Com. v. Valentin

• Decision Date: 08 May 1995
• Citation: 649 N.E.2d 1079,420 Mass. 263
• Parties: COMMONWEALTH v. Pedro VALENTIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1079

649 N.E.2d 1079

420 Mass. 263

COMMONWEALTH v. Pedro VALENTIN.

Supreme Judicial Court of Massachusetts Suffolk.

Argued March 6, 1995.

Decided May 8, 1995.

Shawn C. Salter (Frank G. Kelleher with him) for defendant.

Ralph C. Martin, Dist. Atty., & Katherine E. McMahon, Asst. Dist. Atty., for Com., submitted a brief.

Before WILKINS, ABRAMS, NOLAN and GREANEY, JJ.

GREANEY, Justice.

On May 15, 1992, the defendant, Pedro Valentin, was convicted of murder in the first degree by reason of deliberate premeditation. ¹ The Commonwealth prosecuted the case on the theory that the defendant and his brother, Simon Valentin, had acted as joint venturers in committing the murder. ² Represented by new counsel on appeal, the defendant argues that, because the Commonwealth's evidence was insufficient, as matter of law, to convict him of murder as a joint venturer, he was entitled to the allowance of his motion for a required finding of not guilty under Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979). We conclude that the Commonwealth's evidence was sufficient to warrant the defendant's conviction. The defendant also argues that he is entitled to a new trial because (1) the prosecutor improperly exercised a peremptory challenge to exclude the sole Hispanic person from the jury venire; (2) the judge erred in admitting testimony about Simon's drug activity; (3) he was prejudiced by evidence indicating that he had a prior criminal record and engaged in prior misconduct; and (4) there were instances of prosecutorial misconduct which deprived him of a fair trial. We reject these arguments. Finally, we conclude that there is no basis to exercise our authority under G.L. c. 278, § 33E (1992 ed.), to order a new trial or direct the entry of a conviction of a lesser degree of guilt. Accordingly, we affirm the judgment of conviction.

1. Required finding. Based on the Commonwealth's evidence, the jury could have found the following facts. In July, 1991, Angel Ruidiaz was selling crack cocaine for Simon. The victim wanted to buy some crack cocaine from Ruidiaz, but did not have enough money so he stole some cocaine from Ruidiaz. Ruidiaz paid Simon $40 so nothing would happen to Ruidiaz or the victim, but Simon indicated that "he was still going to get [the victim] because [the victim] thought [Simon] was a little punk, a rookie or something." Ruidiaz had seen Simon with a .25 automatic, "chrome, pearl-handled" handgun.

On or about July 2, 1991, a witness for the Commonwealth overheard an argument involving Simon, Ruidiaz, and another person during which a "bad" drug deal involving the victim was mentioned. During the argument, Simon had his hand in the front of his pants. At some point, he pulled out a silver object which looked like a handgun. The defendant was present during the argument.

On July 15, 1991, shortly after 9 P.M., the witness who had overheard the discussion described above was walking toward Metcalf Court in the Jamaica Plain section of Boston. He saw the defendant sitting on a wooden bench under a tree. The witness described the defendant as "look[ing] to me like he was wired and looking around, looking, maybe just watching out, I don't know, being a watch out." When this witness proceeded into Metcalf Court, he saw the victim sitting on a fence with some friends.

Another Commonwealth witness testified that Simon observed the victim arrive at Metcalf Court. Simon then entered 17 Metcalf Court, where his girl friend had an apartment. There was testimony that Simon's girl friend kept a silver pearl-handled gun for him in her apartment. Shortly thereafter, Simon left 17 Metcalf Court and went around to the back of the building. Several witnesses heard the sound of a single gunshot fired behind the building.

Right after the single gunshot was heard, Simon and the defendant approached the victim, who was conversing with his friends, from behind. Simon put a handgun (described as "a silver gun with white handles") to the back of the victim's head, said "remember me," and shot the victim. After the victim fell to the ground, Simon shot the victim a second time in the temple. ³ The defendant then "stomped [the victim] in the head" and said "Die, motherfucker." The defendant and Simon ran away, and the defendant was overheard telling Simon, "Man, put the gun away, the police are coming." The defendant was not apprehended until October, 1991, in Lawrence.

The defendant presented three witnesses to raise an alibi issue. Each of these witnesses testified that the defendant was playing dominoes outside of Metcalf Court at the time of the shooting.

