affirm the order denying the defendant‘s motion for a new trial, but remand for resentencing consistent with Diatchenko.
So ordered.