Com. v. Smith

• Decision Date: 11 January 2008
• Docket Number: SJC-08846.
• Citation: 450 Mass. 395,879 N.E.2d 87
• Parties: COMMONWEALTH v. Sam SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

879 N.E.2d 87

450 Mass. 395

COMMONWEALTH v. Sam SMITH.

SJC-08846.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued October 5, 2007.

Decided January 11, 2008.

David H. Mirsky for the defendant.

Kathleen Calico, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, COWIN, CORDY, & BOTSFORD, JJ.

BOTSFORD, J.

In June, 2001, a jury convicted the defendant of murder in the first degree¹; in 2006, a judge, who was not the trial judge, denied the defendant's motion for a new trial. The defendant makes several arguments on appeal, including that the judge erroneously admitted evidence of the defendant's gang affiliation, introduced prejudicial evidence during his final jury instructions, and allowed the prosecutor's peremptory challenge of a juror claimed to be transgendered or homosexual. He argues also that there was insufficient evidence to warrant his conviction as a joint venturer, that his only witness was improperly impeached with evidence of a prior conviction, and that the prosecutor's closing argument contained several impermissible statements. We affirm the conviction and decline to grant relief under G.L. c. 278, § 33E. We also affirm the denial of the defendant's motion for a new trial.

1. Background. We summarize the facts as the jury could have found them, reserving further details for discussion of the specific issues raised. On August 16, 1991, the victim, Steven Gaul, was standing with several friends close to a park bench in Ramsey Park, near Lenox Street in the Roxbury section of Boston. The victim lived in Columbia Point, in the Dorchester section of Boston, and was a member of a gang of young men from Columbia Point known as the Columbia Point Dawgs. The defendant and two other men, K.J. Walker and David Walker, all wearing black hooded sweatshirts, entered the park. The defendant and his two companions were all associated with the Lenox Street gang. The three men approached the victim, and K.J. Walker shot him once in the stomach and then ran out of the park. The victim fell to the ground. The defendant then stood above him and fired several shots directly at him. The defendant's gun jammed and there was a pause in the shooting as he removed the bullets wedged in the gun's chamber. As he did so, the victim reached up with his hands raised. The defendant said, "I told you I'm gonna get you, bitch," and, after reloading the gun, fired several more shots at the victim, who fell back to the ground. Patrick Culbreath, a friend of the victim, was watching from across the park and fired several shots at the defendant, who returned Culbreath's fire. The defendant then walked toward the park's entrance and was joined by Steven Kindell, who was wearing a white shirt and riding a bicycle. The two left the park together.

Kerryn Fernandes and her father, Julio Fernandes, observed the shooting as they drove by the park, although they could not identify the faces of the participants. They were on their way to an apartment located one block from the park. They parked their vehicle near the park, and as they walked from the vehicle to the apartment, Kerryn saw the defendant and Steven Kindell walking toward them on the sidewalk. Kindell, whom Kerryn knew from the neighborhood and had previously dated, said "hi" to Kerryn. Kerryn also knew the defendant, and knew that he and Kindell both lived nearby. She recognized the clothes the pair were wearing as identical to the clothes of the shooter and his companion on the bicycle, both of whom she had observed minutes earlier in the park. She turned to her father and said, "Dad, there they are."

2. Gang-related activity. At trial, the Commonwealth offered testimony of Sergeant Robert Merner of the Boston police department, who worked in the department's anti-gang violence unit from its inception in May, 1990, and inferentially through 1991. Merner briefly described gangs in Boston in general terms, and then testified more particularly about the Lenox Street gang, whose members he saw congregating near Ramsey Park in 1990 and 1991. He knew the defendant, knew that the defendant was a member of the Lenox Street group,² and would frequently see the defendant in the early 1990's in the company of a number of individuals, including David Walker, K.J. Walker, and Steven Kindell. Merner was also familiar with the Columbia Point Dawgs, knew the victim as well as other young men in that group, and was aware that in 1991 there was a conflict between the Lenox Street group and the Columbia Point Dawgs over the drug trade in Ramsey Park. Finally, Merner testified that he was aware of separate incidents in March and November of 1991, when a total of four young men from Columbia Point were shot, at least one of them at a location next to Ramsey Park.³