The defendant argues that, although the Commonwealth offered proof of his presence at the shooting, the evidence left to speculation whether he knew Simon was armed and planned to commit murder and whether he shared with Simon the necessary intent to commit a premeditated murder. There is little force in these contentions. "The test [for joint venture] is whether each defendant was (1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary." Commonwealth v. Longo, 402 Mass. 482, 486, 524 N.E.2d 67 (1988), quoting Commonwealth v. Bianco, 388 Mass. 358, 366, 446 N.E.2d 1041, S.C., 390 Mass. 254, 454 N.E.2d 901 (1983). The jury may infer the requisite mental state for a joint venture from the defendant's knowledge of the circumstances and his subsequent participation in the crime. Id. The jury, as they were entitled to, rejected the testimony of the defendant's witnesses that he was playing dominoes when the murder occurred and accepted the Commonwealth's theory that the defendant had participated in a planned execution. We think the sequence of events set forth above was sufficient to warrant findings by the jury that the defendant had knowingly and deliberately combined with Simon in a joint effort to seek out and to kill the victim to avenge the victim's theft of drugs from Simon's agent. See Commonwealth v. Champagne, 399 Mass. 80, 87, 503 N.E.2d 7 (1987). The evidence warranted the jury in concluding that once the defendant and Simon spotted the victim, Simon retrieved and tested his handgun. Several witnesses testified that the brothers came out from behind the building together, from which it could be inferred that the defendant was present when Simon tested the gun, knew of his intention, and went with Simon to provide a measure of protection from the friends of the victim who were present. The defendant was not surprised by the shooting; instead, he expressed satisfaction at the victim's death. The defendant's motion for a required finding of not guilty was correctly denied. ⁴ See Commonwealth v. Noble, 417 Mass. 341, 346-347, 629 N.E.2d 1328 (1994); Commonwealth v. Daughtry, 417 Mass. 136, 138-141, 627 N.E.2d 928 (1994).

2. Peremptory challenge. During the empanelment process, the prospective jurors were told the trial would last approximately one week, and they were asked whether the length of the trial might pose a hardship. In response to this question, one juror, who had an Hispanic name, had the following discussion with the judge:

THE JUROR: "I think I do have some difficulties with, like, English or understanding or speaking the English."

THE JUDGE: "I see. You're having trouble understanding what's going on here?"

THE JUROR: "Yes. I would like to serve but, like I said, sometimes I don't understand very much."

THE JUDGE: "Have you been able to understand everything that's been said so far?"

THE JUROR: "Well, some of those words, for example, my uncles was killed in my country but I wasn't there. I was here. [ ⁵]'

THE JUDGE: "Do you think that's something that might influence your decision?"

THE JUROR: "Not necessarily, but I like to serve. If I don't understand very well everything, whatever, I'm going to choose--"

THE JUDGE: "Well, if you find you are having trouble, if you are chosen to sit, if you find you are having trouble, let me know that through the court officer, but you stay with us. We'll try it."

Subsequently, the prosecutor exercised a peremptory challenge to remove the juror, and, after objection by the defendant's trial counsel, explained the challenge as follows: "Judge, I will ... give you the reason for it. It's just the reason stated by the same juror when you were asking the initial questions where he stated that he had problems understanding English, that he did have problems understanding English. I noticed that he did have problems understanding and I would ask that he be excused from the jury based on that." The judge accepted the prosecutor's reason, and his challenge over objection by the defendant's trial counsel. The defendant argues that the Commonwealth's use of a peremptory challenge to remove the sole Hispanic person from the jury violated his Federal and State constitutional rights, which prohibit the use of peremptory challenges to exclude prospective jurors solely because of their membership in a discrete group. See Commonwealth v. Hamilton, 411 Mass. 313, 316, 582 N.E.2d 929 (1991). We disagree.

The judge followed the recommended procedure for assessing the validity of a questioned peremptory challenge. See Commonwealth v. Burnett, 418 Mass. 769, 770-771, 642 N.E.2d 294 (1994). It was for the judge to decide whether the reason for the challenge offered by the prosecutor was bona fide or a pretext, id. at 771, 642 N.E.2d 294, and the judge's determination is entitled to substantial deference on appeal. Id.

The judge properly concluded that the prosecutor had specifically articulated a legitimate reason for exercising the challenge. The prospective juror's discussion with the judge indicated that the juror had language difficulties that could prevent him from comprehending, and intelligently resolving, the issues to be raised at trial. Both sides were...