Com. v. Lima, 89-P-1288

• Decision Date: 03 January 1991
• Docket Number: No. 89-P-1288,89-P-1288
• Citation: 562 N.E.2d 100,29 Mass.App.Ct. 490
• Parties: COMMONWEALTH v. Warren LIMA.
• Court: Appeals Court of Massachusetts

Page 100

562 N.E.2d 100

29 Mass.App.Ct. 490

COMMONWEALTH v. Warren LIMA.

No. 89-P-1288.

Appeals Court of Massachusetts Bristol.

Argued Sept. 13, 1990.

Decided Nov. 9, 1990.

Further Appellate Review Denied

Jan. 3, 1991.

Ira L. Schreiber, Cranston, Rhode Island for defendant.

Beth R. Levenson, Asst. Dist. Atty., for the Commonwealth.

Before DREBEN, KAPLAN and PORADA, JJ.

DREBEN, Justice.

Her hold laden with bales of marijuana disguised as animal and bird feed, the fishing vessel "The Southern Star" docked at New Bedford on the night of July 22, 1983. Unbeknownst to the persons interested in her cargo, officers of the Bristol County drug task force, with the aid of a full moon, saw numerous persons unloading packages from "The Southern Star" into two rented trucks, a Ryder and a Hertz. Police officers followed the Ryder truck to a motel, arrested the driver, returned to the dock, and announced their presence.

Silhouetted figures on and near the vessel scattered, some of them jumping into the water. A number of persons were arrested at the scene. Although the defendant was not arrested at that time, he was subsequently indicted for trafficking in over 10,000 pounds of a controlled substance. Four hundred and sixteen bales of marijuana, having a gross weight of over 16,000 pounds, were seized by the police.

The defendant was convicted of the charged offense on a theory of joint venture. ¹ In his appeal, he claims, among other things, that the judge impermissibly invaded the fact-finding province of the jury in his discussions of joint venture as it affected the admissibility of evidence. Because we conclude that reasonable jurors could have interpreted the judge's comments as a determination by him that the Commonwealth had shown the existence of a joint venture in which the defendant was a participant, we reverse the conviction and remand for a new trial. Other issues raised by the defendant will only be discussed if they are likely to arise at his retrial.

1. Judge's evidentiary instructions on joint venture. It was obvious from the start of the trial that many people were involved in the project of unloading "The Southern Star." The Commonwealth, in presenting items of evidence relating to particular participants, represented that it would subsequently introduce evidence to show that the defendant was part of the joint enterprise. This procedure was proper. See Commonwealth v. Borans, 379 Mass. 117, 145 n. 26, 393 N.E.2d 911 (1979). If the Commonwealth fell short of its representations, the evidence would have been subject to a motion to strike. ² Ibid. The Commonwealth met its burden, the defendant does not contend otherwise, and the judge correctly made a preliminary ruling that certain evidence was admissible. See Commonwealth v. Beckett, 373 Mass. 329, 337 n. 3, 366 N.E.2d 1252 (1977); Commonwealth v. Bongarzone, 390 Mass. 326, 340, 455 N.E.2d 1183 (1983). The difficulty arises because, contrary to the admonition in Commonwealth v. Beckett, supra 373 Mass. at 337 n. 3, 366 N.E.2d 1252, ³ that ruling was made known to the jury, and the judge did not sufficiently make clear to them that his initial decision should not affect their determination whether the defendant was a participant in a common enterprise.

The judge discussed the question of joint enterprise many times. On the second day of trial, when defense counsel objected to the introduction of a key to a motel room taken from the driver of the Ryder truck, the judge stated:

"I'm admitting this particular key in evidence as a key which, as was stated by the witness--and, of course, it's for you to determine whether or not you find the witness credible--which was seized, he claims, from this man [the driver of the Ryder truck].

"Now, it's only admissible in evidence in this particular trial if there is a showing by the Commonwealth beyond a reasonable doubt that [the driver] and the defendant Lima were joint venturers in a criminal enterprise, and that at the time Mr. Lima shared the same state of mind that [the driver] had. And unless that is shown, then it would be inadmissible and I would strike this key." (Emphasis supplied.)

Again, when the defendant objected to the introduction of a hotel receipt removed from a bag in the cab of the Ryder truck, and later to the introduction of the rental receipt of the truck, the judge said as to each of the two documents that they would only be admissible in evidence against Lima if the Commonwealth was successful in showing a joint criminal enterprise.

