Com. v. Pasteur
| Decision Date | 24 July 2006 |
| Docket Number | No. 04-P-850.,04-P-850. |
| Parties | COMMONWEALTH v. Wilson PASTEUR. |
| Court | Appeals Court of Massachusetts |
Alan Jay Black, Springfield, for the defendant.
Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.
Present: GREENBERG, COWIN, & MILLS, JJ.
The defendant, Wilson Pasteur, appeals primarily from his conviction by a Superior Court jury of murder in the second degree on a theory of joint venture.1 He challenges the jury instructions on several grounds, including that the judge explained inaccurately both the concept of malice and the mental state required for joint venture liability, and that it was error for the judge to instruct in the manner that he did on self-defense and to refuse to instruct altogether on provocation. The defendant also asserts that there were errors affecting the trial, including the prosecutor's peremptory challenge, allowed by the judge, of the only black juror on the panel; the erroneous admission of certain expert testimony; the erroneous admission of evidence of prior uncharged offenses; and improprieties in the prosecutor's closing argument. We conclude that the judge's instructions, including his treatment of the issue of self-defense and his omission of an instruction on provocation, were correct. We determine also that the judge did not abuse his discretion in allowing a peremptory challenge of the black juror; that his rulings on evidence were, with one possible exception, justified and, with respect to that exception, that there was no prejudice to the defendant; and that there was nothing improper in the prosecutor's closing argument. Accordingly, we affirm the convictions.
1. Facts. We describe so much of the factual background as is necessary to put the issues in context, reserving certain details for later discussion. The jury could permissibly find that the defendant, nineteen years old at the time, lived in an apartment in Lynn with his mother, brother, and two sisters. The defendant's friend, Eric Miller, had been staying with the defendant's family for several months. The defendant and Miller were part of a gang called "Folk." Miller also associated with Derek Wright, a member of the "Crypt" or "A.K." gang.2
On the evening of June 5, 2000, Miller met the defendant at the apartment and informed him that Wright wanted to go on a "mission." Miller explained that Wright wanted to retaliate for injuries that Wright had sustained earlier that week in an attack by the "Bloods," a rival gang. Wright apparently planned to make use of a .357 caliber handgun that he and Miller had stolen a few days before.
Miller and the defendant walked to Wright's house. Wright, who at that time carried the .357 in the waistband of his pants, described his plan of attack to the defendant. The defendant questioned why all three men should go looking for Bloods when there was only one gun. Wright responded by bringing the defendant and Miller to a fellow gang member's house to procure another stolen gun, this one a .44 caliber handgun. The defendant took the.44, claiming that Miller should not have it because he was a "hot head." Wright loaded the gun for the defendant and told him to "just pull the trigger" in order to fire. The defendant and Miller then switched pants so that the defendant could carry the .44 in his waistband.3
With the defendant and Wright now armed, the three discussed possible locations where they might find Bloods. After discounting several locations for tactical reasons, they decided to go to Lowell Street, where they knew a group of Bloods "hung out." The three walked down Lowell Street and passed a group of Bloods sitting in a white car. When they got to the end of the street, Wright instructed Miller and the defendant to circle around the block and come back up Lowell Street. Wright said that he would count to thirty-seven and then start walking back toward the white car. Wright would then fire at the Bloods from the back of the car while the defendant fired from the front.
The defendant and Miller circled around the block. As they walked, the defendant told Miller that he thought the plan was "stupid" because they or Wright could get shot. Despite this, the two continued to circle the block.4 They reached Lowell Street, but did not see Wright where he had planned to be, so they continued past the Bloods' car. After they walked past the car this time, several of the Bloods got out of the car and began shouting insults at them. The defendant and Miller began to walk faster, but the Bloods followed them down the street. The defendant and Miller both observed the Bloods carrying items, including bricks and sticks, behind their backs or under their shirts. At this point, they also observed Wright holding a gun and wearing a bandana over his face, squatting in the street in front of a white van.
