Com. v. Maldonado

Decision Date04 May 1999
Citation709 N.E.2d 809,429 Mass. 502
PartiesCOMMONWEALTH v. Jose MALDONADO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

James A. Couture, Belchertown, for the defendant.

Deborah D. Ahlstrom, Assistant District Attorney, for the Commonwealth.

Present: WILKINS, C.J., LYNCH, FRIED, MARSHALL, & IRELAND, JJ.

FRIED, J.

The defendant, Jose Maldonado, appeals from two convictions of murder in the first degree, as well as one conviction of armed assault with intent to murder, three convictions of assault and battery by means of a dangerous weapon, and one conviction of illegal possession of a firearm. There is no basis for relief pursuant to our power under G.L. c. 278, § 33E, to order a new trial or reduce the murder verdicts.

I

On the evening of December 6, 1995, the defendant, a member of the Latin Kings street gang, and three fellow gang members, Jason Souza, Thomas Birks, and Jose Velez went, by automobile, to a bar in Holyoke. After consuming marijuana and alcohol, they were joined by Jose Sanchez, Felix Colon, and Linda Dukas. Sanchez had reportedly made unwanted sexual advances toward the sister of a high-ranking gang member who was in prison in Florida. The defendant had been ordered to exact revenge by killing Sanchez. He had previously shared these orders with Souza, Birks, and Velez. After the bar closed at 2 A.M. the group spent some time at a convenience store then bought beer and went to Springdale Park. Once at the park, everyone but the defendant left the vehicles. Souza then ordered Dukas to return to the vehicles, which she did. The defendant then stepped out of his vehicle, approached Colon, and shot him once in the head. He then went to the side of the vehicle and shot Sanchez in the head and reached in and shot Dukas in the neck. The defendant noticed Colon moving on the ground and fired a second shot at Colon. He then shot Sanchez again, went over and shook Dukas and, seeing she was still alive, shot her a second time as well. Out of ammunition, the defendant drove away from the scene with Souza, Birks, and Velez.

Dukas, however, survived the attack and, once the defendant and the others had left, ran bleeding from the scene and knocked on neighborhood doors in an attempt to summon help. When the police arrived, Dukas, unable to speak due to damage to her vocal chords, directed the officers to the park, where they found the bodies of Sanchez and Colon. After undergoing surgery, Dukas was questioned by the police. She indicated in writing that "Jose" shot her. She indicated that she did not know Jose's last name, but she led the police to the defendant by providing them with his street name, "Pops."

After a six-day trial, the defendant was found guilty on all charges by a jury. He was sentenced to two life terms on the murder convictions, from nineteen to twenty years on the conviction of armed assault with intent to murder, ten years on each of the three convictions of assault by means of a dangerous weapon, and from two and one-half to five years on the firearms conviction, all to be served concurrently.

II
A

The defendant contends that the judge erred by allowing evidence of the defendant's membership in the Latin Kings street gang. The defendant filed a pretrial motion in limine to exclude any evidence of his association with gangs. The judge denied the motion, allowing the prosecution to refer to anticipated evidence of gang involvement during opening arguments and allowing evidence of gang membership.

The judge did not err in allowing this evidence to be heard by the jurors. The Commonwealth's theory was that the shootings were ordered as retribution by a leader of the Latin Kings. Evidence of gang affiliation was relevant to the defendant's motive and state of mind. Commonwealth v. Wilson, 427 Mass. 336, 349, 693 N.E.2d 158 (1998) (evidence which shows defendant's state of mind found probative); Commonwealth v. Weichell, 390 Mass. 62, 73, 453 N.E.2d 1038 (1983), cert. denied, 465 U.S. 1032, 104 S.Ct. 1298, 79 L.Ed.2d 698 (1984) ("the Commonwealth is entitled to introduce all relevant evidence of motive"); Commonwealth v. Borodine, 371 Mass. 1, 8, 353 N.E.2d 649 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977) ("if there is evidence of motive, that evidence is admissible"). It was within the discretion of the judge to weigh the probative value of the evidence against its prejudicial effect. Commonwealth v. Dunn, 407 Mass. 798, 807, 556 N.E.2d 30 (1990) (determination "whether the probative value of relevant evidence is outweighed by its prejudicial effect [is] within the sound discretion of the judge"); Commonwealth v. St. Germain, 381 Mass. 256, 271, 408 N.E.2d 1358 (1980) ("resolution of the question whether evidence of motive is more probative than prejudicial lies within the sound discretion of the trial judge"). As there was significant evidence indicating that the defendant's gang membership was essential to understanding the motivation behind the crimes, the judge was correct in allowing the evidence to be presented to the jury. See Commonwealth v. Marrero, 427 Mass 65, 67-68, 691 N.E.2d 918 (1998) (evidence of involvement in drug dealing business admissible where relevant to motive for killing); Commonwealth v. Rivera, 424 Mass. 266, 273, 675 N.E.2d 791 (1997), cert. denied, --- U.S. ----, 119 S.Ct. 346, 142 L.Ed.2d 285 (1998) (evidence should be admitted where it is necessary to explain criminal act); Commonwealth v. Bradshaw, 385 Mass. 244, 269-270, 431 N.E.2d 880 (1982) (prosecution "entitled to present as full a picture as possible of the events surrounding the incident itself").