On the afternoon of the second day, after correctly explaining what the Commonwealth had to prove beyond a reasonable doubt to establish a joint venture, the judge continued:

"The defendant's guilt under a joint venture theory is established when it is shown beyond a reasonable doubt that he intentionally assisted the actual perpetrators in the commission of the offense, and that he did this while sharing the mental state required for that particular crime.

"So, again, more evidence is going to be received this afternoon in an attempt to show such a thing to your satisfaction. And it's being admitted by me on the assumption that the Commonwealth will prove to your satisfaction beyond a reasonable doubt that, in fact, this defendant did associate himself in such a criminal venture.

"In the event that the Commonwealth fails to show that, then under such circumstances I would strike out the evidence." (Emphasis supplied.)

On the fifth day, a photograph of one of the persons arrested was admitted, the judge saying:

"Ladies and gentlemen of the jury, apparently this is a photograph of a person who was arrested that evening. And, again, this evidence would be only material to the issues that are being tried in this case if it can be shown that the individual depicted in the photograph was a participant with the defendant, Mr. Lima, in a joint criminal enterprise and that, at the time that the joint criminal enterprise was in effect, both Mr. Lima and the individual that's depicted in the photograph shared the same intent, same state of mind. And if that can't be shown, then the picture would be inadmissible and would be excluded and I would strike it from the record." (Emphasis supplied.)

Defense counsel objected to the judge's instructions concerning evidence that had been admitted de bene, arguing that the "clear implication" of the judge's instructions was "that if the Court fails to strike the pertinent exhibits, then the jury may reasonably infer that the Court has ruled that there is a nexus between each of those alleged joint venturers reflected in the pertinent exhibits and the defendant, and that the joint venture exists." To cure this difficulty, defense counsel asked that the exhibits be withdrawn, or, in the alternative, that a mistrial be granted. Instead, the judge instructed the jury as set forth in the margin. ⁴

Defense counsel requested that the judge add words to the effect that, "if I do admit this testimony, then you are not to presume from my action that I have supplanted your decision-making power." The judge did not do so.

Although the jury were properly informed that it was for them to determine whether or not Lima was a participant in a joint venture, see note 4, supra, and were again so instructed in the judge's final charge, they were also informed at least twice that unless the Commonwealth proved the existence of a joint venture beyond a reasonable doubt the judge would strike the evidence. In these circumstances, we think reasonable jurors could have been misled and could have believed that the judge had determined that question in the Commonwealth's favor. Cf. Commonwealth v. Moreira, 385 Mass. 792, 796, 434 N.E.2d 196 (1982). Even if the jurors understood that they, too, had to decide the same question, their possible misunderstanding of the judge's action created a serious potential for prejudice. "The influence of the trial judge on the jury 'is necessarily and properly of great weight' and 'his lightest word or intimation is received with deference, and may prove controlling.' " Commonwealth v. Hanscomb, 367 Mass. 726, 732, 328 N.E.2d 880 (1975) (Hennessey, J., concurring). Commonwealth v. Wanderlick, 12 Mass.App.Ct. 970, 972, 428 N.E.2d 328 (1981).

Unlike Commonwealth v. Wanderlick, supra (where the defendant made a statement admitting his guilt), and United States v. August, 745 F.2d 400, 404-406 (6th Cir.1984) (where strong curative instructions were given), we can not say that the error was harmless beyond a reasonable doubt. See Commonwealth v. Hanger, 377 Mass. 503, 511, 386 N.E.2d 1262 (1979). See also Commonwealth v. Skinner, 408 Mass. 88, 97, 556 N.E.2d 1014 (1990). This is so despite the following substantial evidence linking the defendant to the drug venture. The rental agent from Hertz testified that Hertz truck no. 91679 (a police photograph of the Hertz truck at dockside had the same number) was rented by someone named Warren Lima, that the agent had seen Lima's driver's license, and that the man who rented the truck was the man whose photograph appeared on his license. ⁵ A handwriting expert opined, based on other documents signed by the defendant, that the signature on the rental agreement was the defendant's.

The other evidence linking Lima to the crime came mainly from three participants in the venture who had pleaded guilty but had not yet been sentenced--the driver of the Ryder truck and two other persons. Their plea agreements provided that in exchange for truthful testimony, the district attorney would recommend that, instead of much longer prison sentences, two of the joint venturers (one of whom was the driver) should receive three-to-five year suspended sentences to M.C.I. Cedar Junction, and that the third...