The defendant passed Wright and the white van, then turned and faced the Bloods. As the defendant and the closest Blood exchanged insults, the defendant took out his gun, held it by his side, then raised and pointed the gun. The closest Blood ran. The defendant fired a shot, and the other Bloods ran as well. The defendant attempted to fire a second shot, but the gun would not work. After the defendant fired, Wright "popped up" and fired four or five shots. One of Wright's shots struck the victim, Savorn Prom, in the face and killed him.
Miller, Wright, and the defendant fled from Lowell Street on foot. The defendant and Miller met back at the defendant's apartment, where the defendant unloaded the .44 and put the bullets in a sock. They then took a cab to a friend's house, where the defendant hid the .44. The next day, after hearing that the police were looking for them, the defendant and Miller left for Boston, where they were eventually found hiding in an apartment closet.
The defendant and Wright were both charged with murder; Wright as a principal, and the defendant as a joint venturer. Miller was also charged, but pleaded guilty to manslaughter in exchange for his testimony against the defendant and Wright. In separate trials, Wright was convicted of murder in the first degree on a theory of deliberate premeditation,5 while the defendant was convicted of murder in the second degree as a joint venturer. The defendant now appeals.
2. Instructions on joint venture and malice. The defendant asserts that he was denied due process because the judge gave erroneous and confusing instructions to the jury regarding the malice required for different degrees of murder and the requirement that a joint venturer share the mental state of the principal. Because, in a case of this nature, the malice of the principal and the shared intent of the joint venturer are interrelated, we address them together. We locate neither error nor confusion in the judge's instructions, which accurately described malice, properly distinguished the malice required for premeditated murder in the first degree from that required for murder in the second degree, and correctly informed the jury that the defendant must share the malice required of the principal in order to be found guilty as a joint venturer.
In order for the defendant to be convicted as a joint venturer on the theory relied on by the Commonwealth in this case, there must be proof that satisfies the jury beyond a reasonable doubt that the defendant was present at the scene of the crime, was available by agreement to assist the principal if necessary, and shared with the principal the mental state required for the crime. See Commonwealth v. Caramanica, 49 Mass.App.Ct. 376, 381, 729 N.E.2d 656 (2000); Commonwealth v. Tavares, 61 Mass.App.Ct. 385, 388-389, 810 N.E.2d 1242 (2004). Consequently before attempting to answer whether the principal's mental state was in fact shared by the alleged joint venturer, the analysis must begin with an understanding of the principal's mental state.
For the principal to have committed a murder, he must have acted with malice. Murder in the first degree on a theory of deliberate premeditation may be established only where there is evidence of malice in the form of a specific intent to kill. See Commonwealth v. Simpson, 434 Mass. 570, 588, 750 N.E.2d 977 (2001); Commonwealth v. Gaboriault, 439 Mass. 84, 92, 785 N.E.2d 691 (2003). Thus, it must be shown that an individual "not only. . . consciously intended to take certain actions, but that he also consciously intended certain consequences," Commonwealth v. Gunter, 427 Mass. 259, 269, 692 N.E.2d 515 (1998), here, that a death would result. Malice for purposes of murder in the second degree may also be premised on a specific intent to kill (absent the deliberate premeditation necessary for murder in the first degree). It is also present when an individual has a specific intent to cause grievous bodily injury and a death occurs, or when an individual intentionally takes action where in the circumstances a reasonable person would know that there was "a plain and strong likelihood that death would follow the contemplated act." Commonwealth v. Gaboriault, supra; Commonwealth v. Souza, 34 Mass.App.Ct. 436, 440, 612 N.E.2d 680 (1993).
In the present case, the judge correctly explained that, to convict the defendant of murder as a joint venturer, the jury must first determine that Wright, the alleged principal, had committed murder in either the first or second degree. The judge outlined the elements of each type of murder, described the kinds of intent that constituted malice in connection with each offense, and distinguished the malice required for murder in the first degree from the malice required for murder in the second degree. The defendant objects that the judge did not define the concepts in terms of "specific intent" and "general intent." However,...
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