The judge took steps to minimize the prejudicial impact of this testimony. The judge questioned prospective jurors as to whether evidence of gang involvement or affiliation would prevent them from rendering an impartial verdict. Where jurors' answers were ambivalent or ambiguous the judge followed up, and where a juror doubted his ability to render impartial justice, he was excused. The judge again questioned the jurors midway through the trial after one juror had expressed fear for his safety after being approached at his place of work by a coworker when he went to pick up his pay check. At this point, the juror who expressed fear was removed, and the judge individually questioned the remaining jurors to assure that they had not been similarly contaminated by news reports or by the dismissed juror. The judge also gave the jurors a lengthy limiting instruction regarding the use of evidence of gang affiliation. 1 The evidence of gang membership was relevant, and the judge's handling of the matter was exemplary.

B

The defendant also complains that the trial was tainted by extraneous influence. As has been said, on the fifth day of trial, the defendant moved for a mistrial on the ground that one of the jurors had expressed fear of retribution due to the defendant's gang association, and the judge, after questioning all members of the jury, discharged the juror who had expressed trepidation but determined that the remainder of the jury had not been contaminated and denied the defendant's motion for a mistrial. 2

The defendant also points out that one of the jurors admitted that he had heard either complete or partial news reports of the trial in which the defendant was described as an "enforcer" and a "hit man." 3 He also mentioned that some other members of the jury had been speculating as to the reason that "there was one juror that left this morning." This juror, however, was designated as an alternate and did not participate in the deliberations resulting in the defendant's convictions.

The trial judge has "discretion in addressing issues of extraneous influence on jurors discovered during trial." Commonwealth v. Trapp, 423 Mass. 356, 362, 668 N.E.2d 327, cert. denied, 519 U.S. 1045, 117 S.Ct. 618, 136 L.Ed.2d 542 (1996). See Commonwealth v. Gallagher, 408 Mass. 510, 517, 562 N.E.2d 80 (1990), citing Commonwealth v. Amirault, 404 Mass. 221, 232, 535 N.E.2d 193 (1989) ("Whether to declare a mistrial is within the trial judge's discretion"). The judge here took sufficient steps to satisfy herself that the jury remained impartial. She removed the one jury member she deemed incapable of fulfilling his duty, questioned the remaining jurors to assure herself of their impartiality, and administered thorough instructions regarding the duty of impartiality. In these circumstances, it was within the judge's discretion to determine whether the jury had remained impartial. There was no need to declare a mistrial. Commonwealth v. Kamara, 422 Mass. 614, 616-618 & n. 1, 664 N.E.2d 825 (1996) (within trial judge's discretion not to declare mistrial after dismissing deliberating juror who told fellow jurors that she knew defendant, that he was member of a gang and that she feared for her safety, and that she thought he committed crime in question).

C

The defendant further contends that the judge erred in allowing the prosecution to admit, over the defendant's objection, four autopsy photographs of the murdered victims. The defendant argues that, as the Commonwealth did not try him on a theory of extreme atrocity or cruelty, the only possible purpose for the admission of these photographs was "to inflame and shock the jury."

Although the defendant was not tried on a theory of extreme atrocity or cruelty, the Commonwealth was nevertheless obligated, in order to sustain the charge of murder in the first degree, to prove beyond a reasonable doubt that the defendant committed the killings with deliberate premeditation and malice aforethought. This is true whether or not the defendant actively disputes premeditation. Commonwealth v. Jackson, 428 Mass. 455, 464, 702 N.E.2d 1158 (1998), citing Commonwealth v. Bastarache, 382 Mass. 86, 106, 414 N.E.2d 984 (1980). The proximity of the defendant to the victims at the time the shots...

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