Commonwealth v. Andrade

• Decision Date: 05 October 2021
• Docket Number: SJC-11529
• Parties: COMMONWEALTH v. Manuel ANDRADE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

488 Mass. 522

174 N.E.3d 281

COMMONWEALTH

v.Manuel ANDRADE.

SJC-11529

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 7, 2021.

Decided October 5, 2021.

Rosemary Curran Scapicchio, Boston, for the defendant.

Kathleen Celio, Assistant District Attorney (Edmond J. Zabin & Erin D. Knight, Assistant District Attorneys, also present), for the Commonwealth.

Present: Budd, C.J., Cypher, Kafker, Wendlandt, & Georges, JJ.

WENDLANDT, J.

In April 2009, the defendant was convicted of murder in the first degree in the March 2007 shooting death of twenty-two year old Chiara Levin, a bystander who was caught in the crossfire of a shootout between the defendant and Casimiro Barros. The defendant also was convicted of assault and battery by means of a dangerous weapon, assault with intent to kill, assault by means of a dangerous weapon, and unlawful possession of a firearm.

After entering his appeal, and before his appellate brief was filed, in July 2018, the defendant filed a motion for a new trial in this court. The appeal was stayed, and the motion was remanded to the Superior Court for decision. A Superior Court judge, who was not the trial judge, inexplicably declined to rule on the motion, other than to deny the defendant's motion for an evidentiary hearing on four of his claims. The matter is now before us on the defendant's direct appeal, consolidated with the claims from his motion for a new trial. After having carefully reviewed the numerous claims in both the appellate brief and the motion for a new trial, we discern no error and no reason to exercise our extraordinary authority under G. L. c. 278, § 33E, to order a new trial or to reduce the verdict of murder in the first degree to a lesser degree of guilt. Accordingly, we affirm the convictions.

1. Background. a. Facts. We recite the facts in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), reserving some details for later discussion, see Commonwealth v. Rakes, 478 Mass. 22, 24, 82 N.E.3d 403 (2017).

At around 1:30 A.M. on March 24, 2007, after Levin and two friends left a club in Boston, they spoke with a group of men standing outside the club, including the defendant, his cousin Tony Andrade,¹ and Samuel Ortiz. The men, whom Levin and her friends had not met previously, invited them to a party in a private home; Levin's group accepted, and Tony drove them to the party.

There were about twenty-five to thirty people at the party. One guest, Jessica Nunez, saw a man, inferentially the defendant, wearing a black fitted baseball cap, a black "hoodie," and glasses approach Barros and Jason Barbosa, and say, "Y'all Roxbury n****** are nothing but bitches," and also refer to Barbosa as a "bitch ass n*****."²

About an hour after Levin and her two friends first arrived, Tony offered to take the group home. Tony, Levin, her two friends, Ortiz, and the defendant went outside, where Ortiz, and Levin and her group, got into Tony's Ford Escalade. Before the defendant reached the vehicle, he said something to Tony and then turned and walked back toward the house. Tony got into the driver's seat.

Nunez, who was still inside, heard arguing. She saw the defendant throw a plate of food at Barbosa and then pull out a gun. Nunez and other guests reported that they heard gunshots, and that guests ran from the house after the shots. A man ran into the kitchen yelling that "they were shooting" and everyone "needed to get out or we're going to die"; he added that "Spank was buggin’,"³ and "They're shooting in there." Barbosa was shot in the shoulder and fled through the front door. Nunez saw the defendant point a gun at Barros and then run through the front door, with Barros following.

The defendant walked quickly toward Tony's Escalade, looking behind him toward the house and smirking. Ortiz heard someone at the front of the house say, "Pop him," and screamed at the defendant to "watch his back."

Barros, who was being restrained, broke free and moved toward the defendant. By that point, the defendant was near Tony's vehicle.⁴ He got out his gun, and Barros did so as well. Both men opened fire. A bullet from the defendant's gun struck a nearby vehicle. Several of the bullets from Barros's gun hit Tony's vehicle; one of them traveled through the front passenger's side door as the defendant tried to flee, and struck him in the buttocks. Another bullet from Barros's gun went through the rear passenger's side window, which shattered, and then hit Levin in the head.

As Levin's friends yelled for Tony to drive Levin to the hospital, he sped away, with the defendant also in the vehicle. After about a minute, the defendant said that he had to get out. Tony stopped the vehicle, and the defendant and Ortiz left. Tony drove to a Boston hospital. On arrival, Levin was unconscious and unresponsive. After approximately two hours of effort, doctors determined that she was "brain dead" and there was nothing further they could do to assist her, so they terminated their efforts and she died.

