Commonwealth v. Acevedo
| Docket Number | SJC-13131 |
| Decision Date | 12 July 2023 |
| Parties | COMMONWEALTH v. ANGEL ACEVEDO |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Heard March 10, 2023.
Indictments found and returned in the Superior Court Department on April 5, 2016. The cases were tried before Renee P Dupuis, J.
Ira Alkalay for the defendant.
Mary Lee, Assistant District Attorney, for the Commonwealth.
Present: Budd, C.J., Gaziano, Lowy, Cypher, & Wendlandt JJ.
On December 31, 2016, Aaron Gant, Jr. (victim), was fatally shot in the back of his head while sitting in a sport utility vehicle (SUV) with three friends. The Commonwealth alleged that the defendant, Angel Acevedo, and the codefendant, Aaron Bookman, committed the murder as part of a long-standing feud between gangs associated with the West End and South End sections of New Bedford. In a joint trial, a Superior Court jury convicted the defendant and the codefendant of deliberately premeditated murder in the first degree and unlawful possession of a firearm. See Commonwealth v. Bookman, 492 Mass. ___ (2023).
The defendant raises two issues in this direct appeal. First, he contends that the judge erred in excluding evidence that the occupants of the SUV were selling drugs on the night of the shooting and that knives were found inside and next to the vehicle. He argues that this evidence supported a third-party culprit defense because the shooting victims were engaged in risky behavior and therefore may have been attacked by an unnamed rival drug dealer. It also was admissible, he argues, to show that police failed to investigate a potential lead. Second, he contends that the judge abused her discretion by allowing evidence that the codefendant possessed a handgun eight months prior to the shooting. Finally, the defendant asks this court to exercise its extraordinary authority pursuant to G. L. c. 278, § 33E, to grant him a new trial or to reduce the murder in the first degree conviction to a lesser degree of guilt. Having carefully examined the record and considered the defendant's arguments, we conclude that there is no error and find no reason to disturb the verdicts.
We summarize the facts that the jury could have found, reserving some details for later discussion of specific issues.
On December 31, 2015, at 7:18 P.M., the victim was shot to death on Pleasant Street in the South End section of New Bedford. He was seated in the rear driver's side seat of a maroon Mercedes SUV with three friends: Aaron Watkins (driver), Louis Class (front seat passenger), and Desmond Roderick (rear seat passenger).[1] The occupants of the SUV had grown up in the South End and were members of a gang associated with that section of the city. At the time of the shooting, the South End group actively was engaged in hostilities with individuals affiliated with the West End section of New Bedford. This longstanding rivalry had resulted in instances of gang-on-gang violence and corresponding retribution.
The defendant and his "cousin," the codefendant, were affiliated with the West End group. This was evidenced by the defendant's signature on a jail "security threat group affiliation form" acknowledging his gang membership since "[c]hildhood." The codefendant signed the same type of threat assessment form acknowledging affiliation with the West End Potter Street neighborhood. The codefendant also had a Potter Street "P" tattooed on his face.
The Commonwealth introduced evidence of the defendant's motive to harm at least some of the occupants of the SUV.[2] He had fought Watkins in high school, and they did not get along as adults. On May 31, 2015, prior to the fatal shooting, the defendant had been shot in the leg while driving through the North End section of New Bedford. He refused to cooperate with law enforcement officers investigating the incident. Months later, on October 21, 2015, the defendant and his then girlfriend, Lorana Rivera, were ambushed in a drive-by shooting. He was shot in the face and had his jaw wired shut until late December 2015. The defendant told medical personnel that he knew who shot him but would not talk to police. Rivera, who was shot in the leg, identified South End group associate Rayshawn Lewis as the shooter. Rivera testified that she was unable to recall discussing the shooter's identity with the defendant.
The codefendant also had a history of problems with individuals affiliated with the South End gang. On June 27, 2014, he and his then girlfriend, Alicia Ryder, were inside her home when it was "shot up." In or about the late spring of 2015, the victim and the victim's friends followed and watched the codefendant and Ryder at a restaurant and, once or twice, drove slowly by her house in an SUV.
