Based on a fight and stabbing that occurred into the early morning of July 14, 2001, about a double-parked automobile, a jury convicted the defendant of murder in the first degree, as a joint venturer, on the theory of extreme atrocity or cruelty.
The jury could have found the following. Just before midnight on July 13, 2001, the victim, a Hispanic man of twenty-two years of age, drove to his friend Jeremy Tyrone Richardson’s
A maroon Cadillac pulled up behind the victim’s automobile. The Cadillac was driven by the defendant (known as Polo) and its passengers included one woman, Oanh Tran, and five men, the codefendant (known as BJ), Sokphann Chhim (known as P), Kimthy Un (known as D), Thol Leang (known as Tommy), and another man.
The victim asked the defendant to back up his automobile so the victim could park his automobile in an empty parking space. To the occupants in his automobile, the defendant stated, “What does the nigger want?” or “What is this nigger saying?” The victim and the defendant then began yelling at each other from their vehicles.
Within seconds, the defendant, then the victim, and then the defendant’s male passengers (with the exception of the man who was sleeping) got out of their vehicles and began arguing. Richardson came outside and joined in the verbal exchange. As the argument continued, the codefendant got “right up against” Richardson’s and the victim’s faces. The defendant poked the victim on his lower left side with something, and the codefendant and another male “rush[edj” at Richardson. Richardson pushed the codefendant in the chest, causing him to fall. A melee then ensued.
Richardson fought with Un and Leang, moving around the comer onto School Street and out of sight from the others. The other men, namely, the defendant, the codefendant, and Chhim, remained on Cross Street, where they repeatedly punched and kicked the victim.
Chhim moved to the victim’s automobile, and entered through the driver’s side door. The victim leaned into the open window of the vehicle to strike Chhim. While the victim and Chhim exchanged punches, the codefendant stabbed the victim in his
The victim moved around the defendant’s automobile, trying to get away from the defendant and the codefendant. They, however, caught up to the victim. Leang and Un returned and joined in kicking and punching the victim. When the victim fell to the ground and did not fight back, the codefendant, Leang, and Un stopped fighting. The defendant, however, continued repeatedly to punch and kick the victim, and then dragged the victim’s body toward the curb.
The defendant took the victim’s necklace, and resumed punching him. Finally, Leang pulled the defendant off of the victim and “dragged” the defendant to the defendant’s automobile. The men got into the defendant’s automobile, which Leang then drove to the codefendant’s apartment. Chhim drove off in the victim’s automobile.
The defendant had a large cut on the knuckles of one hand.
Meanwhile, Richardson had returned to Cross Street and found the victim lying partially in the street and partially on the sidewalk curb. There was blood on the victim and on the street. The victim told Richardson he was dying. Richardson telephoned for help.
Emergency medical technicians arrived at 12:21 a.m. (now July 14, 2001). The victim’s shirt had approximately twenty holes and was soaked with blood. The victim was flailing his arms and was trying to kick. He kept repeating that he was going to die, and was struggling to breathe. By the time the paramedics had arrived, minutes later, the victim had no pulse and had stopped breathing. He soon thereafter was pronounced dead.
The defendant did not testify and did not call any witnesses to testify. In his opening statement, the defendant’s trial counsel conceded that the defendant had been present and had participated in a fistfight with the victim, but asserted that the fight was not vicious, and that the injuries to the victim from the defendant did not contribute to the victim’s death. The defendant’s trial counsel elicited testimony, during cross-examination of two witnesses for the Commonwealth, that the defendant had been drinking at a party earlier that night and was intoxicated. In his closing, the defendant’s trial counsel argued the following: the defendant had been intoxicated and had acted on sudden provocation and sudden combat; his actions and the injuries he inflicted were not the cause of the victim’s death; he was not aware that the codefendant had a knife and was stabbing the victim; and he did not intend to kill the victim or to cause him grievous bodily harm.
1. Evidentiary issues. The defendant argues that the admission of certain “extraneous” evidence “presents the [likelihood] of a miscarriage of justice.”
a. Noting that the identity of the defendant was not an issue at trial, the defendant maintains that reversible error occurred when the judge admitted the testimony of four witnesses who each identified the defendant from separate photographic arrays.
The fact that the defendant’s trial counsel, in his opening statement (which is not evidence), conceded the defendant’s involvement in the fight did not render the identification evidence inadmissible. See Commonwealth v. Roderick,
With respect to the contemporaneous notations, there were no notations or other indications on the photographs suggesting that they were mugshots or that the defendant had a prior criminal record. See Commonwealth v. Cruz,
No substantial likelihood of a miscarriage of justice could have arisen from Richardson’s single, unexpected reference to having been shown “a book with some pictures of gang people on it.” The defendant was not identified as being a member of a gang, and there was no issue about gang membership at trial. The judge offered to give an instruction to the jury on the point, but both counsel for the defendant and codefendant refused the offer, indicating that they did not want to “highlight” the testimony.
