Commonwealth v. Francis

• Decision Date: 05 May 2000
• Citation: Commonwealth v. Francis, 432 Mass. 353, 734 N.E.2d 315 (Mass. 2000)
• Parties: COMMONWEALTH v. ROBERT FRANCIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

432 Mass. 353

734 NE 2d 315

COMMONWEALTH v.ROBERT FRANCIS.

Supreme Judicial Court of Massachusetts, Hampden.

May 5, 2000.

August 22, 2000.

Present: MARSHALL, C.J., ABRAMS, GREANEY, SPINA, & COWIN, JJ.

Alan J. Black for the defendant.

Jane Davidson Montori,Assistant District Attorney, for the Commonwealth.

MARSHALL, C.J.

The defendant was convicted by a jury, as an accessory before the fact, of murder in the first degree by reason of deliberate premeditation.¹He was also convicted, as an accessory before the fact, of three indictments charging armed assault with intent to murder and assault and battery by means of a dangerous weapon.G. L. c. 274, § 2.On appeal, he claims numerous errors that would warrant reversal of his convictions and requests relief pursuant to G. L. c. 278, § 33E.While his appeal was pending, the defendant filed a motion for a new trial based on newly discovered evidence that was referred to the Superior Court and denied without a hearing.His appeal from that order has been consolidated with his direct appeal from his convictions.We affirm the defendant's convictions and the order denying his motion for a new trial.We conclude that relief pursuant to G. L. c. 278, § 33E, is not warranted.

1.Facts.On the evening of February 28, 1995, Carlos Falcon and three other men were shot after leaving a Kentucky Fried Chicken (KFC) restaurant on State Street in Springfield.Falcon died as a result of being shot once in the back of the head.The other three men survived.

Earlier that evening, members of two Springfield gangs known as Los Solidos and the Original Family Organization (OFO), a subordinate group whose members aspired to membership in Los Solidos, gathered in the apartment of Sharleen Alvarez located on the fourth floor at 659State Street.Los Solidos members present were the defendant, Luis Berrios, Victor Figueroa, Johnny Sanchez, Luis Concepcion, and David Jiles.OFO members present were Daniel Rodriguez("president" of OFO and the Commonwealth's cooperating witness in this case), Michael Borden, Jason Jiles, and Sharleen Alvarez.

The Commonwealth presented evidence that warranted a finding that the defendant was the "chief enforcer" of Los Solidos, responsible for taking care of the gang's guns, handling threats to the gang, and, during "wartime," exercising control over the gang in cooperation with its "warlord."There was testimony that, on the date of the shootings, Los Solidos were in a state of "war" with a rival gang, the Latin Kings.

Rodriguez testified that, at some point that evening, Concepcion and David Jiles entered the apartment and told the group that members of the Latin Kings were at the KFC "throwing signs," which meant that they were disrespecting Los Solidos by displaying their hand signal.When some of those present urged retaliation, the defendant took charge, stating, "Everybody just calm down.We going [sic] take care of this."He summoned Rodriguez, Borden, Jason Jiles, and Berrios into the bathroom, where he said, "If you can get those Kings, we got to do what we got to do."Jason Jiles responded that he would take care of it.The defendant then directed Rodriguez and Berrios to leave while he remained in the bathroom with Borden and Jiles.

Returning from the bathroom, the defendant told Rodriguez, "Don't worry about it.I'm gon' [sic] take care of it.Let me do my job."Jason Jiles, in the defendant's presence, picked up a.22 caliber semiautomatic handgun and said, "I'm going to do this."The defendant then instructed Jason Jiles to "[g]et a hoody," referring to a hooded sweatshirt, which Jiles put on before leaving the apartment.Borden also left the apartment at this time, and when Rodriguez asked where he had gone, the defendant told him not to worry about it.Borden often carried a.38 caliber revolver.Rodriguez testified that, shortly thereafter, Jason Jiles returned to the apartment and said, "Those ain't Kings," to which the defendant responded, "They Kings.They Kings.Go do what you got to do and take care of it."Jason Jiles again left the apartment.