a. Evidence of gang affiliation and activity. The defendant objected before and during trial to the admission of evidence relating to his gang affiliation and to the shootings that took place in March and November, 1991. He raises this objection again on appeal. He makes three arguments: (1) the evidence of gang activity and gang affiliations was irrelevant to show the identity of the person or persons who committed the murder of the victim, and admission of this evidence was prejudicial because its effect was to show bad character and criminal propensity on the defendant's part; (2) the evidence presented by Sergeant Merner about the two gangs and the other shootings was inadmissible because it was based on hearsay; and (3) the judge did nothing to minimize the inherent prejudice of this evidence by, for example, screening the pool of potential jurors for gang-related bias or giving limiting instructions during and at the end of the trial. Given the defendant's objections at trial, we review these nonconstitutional claims for prejudicial error. See Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994).

i. Gang activity and affiliations. There was no error in admitting evidence concerning the Lenox Street gang and the Columbia Point Dawgs, or the defendant's membership in the former. The Commonwealth's theory was that the hostility between the gangs over use of Ramsey Park as a venue for drug sales provided a motive for killing the victim, a member of the Columbia Point Dawgs, while he was in the park. The Commonwealth also presented the case on the theory that the defendant and other Lenox Street gang members killed the victim as part of a joint venture. We have upheld the admission of evidence of gang affiliations on the issues of motive and joint venture. See, e.g., Commonwealth v. Swafford, 441 Mass. 329, 332, 805 N.E.2d 931 (2004), and cases cited. The defendant asserts that evidence about his gang affiliation should have been excluded because it did not help to identify him specifically as the individual responsible for the murder. Such a showing, which is required when prior bad acts are used for identification purposes, see Commonwealth v. Baker, 440 Mass. 519, 530-531, 800 N.E.2d 267 (2003), is beside the point when evidence of gang affiliation is used for purposes of showing motive or joint venture. See Commonwealth v. Swafford, supra.

ii. Sergeant Merner. The prosecutor asked Merner about his sources of intelligence gathering as a member of the anti-gang violence unit. Merner answered that he obtained information from police incident reports as well as the "use of informants, street sources of information, the school police, teachers, probation officers, enemies." The defendant takes from this response that essentially all of Merner's testimony was inadmissible because it was based on hearsay. This conclusion is not correct. In large part, Sergeant Merner testified about his own observations of the defendant and his associates (for example, K.J. Walker, David Walker, and Steven Kindell) during Merner's very frequent visits to Ramsey Park and its surroundings in 1990 and 1991. He also testified to personal familiarity with the young men who lived at Columbia Point and who were members of the Columbia Point Dawgs, including the victim. Even if Merner's testimony about the defendant's and victim's respective gang affiliations may have constituted arguably improper opinion evidence and may have been based on hearsay sources, any error was harmless because the evidence was cumulative; other witnesses testified from personal knowledge essentially to the same effect.⁴ See Commonwealth v. Thomas, 429 Mass. 146, 159-160, 706 N.E.2d 669 (1999) iii. Minimizing prejudice. The defendant is correct that in cases involving the introduction of evidence about gang affiliations, we have stressed that trial judges should take steps to minimize the prejudicial impact of this evidence. See, e.g., Commonwealth v. Swafford, 441 Mass. at 332, 805 N.E.2d 931, citing Commonwealth v. Correa, 437 Mass. 197, 201, 770 N.E.2d 435 (2002); Commonwealth v. Smiley, 431 Mass. 477, 484, 727 N.E.2d 1182 (2000); Commonwealth v. Maldonado, 429 Mass. 502, 504, 709 N.E.2d 809 (1999). While the defendant contends that the judge failed to undertake any steps in this case to ameliorate the prejudice of the gang evidence, the judge did give a lengthy limiting instruction as part of his final charge. It would have been preferable had the judge also screened potential jurors during the empanelment process about their ability to hear gang-related evidence and remain impartial, and had he given a limiting instruction at the time the evidence was introduced during the trial, but his failure to do so does not constitute an error warranting reversal.

b. Jury instructions. The judge included in his final instructions a charge defining joint venture and then turned to the subject of prior and subsequent bad acts:

"We say in the law that evidence may not be offered at a trial that a defendant may have previously misbehaved for the purpose of showing his bad character or propensity to commit the crime for...