b. The defendant contends that Detective Thomas Daly of the Lowell police department should not have been permitted to testify that, following the victim’s death, the defendant’s residence in Alisten was placed under surveillance and that the defendant, some six months later, was arrested there by a team of officers consisting of Detective Daly, four Boston police officers, and an agent of the Federal Bureau of Investigation (FBI). The defendant did not object to this testimony at trial. No substantial likelihood of a miscarriage of justice could have occurred. See Commonwealth v. Wright,
2. Jury instructions, a. We reject the defendant’s contention that the judge’s instructions on provocation and sudden combat, which track the Model Jury Instructions on Homicide 27-30 (1999), unconstitutionally shifted the burden of persuasion to the defendant because they contained “must have” and “must be” language. We previously have rejected a nearly identical
b. There was no error in the judge’s refusal to instruct the jury on the lesser included offense of assault and battery by means of a dangerous weapon (shod foot). An instruction on a lesser included offense is appropriate where the “evidence provides a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offence.” Commonwealth v. Santo,
Uncontradicted testimony of the medical examiner established that the victim’s death was a result of a stab wound to his chest. The defendant argues that he was entitled to the instruction on the lesser included offense of assault and battery because the jury could have inferred that the defendant did not know that the codefendant was using a knife (because it was dark outside, the victim wore a dark colored shirt, and the defendant could have concluded that any visible blood was his own). However, the defendant did not need to know that the codefendant possessed the knife in order for the jury to find that he had acted with malice. See Commonwealth v. Semedo,
c. We decline the defendant’s invitation to reconsider our holding that “a defendant is not entitled to an instruction requiring specific unanimity as to the factors set forth in Commonwealth v. Cunneen,
3. G.L. c. 278, § 33E. The defendant seeks a reduction of the verdict to manslaughter. He first asks for a reduction based on the fact that Chhim’s conviction of murder in the first degree, as a joint venturer, on a theory of extreme atrocity or cruelty (following a separate trial), was reduced to involuntary manslaughter by the trial judge in a memorandum and order allowing Chhim’s motion pursuant to Mass. R. Crim. P. 25 (b) (2),
“Chhim’s use of his fists before entering [the victim’s automobile] was a simple assault and battery. His entry into the [automobile] initiated the car theft. [T]here is no evidence that, when Chhim entered [the victim’s automobile], he knew that [the codefendant] had a knife or that anyone intended to knife or beat [the victim] to death. Chhim gained this knowledge only after he was already in the driver’s seat of the [victim’s automobile] and saw [the victim’s] blood on him and [on] the car. Once he had this knowledge and recognized that the fistfight had escalated into a one-sided knife fight, the only thing he did, viewing the evidence in the light most favorable to the Commonwealth, was remain in the [victim’s automobile] and drive away with his friends when [the victim] lay dying. He did nothing else to contribute to [the victim’s] death. In short, all that Chhim did after he realized this was more than a fistfight was remain in the [victim’s automobile] and then flee the scene.”
The defendant next argues that a reduction is warranted because the circumstances of the killing “undermine the significance of [the defendant’s] actions and mitigate his apparent disregard for the [victim’s] life.” He maintains that he did not act with malice because Richardson struck the first blow; none of his (the defendant’s) blows was a contributing cause to the victim’s death; and he was intoxicated. The defendant points to various circumstances including darkness, the fact that the victim wore dark clothing, the fact that the defendant had injured his own hand during the fight and was bleeding, and the fact that the codefendant had employed a small penknife. Based on these circumstances, the defendant argues that malice could not have been inferred from his knowledge that the codefendant was using a dangerous weapon.
The defendant overlooks that, although there was evidence of his intoxication, there was conflicting evidence, namely Tran’s testimony, as to the extent of his intoxication, and the judge properly instructed the jury on the issue of intoxication, see Commonwealth v. Doucette,
We have reviewed the record under our statutory obligation, and conclude that there is no basis to grant the defendant relief.
Judgment affirmed.
Notes
The Commonwealth had proceeded on theories of both deliberate premeditation (as a joint venturer only) and extreme atrocity or cruelty (as a principal or as a joint venturer). The jury were also permitted to consider whether the defendant (as a principal or as a joint venturer) committed murder in the second degree, voluntary manslaughter, or involuntary manslaughter.
The other man apparently slept during the entire relevant time period.
Deoxyribonucleic acid (DNA) testing revealed that DNA consistent with the defendant’s was found on various items comprising the crime scene.
From photographic arrays, both Oanh Tran and Jeremy Tyrone Richardson identified the defendant as having participated in the killing. Phen Chhon and Sinath Path each identified the defendant from separate photographic arrays as one of the men who had been at Chhon’s home earlier in the evening on July 13, 2001.
The defendant did not object to the testimony of the four witnesses who identified him, or to the admission of the photographic arrays in evidence.
For instance, Tran read her notation on the top of the array: “This is Polo. He was driving the maroon Caddy. I saw him beating him badly. He’s the one that steal necklace [from the victim].” Richardson testified that he wrote on the back of the photographic array shown to him: “This is the driver who got out of the Cadillac and started talking shit with [the victim] and was fighting [the victim].” Chhon testified that he wrote on the photographic array shown to him: “This is Polo, the one that was at my house.”