Nunez drove Barbosa to the same hospital, where he was treated for a collapsed lung. One of the guests who had been at the party when the shootings took place called the defendant. He told her, "You didn't see anything, right?" and said that she should tell the other people with whom she had been there that they had not seen anything either.

b. Prior proceedings. The defendant was indicted on charges of murder in the first degree; aggravated assault and battery by means of a dangerous weapon; two counts of armed assault with intent to murder; assault by means of a dangerous weapon; two counts of home invasion; and carrying a firearm without a license.⁵

The defendant was tried in March and April of 2009.⁶ After two days of deliberation, the jury found him guilty of murder in the first degree on a theory of deliberate premeditation; aggravated assault and battery by means of a dangerous weapon; assault with intent to kill, as a lesser included offense of assault with intent to murder; assault by means of a dangerous weapon; and carrying a firearm without a license. He was acquitted of assault with intent to murder with respect to Barbosa.⁷

On July 10, 2018, after he had entered his appeal in this court, the defendant filed a motion for a new trial in this court, and we ordered it remanded for disposition in the Superior Court. On October 18, 2018, a Superior Court judge who was not the trial judge issued a written statement that she declined to act on the motion, as this court would be reviewing the record pursuant to G. L. c. 278, § 33E. At the same time, she considered, and rejected, the defendant's request for an evidentiary hearing on four issues. The defendant timely appealed from these rulings, and we consolidated that appeal with the defendant's direct appeal.

2. Discussion. The defendant raises thirteen claims in his direct appeal, and twenty-one distinct claims in his motion for a new trial, a number of which also are made virtually identically in his direct appeal. We first address the claims in the direct appeal, and then we turn to those arguments in the motion that were not included in the appellate brief.

a. Asserted inconsistencies. i. Inconsistency of verdicts. The defendant maintains that because he was not convicted of assault with intent to murder Barros, but rather of the lesser included offense of assault with intent to kill, due to mitigating factors, the verdict of murder in the first degree is inconsistent, as both charges stem from the same act of shooting toward Barros. In essence, the defendant argues that if mitigating factors applied to his conduct toward Barros, those factors also must apply with respect to his responsibility for Levin's death.

Verdicts are factually inconsistent when, "considered together, [they] suggest inconsistent interpretations of the evidence presented at trial." Commonwealth v. Resende, 476 Mass. 141, 147, 65 N.E.3d 1148 (2017), quoting Commonwealth v. Gonzalez, 452 Mass. 142, 151 n.8, 892 N.E.2d 255 (2008). Legally inconsistent verdicts are "verdicts of guilt involving mutually exclusive crimes, where it is impossible for the Commonwealth to prove the elements of both offenses with respect to a particular defendant." Resende, supra. Here, the jury's differing factual conclusions with respect to different victims do not require a new trial. See id., quoting Commonwealth v. Medeiros, 456 Mass. 52, 57-58, 921 N.E.2d 98 (2010) ("While legally inconsistent verdicts may not stand, factually inconsistent verdicts may"). The jury evaluate each indictment independently. See Commonwealth v. Fluellen, 456 Mass. 517, 523, 924 N.E.2d 713 (2010). It is "not necessary that the verdicts be consistent on the separate indictments." Commonwealth v. Scott, 355 Mass. 471, 475, 245 N.E.2d 415 (1969). Depending on their view of the evidence, the jury properly could have convicted the defendant of murder in the first degree for Levin's death, and acquitted him of assault with intent to murder Barros. See Commonwealth v. Walsh, 255 Mass. 317, 320, 151 N.E. 300 (1926).

To find the defendant guilty of murder in the first degree on a theory of deliberate premeditation, the jury necessarily found that he purposefully caused Levin's death after reflection. See Commonwealth v. Colas, 486 Mass. 831, 836, 162 N.E.3d 1192 (2021). In situations involving a shootout, "[t]he Commonwealth need not prove an intent to kill the victim[,] because intent could be transferred from the intent to kill [the opponent]." Commonwealth v. Santiago, 425 Mass. 491, 502, 681 N.E.2d 1205 (1997), S.C., 427 Mass. 298, 693 N.E.2d 127 and 428 Mass. 39, 697 N.E.2d 979, cert. denied, 525 U.S. 1003, 119 S.Ct. 514, 142 L.Ed.2d 426 (1998). The Commonwealth must prove beyond a reasonable doubt, however, that the defendant caused the victim's death. See Colas, supra at 842, 162 N.E.3d 1192, and cases cited ("With respect to causation, the Commonwealth may...