Commonwealth v. Akara, SJC–10229.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: DUFFLY
• Citation: 465 Mass. 245,988 N.E.2d 430
• Parties: COMMONWEALTH v. Chimezie AKARA (and seventeen companion cases ).
• Docket Number: SJC–10229.
• Decision Date: 21 May 2013

465 Mass. 245
988 N.E.2d 430

COMMONWEALTH
v.
Chimezie AKARA (and seventeen companion cases ¹).

SJC–10229.

Supreme Judicial Court of Massachusetts,
Suffolk.

Argued Jan. 11, 2013.
Decided May 21, 2013.

[988 N.E.2d 434]

Brownlow M. Speer, Committee for Public Counsel Services, for Andre Green.

Kevin S. Nixon for Chimezie Akara.

Kathleen Celio, Assistant District Attorney (Sarah H. Montgomery, Assistant District Attorney, with her) for the Commonwealth.

Present: SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.

DUFFLY, J.

[465 Mass. 246]Shortly before 8 p.m. on the evening of February 5, 2003, Philip Gadsden, who was traveling on a Massachusetts Bay Transportation Authority (MBTA) subway train, was threatened with a gun by one of two passengers standing together in the aisle. While the train was pulling into the Massachusetts Avenue MBTA station, Gadsden moved down the car away from the man pointing the gun and yelled to other passengers that there was a gun on the train. As the passengers rushed out of the train, two shots were fired in Gadsden's direction. One bullet lodged in a guitar case that was being carried over the shoulder of a fleeing passenger. The second bullet pierced the abdomen of a female passenger, Hawa Barry, who was thirty-six weeks pregnant. The bullet passed through her unborn child, who was born alive before succumbing to his injuries.

The defendants, Chimezie Akara and Andre Green, were indicted for murder in the first degree and other related assault and firearms offenses several months after the shootings, based on videotape surveillance images from cameras at two MBTA subway stations, interviews with Gadsden and more than a dozen passengers on the train, and statements by witnesses who [465 Mass. 247]spent time with the defendants both before and after the shootings. The Commonwealth's theory at trial was that the shootings had been committed as part of a joint venture in which one of the defendants had fired the gun intending to shoot Gadsden, and the other had acted as a joint venturer in the commission of the crime.

Arguing that the evidence of joint venture was insufficient, the defendants moved for required findings of not guilty on all of the indictments. These motions were denied.² A Superior Court jury convicted each defendant of murder in the first degree on a theory of extreme atrocity or cruelty. ³ Each defendant also was convicted of assault by means of a dangerous weapon, three counts of armed assault with intent to murder, two counts of assault and battery by means of a dangerous weapon, possession of a firearm without a

[988 N.E.2d 435]

license, and possession of ammunition without a firearm identification card.

On appeal, both defendants argue that there was insufficient evidence of joint venture; their trials should have been severed; the instructions on joint venture were erroneous; the prosecutor's closing argument was prejudicial in several respects; and evidence of the defendants' gang affiliation should not have been admitted. Akara argues also that the judge's instruction on murder in the first degree on a theory of extreme atrocity or cruelty was erroneous; the judge improperly prevented the jury from considering Green's motive to lie; and Green's closing argument was improper and prejudiced Akara. Green argues that the admission of certain statements by Akara violated the rule set forth in Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). We affirm the defendants' convictions and conclude that there is no basis on which to grant extraordinary relief pursuant to G.L. c. 278, § 33E.

1. Facts. We recite the facts the jury could have found in the light most favorable to the Commonwealth, see [465 Mass. 248]Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979), reserving certain details for our discussion of specific issues.

On February 5, 2003, Akara, Green, and their friends Sean Brown and Burrell Ramsey–White spent time together at the home of another friend, Kalif Christopher, in the Mattapan section of Boston. From there, Akara, Green, Brown and Ramsey–White traveled to the Forest Hills MBTA station, where they congregated near the doughnut shop on the upper floor. Akara was the only member of the group wearing a baseball cap; a logo on the cap showed the letters “TC” interlocked.⁴ He also wore a dark jacket with a hood. Green, the shorter of the two defendants, was wearing a dark sweatshirt with a pointed hood. While waiting for the train, one of the four wrote “Tent City” and “TC” in green marker on an MBTA sign.

