Com. v. Jiles

• Decision Date: 22 July 1998
• Citation: 428 Mass. 66,698 N.E.2d 10
• Parties: COMMONWEALTH v. Jason JILES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 10

698 N.E.2d 10

428 Mass. 66

COMMONWEALTH v. Jason JILES.

Supreme Judicial Court of Massachusetts Hampden.

Argued May 6, 1998.

Decided July 22, 1998.

Randolph Gioia, Boston, for defendant.

Jane Davidson Montori, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and LYNCH, FRIED, MARSHALL and IRELAND, JJ.

IRELAND, Justice.

The defendant, Jason Jiles, was found guilty of deliberately premeditated murder in the first degree for the shooting death of Carlos Falcon. The defendant also was found guilty of three indictments charging armed assault with intent to murder, G.L. c. 265, § 18 (b), and assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A, for the shootings of Falcon's three companions.

The defendant appeals from all seven convictions but raises claims of error that relate only to the murder conviction. First, the defendant claims that the jury instructions on deliberate premeditation (to which he made no objection at trial) were faulty because (a) the judge never explicitly informed the jurors that conviction of premeditated murder in the first degree requires a finding of "specific intent" on the part of the defendant to kill the victim (i.e., first prong malice); and (b) the judge erroneously instructed jurors on all three prongs of malice ¹ in connection with his instructions on premeditation. Second, the defendant claims that the judge committed reversible error by admitting in evidence a prior statement of a key prosecution witness that included powerfully incriminating hearsay statements, made to that witness by the defendant's alleged accomplice, that the defendant had killed the victim. Objection was not made on hearsay grounds. Finding that no substantial likelihood of a miscarriage of justice has occurred, we affirm the defendant's convictions. We also decline relief under G.L. c. 278, § 33E.

The jury could have found the following. The defendant, at the time of the shooting, was nineteen years old. He aspired to become a member of Los Solidos (The Solids), one of several rival gangs that operate in the city of Springfield. The defendant belonged to the Solids' Original Family Organization (OFO), an apprentice-like group, membership in which generally preceded membership in the Solids. An OFO member could become a full-fledged Solids member by carrying out on behalf of the gang a "mission," meaning beating up or shooting someone (usually a rival gang member).

One member of the Solids, Daniel Rodriguez, was a witness for the Commonwealth. Rodriguez testified that on the evening of February 28, 1995, the date of the shootings, members of OFO and the Solids met at the apartment of Sharleen Alvarez, the defendant's girl friend, purportedly to install a new leader, or president, of OFO. The defendant was among those who were present, as was Rodriguez. The meeting was interrupted when two Solids members entered the apartment shouting that members of a rival gang, the Latin Kings (Kings) were downstairs on the street "flashing signs"--making gestures of disrespect toward the Solids and challenging the Solids on their own turf.

Several Solids members and OFO members met behind closed doors in the apartment's bathroom at the direction of the Solids' "chief enforcer" in order to decide what to do about the Kings' challenge. A short time later, the OFO enforcer dismissed everyone from that meeting except for the defendant and Mack Brown, the "war lord" for OFO. Rodriguez had often seen Brown with a .38 caliber revolver.

A short time later, Rodriguez saw the defendant in the apartment holding a .22 caliber semiautomatic gun. The defendant said, "I'm going to take care of it." He donned a hooded sweatshirt and left the apartment. At about the same time, Mack Brown also left the apartment. From a window in the apartment Rodriguez saw the defendant below in the parking lot of a Kentucky Fried Chicken (KFC) restaurant. Momentarily, the defendant looked up toward the apartment window and gestured that there was "nothing down there."

The defendant returned to the apartment and told the OFO enforcer that the men in the KFC parking lot did not appear to him to be Kings. The enforcer insisted that they were and told the defendant to return to the parking lot and "take care of it." The defendant left the apartment.

In two separate signed statements given to the police during their investigation of the crime, the defendant described what had happened in the parking lot and just previously in the apartment. The OFO enforcer had handed the defendant a small semiautomatic gun in the apartment. While standing in the parking lot, the defendant saw four men inside the KFC restaurant and a Toyota automobile parked outside which appeared to belong to the four. The defendant did not believe that the four men were from a rival gang because they had not posted a look-out. He checked back with the enforcer who told him to "do the car up when they [the four men] came out." The defendant understood that the enforcer wanted him to shoot the men.