Approximately one week before the fatal shooting, in late December 2015, the defendant asked his sister's boyfriend, Mason Soto, to rent a car for him. Soto resided in Saco, Maine, having moved from New Bedford. On December 24, 2015, Soto rented a 2016 white Ford Fusion from a car rental office in Westbrook, Maine, located near the Portland Airport. The new model car was equipped with a sunroof and black wheel rims and had a Connecticut license plate. Soto, the only authorized driver on the rental agreement, paid the rental fee in cash supplied by the defendant. Later that evening, the defendant drove the Fusion from Saco to New Bedford, a 150-mile trip.
On December 31, 2015, the day of the shooting, the defendant and the codefendant telephoned or sent text messages to each other repeatedly throughout the day. There was a gap in outgoing telephone calls and text messages for both the defendant and the codefendant around the time of the 7:18 P.M. shooting. At 6:47 P.M., the defendant telephoned Rivera, and at 7:19 P.M., he telephoned an individual named Tyrone Mendes. According to cell site location information records or cell tower records, the 7:19 P.M. call registered to a cell tower about one-half mile away from the crime scene.
That afternoon, the defendant and Rivera had gone shopping at a mall in Taunton. A mall parking lot security camera recorded the defendant behind the steering wheel of a white Ford Fusion at around 2 P.M. Thereafter, the defendant drove the same vehicle to a New Bedford barbershop at 4:30 P.M., and left at 5:21 P.M.
The Commonwealth introduced additional security camera footage from numerous New Bedford locations depicting, with varying degrees of clarity, a white sedan resembling a Ford Fusion traveling throughout New Bedford in the early evening hours. At 6:49 P.M., the defendant, wearing a red sweatshirt, and the codefendant, wearing a black sweatshirt, arrived at a liquor store on Nauset Street in New Bedford's North End. They left the store minutes later, with the defendant driving and the codefendant in the passenger's seat.
At 6:56 P.M., another security camera captured images of the same or a similar white sedan pulling into the parking lot of a nearby liquor store on Mount Pleasant Street. The defendant got out of the driver's side, and the codefendant got out of the passenger's side. The defendant and the codefendant ran into two friends in the liquor store, and they exchanged greetings and small talk. At 7 P.M., the defendant and the codefendant left the store. Again, the defendant entered the driver's side of the white sedan, and the codefendant its passenger's side. The defendant drove out of the parking lot headed toward the South End section of the city.
A security camera mounted to a residence on Grinnell Street depicted a blurry image of an SUV, at around 7:15 P.M., turn onto Pleasant Street, near Louis Class's South End residence. A white sedan followed closely behind the SUV. A few minutes later, at 7:18 P.M., the New Bedford police received ShotSpotter acoustic alerts of multiple gunshots in the Pleasant Street area.[3] Neighbors reported hearing gunfire, but no one had witnessed the shooting.
Police responded within minutes of the alert and found evidence of a shooting near the intersection of Pleasant and Grinnell Streets. A gray sedan parked on Pleasant Street had a bullet hole near the trunk on the driver's side. There were no ejected shell casings found at the crime scene, suggesting that the rounds had been fired from a revolver.
At 7:20 P.M., the SUV arrived at a local hospital's emergency department. Watkins, Class, and Roderick got out of the SUV, seeking medical attention for their friend. The victim was unconscious and lifeless. He had been shot in the right side of the back of his head and died almost immediately from the gunshot wound. The medical examiner recovered a projectile from his body.
Police, dispatched to the hospital for a reported shooting, arrived at 7:24 P.M. The victim's friends were upset and did not cooperate with law enforcement officers. Other individuals affiliated with the South End group arrived at the hospital. One of them, Larry Pina, Jr., asked Watkins, "[W]ho was it, was it?" Watkins nodded his head, with his "chin [going] up and . . . down to [his] chest." Another, Ceasare Rodderick, appeared enraged and with a loud voice stated, "[W]hat are we waiting for, let's go."
At around 8:30 P.M., the defendant met Rivera in the parking lot of an elementary school in New Bedford where he had parked his vehicle (by inference, the Ford Fusion). At 8:47 P.M., Rivera, who was driving her mother's car, drove with the defendant to a supermarket to buy juice, leaving the Fusion behind. From the supermarket, they went to Rivera's mother's home for a New Year's Eve celebration, staying until the early morning hours. Driving in Rivera's mother's car, they then retrieved the Fusion from the school parking lot returned Rivera's mother's car to her home, and drove the...
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