Com. v. Sok

• Decision Date: 20 May 2003
• Citation: 439 Mass. 428,788 N.E.2d 941
• Parties: COMMONWEALTH v. Noeun SOK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 941

788 N.E.2d 941

439 Mass. 428

COMMONWEALTH v. Noeun SOK.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued February 7, 2003.

Decided May 20, 2003.

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Carlo A. Obligato, Committee for Public Counsel Services, for the defendant.

Loretta M. Lillios, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, & SOSMAN, JJ.

SPINA, J.

The defendant, Noeun Sok, was convicted of murder in the first degree on the theory of extreme atrocity or cruelty. On appeal he asserts error in (1) the denial of his motion for a required finding of not guilty as to murder by extreme atrocity or cruelty; (2) various evidentiary rulings; (3) the instructions that permitted the jury to consider the murder weapon as evidence of both malice and extreme atrocity or cruelty; and (4) the absence of an instruction permitting the jury to consider evidence that mitigated against a verdict of extreme atrocity or cruelty or that instructed them to determine that the absence of factors listed in Commonwealth v. Cunneen, 389 Mass. 216, 449 N.E.2d 658 (1983) (Cunneen factors), could weigh against such a verdict; and (5) a conflict between the instruction that informed the jury that they shall determine the degree of murder, and the instruction that directed the jury to return a verdict of the highest degree of guilt that the Commonwealth had proved beyond a reasonable doubt. The defendant also asks us to exercise our power under G.L. c. 278, § 33E, and reduce the conviction to voluntary manslaughter. We affirm, and decline to reduce the conviction or order a new trial.

1. Facts.

The jury could have found the following facts. At approximately 3 P.M. on January 12, 1999, the defendant and a friend, Noeun Phan, both fifteen years old, were walking on Central Street in Lowell, to mail a letter. They were members of the Union Boys Crew (UBC), a local gang.

At the same time and place, but walking toward them from the opposite direction were four older teens, Keoudone Onexaivieng (victim), Shane Downs, German Acevedo, and Edwin Rosa. They were going to Acevedo's house to play video games. The victim and Downs were members of the Tiny Rascal Gang (TRG), a rival to the UBC. Acevedo and Rosa were affiliated with the Platoons, a gang aligned with the TRG.

As the groups neared, the defendant and Phan gave the victim "a real dirty look." Phan bumped into Acevedo, who responded with a push.¹ The victim bent down as if to pick up something that the defendant believed was a rock that the victim was going to throw at him and Phan. The defendant drew a Samurai sword from a sheath hidden under his coat. The sword was approximately thirty inches long, of which the blade was approximately fifteen inches. The victim and his three friends fled. There was no evidence that they had any weapons.

The defendant and Phan pursued them. At first, the group of four fled together, but the victim and Acevedo broke away and the defendant and Phan followed them. As the defendant and Phan closed the gap on the victim, who was trailing Acevedo, Phan yelled, "Get him. Get him." The defendant shouted, "If you want to fuck with me, I'll get you for it." The victim lost ground when he turned into a passageway by a locksmith shop and slipped on some ice. As the victim stopped to cross a street, the defendant caught up to him and thrust the sword with an upward motion into the victim's right lower back, pushing the blade more than six inches upward and toward the center of the victim's torso. The blade pierced the inferior vena cava, the small bowel (in two places), and the inferior mesenteric vein, and nearly passed through the front of the victim's body. Notwithstanding his injuries, the victim continued to run and the defendant continued his pursuit, sword in hand, until the victim collapsed. When the chase ended, the defendant and Phan jumped up and down and "looked kind of happy."

When emergency personnel arrived, the victim was lying in a large pool of blood, bleeding profusely, conscious, and moaning from excruciating pain. He was disoriented and combative toward the emergency medical technicians who were attending to him. He was taken to the University of Massachusetts Medical Center in Worcester where he underwent surgery and received seven and one-half liters of blood, more than 150 per cent of the volume of his own blood. Five hours later he died.

2. Motion for a Required Finding of Not Guilty.

The defendant argues that his motion for a required finding of not guilty as to murder by extreme atrocity or cruelty should have been allowed because death was inflicted by only a single blow that did not surpass the cruelty inherent in any killing. See Commonwealth v. Eisen, 358 Mass. 740, 746, 267 N.E.2d 229 (1971).