There was testimony by the Commonwealth's witnesses about the events outside the apartment.Just prior to the shooting, Carlos Falcon and three companions had left the KFC.The three men were seated inside Falcon's automobile, and Falcon was standing at the rear of the vehicle.A man matching the description of Borden approached and, after a brief verbal exchange, shot the three men in the vehicle with a .38 caliber revolver, wounding them.Jason Jiles, approaching from the rear, shot Falcon once in the back of the head with a .22 caliber handgun, killing him.²

Jason Jiles and Borden then returned to the State Street apartment, where they were congratulated by the others.Los Solidos "warlord,"Johnny Sanchez, complained loudly to the defendant that the shooting was a mistake because it could "bring the heat down on us."The defendant responded, "They'll never figure this one out.Everybody just keep quiet."Portions of this exchange were overheard by Springfield police officers outside the apartment, who had responded to a report of the shooting.The police were admitted to the apartment by Sharleen Alvarez.Only Rodriguez was arrested at the time, on an outstanding warrant.The defendant was arrested approximately two months later when Rodriguez implicated him in the shootings in a statement to police.

2.The prosecutor's opening statement.In his opening statement, the prosecutor informed the jury that Rodriguez, a cooperating witness for the Commonwealth, had a criminal history, but had made no "deals" with the Commonwealth in return for his testimony, and that he was no longer associated with gangs and now lived a "straight and narrow life."The defendant moved for a mistrial, which was denied.He argues that this was error because the prosecutor had impermissibly vouched for Rodriguez's credibility.

A prosecutor may not express a personal opinion as to the credibility of a witness or assert personal knowledge of the facts in issue.SeeCommonwealth v. Trigones,397 Mass. 633, 642(1986), and cases cited.See alsoMass.R. Prof. C. 3.8(h), (i), as appearing in 428 Mass. 1305(1999).He may in general state in his opening anything that he"expects to be able to prove by evidence."Commonwealth v. Fazio,375 Mass. 451, 454(1978), and cases cited.The judge concluded, and we agree, that the prosecutor did not vouch for Rodriguez but merely "predict[ed] what the witness would say."This prediction was borne out at trial, as Rodriguez testified that the Commonwealth had made no promises to him to induce him to testify against the defendant, and that he had ceased his gang involvement and held steady employment at the time of trial.The judge properly exercised his discretion in denying the defendant's motion for a mistrial.SeeCommonwealth v. Amirault,404 Mass. 221, 232(1989).

3.Witness confidentiality.Prior to Rodriguez's testimony, the Commonwealth moved, pursuant to G. L. c. 258B, §§ 2, 3 (d), (h), to prevent defense counsel from cross-examining him about his address, telephone number, and place of employment, because he feared retaliation by gang members against himself or his family.The judge ruled that defense counsel could ask Rodriguez whether he was engaged in an occupation other than selling drugs, but not his specific employment or his employment address, and whether he now lived in western Massachusetts or in Connecticut, but not his city of residence or residential address.He also prohibited defense counsel from investigating these matters.The defendant argues that the restrictions infringed his right to confrontation guaranteed by the Sixth and Fourteenth Amendments to the United States Constitutionandart. 12 of the Massachusetts Declaration of Rights.SeeSmith v. Illinois,390 U.S. 129, 131(1968);Alford v. United States,282 U.S. 687, 692-693(1931).We disagree.

In Commonwealth v. McGrath,364 Mass. 243, 251(1973), citingSmith v. Illinois, supra at 133-134(White, J., concurring), we held that a defendant's right to cross-examine a witness about his current address and place of employment may be restricted when the judge determines that a threat to the witness's safety from disclosure of this information outweighs the defendant's need for it.SeeCommonwealth v. Johnson,365 Mass. 534, 545(1974).Here, the judge properly concluded that the risk to Rodriguez's safety was "inherent in the situation," thereby relieving the Commonwealth of its burden to demonstrate an actual threat to the witness.³Commonwealth v. Mc-Grath, supra, citingUnited States v. Daddano,432 F.2d 1119, 1128(7th Cir.1970), cert. denied, 402 U.S. 905(1971).The judge then ascertained from defense counselthe defendant's need for information about the witness's current address and place of business, carefully weighed the defendant's interest in disclosure against the witness's interest in privacy, and concluded that the latter was sufficiently compelling to warrant the limitations described above.In all other respects, the defendant had "an open and meaningful opportunity to cross-examine" the witness.McGrath v. Vinzant,528 F.2d 681, 685(1st Cir.), cert. dismissed, 426 U.S. 902(1976).By permitting general questions as to the witness's home State and employment,⁴ the judge sought, and found, a compromise that allowed sufficient disclosure while minimizing any danger to the witness.SeeCommonwealth v. Johnson, supra at 546.

4.Cross-examination of the defendant.(a)The defendant testified at trial, and now claims that it was error for the judge to permit the prosecutor to question him about an incident that occurred approximately five weeks after the shootings: the defendant had been arrested and indicted, but subsequently acquitted by a jury, on the charge of possessing a firearm without a firearms identification card.G. L. c. 269, § 10 (h).Defense counsel...