Sometime between 7:40 p.m. and 7:50 p.m., the four boarded an Orange Line train car numbered 1205 at the rearmost door, identified at trial as door number three. They stood in two groups, with Green and Akara standing together near the door on the platform side of the car and Brown and Ramsey–White standing together across the aisle. Gadsden boarded the same train and sat near the rear door, close to where Akara and Green were standing.

None of the passengers on the train saw the events leading up to the shooting, or the shooting itself, in its entirety, but much of the passengers' testimony was overlapping. A college student, who was sitting in the middle of the car with two friends, saw a group of young African–American men board the train. One of the men (Gadsden), who was somewhat older than the others, sat across from the student, while the four other men remained standing in groups of two. While waiting for the train to leave the station, the student saw the seated passenger, with his elbows on his knees, “throwing glances” at the individuals on both sides of him, and “nodding” in a “yes” motion to the two men standing near him to his right (Akara and Green). None of the five men spoke, and the student thought the situation seemed [465 Mass. 249]tense. The taller of the two men standing to Gadsden's right (Akara) had his hand in his pocket. The student

[988 N.E.2d 436]

thought that the man with his hand in his pocket might have a weapon. She and her friends left car 1205 and boarded a different car on the same train.

A few stops later, as the train left the Ruggles station for the approximately one-minute ride to the Massachusetts Avenue station, another passenger heard a “very loud, tense verbal exchange” between the seated man (Gadsden) and the two men standing near him to Gadsden's right (Akara and Green). At that time, Gadsden saw that one of the defendants was holding a gun at his side.⁵ Both defendants were looking in Gadsden's direction. Another passenger saw one of two young men standing together near the rear door raise his arm and point it in Gadsden's direction; both were wearing hooded sweatshirts, and the one who was pointing towards Gadsden (Akara) was wearing a baseball cap. The passenger was unable to see what the man who was pointing was holding in his hand, because his view was blocked.

Gadsden got up from his seat and started walking to the front of the train, waving his arms and yelling, “there's a gun on the train” and “they have a gun,” while pointing to the defendants. He exhorted passengers to get down, to “stay back,” to “move to the other side,” and to “get off the train.”

When the doors opened at the Massachusetts Avenue subway station, passengers who had moved to stand near the first and second doors began running from the train. The defendants also got off the train. A passenger still inside car 1205, as well as [465 Mass. 250]passengers on the platform, heard pops or gunshots coming from the rear of the car, near door number three.

A passenger in a car behind car 1205 heard several loud bangs coming from the front of the train, followed by shouts and screams from the same direction. Ten seconds later, he saw a “pack” of four or five individuals running furiously, coming from the direction of the commotion and heading towards the exit at the rear of the station. They ran close together, in a group; all were wearing dark baggy clothes and at least one had on a gray hooded sweatshirt.⁶ The passenger heard the men laughing or chuckling, in a congratulatory manner, as though one had “scor[ed] a goal or made a basket.” Another passenger saw a group of four young males running towards the exit. He observed the tallest member of the group (Akara) holding his waist, as if gripping something near his belt. A security camera on a nearby parking garage captured images of four men running from the station and through a parking lot.

Two shell casings were found on the platform. One bullet ricocheted off the

[988 N.E.2d 437]

outside of car 1205, between doors two and three, and pierced a guitar case carried by music student Aldofredo Pulido, who was running from the train with the guitar case over his right shoulder. It was not until Pulido reached his classroom that he opened the guitar case and discovered his damaged guitar and the bullet inside the case.

A passenger heard a scream, turned, and saw a woman (Barry), holding the left side of her abdomen. Blood was flowing between Barry's fingers, and there was a lot of blood on the floor. Barry, who was then thirty-six weeks pregnant, was a recent immigrant to the United States and was unable to speak or understand English. She had seen Gadsden walking up and down the aisle of the train waving his arms, but could not understand what he was saying. When the train came to a stop and passengers were getting off, a man tried to lead her through the middle door. Barry had taken just one step through the door when she heard a “pop pop”; she felt a pain in her stomach, saw that her stomach was covered in blood, stepped back into the train, and sat down. Gadsden, who had preceded Barry out [465 Mass. 251]the middle door, got back onto the train when he heard the second shot. He and others assisted Barry to a bench on the platform; Gadsden then got on the next train.

Barry was rushed to a hospital, where her son was born alive by cesarean...