"We have delineated a number of factors which a jury can consider in deciding whether a murder was committed with extreme atrocity or cruelty. These include indifference to or taking pleasure in the victim's suffering, consciousness and degree of suffering of the victim, extent of physical injuries, number of blows, manner and force with which delivered, instrument employed, and disproportion between the means needed to cause death and those employed." Commonwealth v. Cunneen, supra at 227, 449 N.E.2d 658. A conviction under this theory of murder may be supported by a showing of any one or more of the Cunneen factors. See Commonwealth v. Patterson, 432 Mass. 767, 773, 739 N.E.2d 682 (2000). Here, there was evidence of several Cunneen factors to support a finding of extreme atrocity or cruelty under the standard set forth in Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), to be applied when deciding a motion for a required finding of not guilty.

The defendant chased the victim a considerable distance with his sword, yelling at him during the pursuit; he continued the chase even after stabbing the victim, and jumped up and down in celebration, indifferent to the victim's suffering. The victim, still conscious for some considerable period of time, experienced severe pain from his extensive internal injuries. The medical examiner testified that the sword was thrust into the victim's lower back with "significant force in a sustained upward direction into the body," causing extensive internal injuries and nearly impaling him. See Commonwealth v. Glass, 401 Mass. 799, 803, 519 N.E.2d 1311 (1988) (jury could convict on extreme atrocity or cruelty based on single five-inch deep stab wound where defendant turned knife in victim's body to maximize injury). The sword, capable of impaling someone, had a handle long enough to wield with two hands for maximum thrust. The fact that death was inflicted by a single blow did not preclude a finding of extreme atrocity or cruelty. See id. The motion for a required finding of not guilty was correctly denied.

3. Evidentiary Issues.

(a) Evidence of intent to kill. The judge admitted, as evidence of the defendant's intent to kill, a book cover found inside the defendant's school locker two days after the stabbing. The book cover had graffiti on it stating, "Present Union Boys Crew Roach Killer." The term "roach," as explained by the Commonwealth's gang expert, was a term of disrespect used by members of the UBC toward members of the TRG. The defendant timely objected, and now argues that the evidence was not probative of a specific intent to kill the victim, but rather was a general statement of animosity toward a group of people, and as such constituted inadmissible character evidence, namely, that the defendant was a killer and that he had a general disposition to kill, citing Commonwealth v. Trapp, 396 Mass. 202, 206, 485 N.E.2d 162 (1985), S.C., 423 Mass. 356, 668 N.E.2d 327, cert. denied, 519 U.S. 1045, 117 S.Ct. 618, 136 L.Ed.2d 542 (1996). We disagree.

The book cover was admissible to show the defendant's inchoate intent to kill a member of the TRG, of which the victim was a member, when the opportunity arose. The defendant gave a statement to the police in which he admitted that he knew that the victim was a member of the TRG. Where evidence of "the defendant's gang membership was essential to understanding the motivation behind the crime[ ]," the judge acted within his discretion to admit the book cover. See Commonwealth v. Maldonado, 429 Mass. 502, 504, 709 N.E.2d 809 (1999). The evidence explained why the defendant would carry a sword under his coat, and the defendant's taunts as he chased the victim. See Commonwealth v. Rivera, 424 Mass. 266, 267, 675 N.E.2d 791 (1997), cert. denied, 525 U.S. 934, 119 S.Ct. 346, 142 L.Ed.2d 285 (1998); Commonwealth v. Perez, 47 Mass. App.Ct. 605, 608, 715 N.E.2d 76 (1999).

The judge mitigated any potential for unfair prejudice by following procedures we approved in Commonwealth v. Maldonado, supra at 505-507 & n. 1, 709 N.E.2d 809. During jury selection the judge questioned prospective jurors about their ability to consider anticipated evidence about gangs solely on the question of motive or intent and not consider it as evidence of bad character or propensity to commit crimes. He satisfied himself that jurors who remained available for service could be impartial in the face of such evidence and follow his limiting instructions. The judge gave forceful limiting instructions as the gang evidence was admitted, and again in his final charge. Evidence about gangs permeated the trial, with the victim, the victim's companions, the defendant and Phan all affiliated with rival gangs. The evidence of the book cover depicting that rivalry in lethal terms was not especially prejudicial. We note that the jury acquitted the defendant of murder in the first degree under the theory of deliberate premeditation an indication that they remained dispassionate about the evidence and were able to follow the judge's instructions.

There is no merit to the defendant's claim...