Returning to the parking lot, the defendant walked over and stood near a parked van. Several minutes later, the four men came out of the restaurant and approached the Toyota. All, except for Falcon, got into the car. Falcon stood outside at the rear of the vehicle. At that point, a heavy set black man, whom the defendant identified in his second statement as Mack Brown, approached the vehicle and started a conversation with Falcon. The black man then pulled out a gun and fired several shots into the car. When the defendant heard the gunshots, he stepped forward toward the car, pointed his gun in that general direction and fired a single shot.

Falcon died from a single bullet fired to the back of his head. The three men inside the car were wounded. Each man testified at the defendant's trial. None of them could identify the defendant as being present at the shooting. Two of them gave a detailed description that matched the description that the defendant offered at trial of the man who had shot them. All three said that the shooter had only one gun; one of them believed that that gun was a .38 caliber revolver.

Daniel Rodriguez, the Commonwealth's witness, testified that, when the defendant returned again to the apartment, he was sweating and appeared "nervous, paranoid." Everyone in the apartment gave the defendant "full props," or congratulations for, as Rodriguez believed, having carried out "the mission." Rodriguez thought that the defendant was made a member of the Solids at that moment. About twenty minutes later, Mack Brown returned to the apartment. He bought some marihuana and left again. Rodriguez later heard from Brown that he planned to leave the Springfield area.

Police officers arrived at the apartment a short while later. They identified and photographed the people there and arrested Rodriguez on an outstanding warrant. One of the officers saw that the defendant was "sweating," "very edgy," and "nervous." Other officers who investigated the crime scene recovered a .22 caliber shell casing near the rear of the vehicle about two feet away from Falcon's body. During the autopsy, a .22 caliber bullet was removed from Falcon's head. Other spent bullets that were recovered from the crime scene or from the bodies of the three wounded victims were all .38 caliber and, according to the Commonwealth's ballistics expert, had all been fired from the same gun. ² The ballistics expert, however, was unable to offer an opinion as to the distance from which Falcon had been shot.

On May 3, 1995, approximately two months after the shootings, the defendant voluntarily met with, and was questioned by, Springfield police officers. He gave two signed statements to the officers concerning his part in the incident. In some respects, the statements were generally consistent with one another and with the testimony that the defendant gave at trial. For example, the defendant consistently conceded that he had been present at a Solids meeting at Alvarez's apartment that night; that he had been asked by the Solid's OFO enforcer to check on possible rival gang members who had been seen moments before in the KFC parking lot; that he had a gun when he went to the parking lot; and that he had seen a third party fire a gun at the Toyota and the four men. In the second statement, which the defendant gave after admitting to the officers that he had not been entirely truthful in the first one, the defendant identified the third party shooter as Mack Brown. In addition, he stated that, when Mack Brown fired a volley of gunfire at the four men, he (the defendant) stepped forward toward the Toyota, pointed his gun in that direction and fired one round. At trial, the defendant denied that he had fired his weapon, did not identify Mack Brown as the assailant with the .38 caliber weapon, and claimed that he had signed the second statement without having read it. He claimed that the police officers fabricated the part about his firing a shot.

1. Instructions on deliberate premeditation. At trial, the Commonwealth proceeded exclusively on the theory that the defendant had acted with deliberate premeditation with the intent to kill the victim when he fatally shot Falcon in the back of the head. The judge instructed the jury on murder in the first degree committed with deliberate premeditation but gave no instructions on murder in the first degree committed with extreme atrocity or cruelty, as the Commonwealth had not pursued that alternate theory at trial. The judge also instructed the jury on murder in the second degree as he was required to do. See Commonwealth v. Brown, 392 Mass. 632, 645, 467 N.E.2d 188 (1984).

The defendant claims error on two fronts in the instructions on murder in the first degree by reason of deliberate premeditation: first, the instructions failed to include the precise words that the defendant "specifically intended to...