Commonwealth v. Gamboa
| Citation | 190 N.E.3d 469 |
| Decision Date | 20 July 2022 |
| Docket Number | SJC-13063 |
| Parties | COMMONWEALTH v. Darius GAMBOA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jennifer H. O'Brien, Billerica, for the defendant.
Julianne Campbell, Assistant District Attorney, for the Commonwealth.
Present: Budd, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.
Following a jury trial, the defendant, Darius Gamboa, was convicted of murder in the first degree on a theory of deliberate premeditation.1 He appeals, arguing that (1) the judge improperly denied his motion for a mistrial, (2) the judge improperly permitted the Commonwealth to introduce testimony relating to polygraph evidence, (3) the judge improperly denied the defendant's request for a manslaughter instruction, and (4) this court should exercise its powers under G. L. c. 278, § 33E, to grant the defendant relief. We affirm.
Background. We summarize the evidence presented at trial, reserving certain details for later discussion.
On the evening of July 6, 2012, Julio Barbosa (victim) was killed by a single gunshot outside a convenience store in New Bedford. Shortly before he was killed, the defendant had driven to the convenience store with his father, Ryan Gamboa; after the two parked, they encountered the defendant's cousin Tyrell Gamboa nearby on the street, and Tyrell waited by the car while the defendant and Ryan walked toward the store.2 ,3
Manuel Pina, a friend of Ryan's, "bumped into" Ryan on the way to the store, went toward the store with Ryan, and then stayed outside while Ryan entered the store alone. At around that same time, Pina saw the victim in front of the store. The victim entered the store soon thereafter. Pina also described passing another man standing by the convenience store, whom Pina described as "tall" with "brown skin, curly hair," and "a wider nose."4
Meanwhile, inside the store, a store clerk witnessed Ryan and the victim get into an "aggressive" verbal argument. Moments later, the clerk saw the victim punch Ryan, and Ryan attempted to punch back. The clerk watched as the two men ran out of the store, with Ryan following the victim. What happened next was out of the clerk's vision, but he heard a loud crack.
Pina, who was still outside the store, saw the victim and Ryan run out of the store at nearly the same time. The two men ran past Pina, and Pina saw the victim fall and get back up. While watching the victim, Pina heard "fireworks or something" or a "pop" come from "behind the store" or "from like right around the corner." Pina saw the victim "grab[ ] himself" and heard him say that he had been shot as he fell back to the ground.
Another patron of the convenience store was sitting right outside when he saw two male figures near the store's entrance. This witness saw Ryan "flip something," resembling a pocketknife, and then watched as the victim ran toward the street.5 Moments later, the witness saw a "flash" from the corner of the store, heard a "really loud noise," and then saw the victim "drop[ ]." This witness testified that he saw a hand and something that "resembled a gun" "on the corner [outside] of the [convenience store]," the same place he saw the flash and heard the noise. He also placed a man resembling the defendant outside of the store at the time of the shooting, describing a "tall, dark" man who was "a little bit on the heavyset side." He was able to point out the man in a still image from a surveillance video recording.
Another eyewitness likewise reported seeing a man resembling the defendant walking back and forth outside the store. This witness described the man as having a "big nose" and "carrying a white towel." The surveillance video also depicted a man with a white towel outside the store. When the police interviewed the defendant weeks later, he was carrying a towel or rag and told police that "he sweats a lot," "[s]o he uses a rag to wipe his face."
Tyrell testified that he still was waiting by the car when he heard a "bang" come from the vicinity of the store. A few minutes after the "bang," Tyrell saw the defendant and Ryan walking toward him. Tyrell, Ryan, and the defendant then left the scene.
Karissa Oliveira, the defendant's girlfriend, testified that she talked to the defendant the morning after the murder. The defendant told Oliveira that he was at the convenience store with Ryan the previous night. According to Oliveira's grand jury testimony, which was admitted substantively,6 the defendant told Oliveira that he saw Ryan chase the victim, and that when the victim crossed the defendant's path, the defendant shot him one time.
Police and firefighters responded to the scene after multiple 911 calls from bystanders and a "shots fired" dispatch. An ambulance arrived and transported the victim to St. Luke's Hospital, where he was pronounced dead.
About a month after the shooting, the defendant voluntarily spoke to the New Bedford police. The defendant was indicted the following month, and after a jury trial, he was convicted of murder in the first degree, among other charges. See note 1, supra.
Discussion. 1. Motion for a mistrial. The defendant first contends that the trial judge erred in denying his motion for a mistrial. We disagree. The defendant had sought a mistrial after a witness, Pina, improperly testified about recognizing the defendant at the scene of the shooting, after the defendant's motion to suppress Pina's identification of the defendant previously had been allowed.
"We review the decision to deny a motion for a mistrial for an abuse of discretion." Commonwealth v. Bryant, 482 Mass. 731, 739, 128 N.E.3d 40 (2019). "Where a party seeks a mistrial in response to the jury's exposure to inadmissible evidence, the judge may correctly rely on curative instructions as an adequate means to correct any error and to remedy any prejudice to the defendant" (citations and quotations omitted). Id. at 740, 128 N.E.3d 40. Accordingly, although Pina's testimony constituted inadmissible evidence, given the judge's extensive and emphatic curative measures, we conclude that there was no abuse of discretion in denying the defendant's motion for a mistrial.
There is no question that Pina's testimony positively identifying the defendant was inadmissible. Pina previously had told investigators that he saw a man, whom he did not know, outside the convenience store at the time of the shooting. Pina had then identified this man as the defendant in a photographic array prepared by police. Prior to trial, the defendant successfully had moved to suppress this identification based on infirmities in the process by which police prepared the array and obtained the identification. However, at trial, when the Commonwealth sought to elicit a description of the man Pina had seen outside the store, Pina testified that the man's name was "Darius" (i.e., the defendant's first name).7 The defense objected immediately and moved for a mistrial.
Despite the clearly improper testimony, the judge did not abuse her discretion in denying the mistrial motion. First, the judge provided timely and forceful curative instructions to the jury. After a brief sidebar conversation, and before any other evidence was presented, the judge told the jury:
Thus, not only did the judge instruct the jury to disregard Pina's improper testimony, but she also made clear that this testimony was inconsistent with all Pina's prior statements. Second, we presume that jurors follow curative instructions, see Commonwealth v. Hernandez, 473 Mass. 379, 392, 42 N.E.3d 1064 (2015), and here the trial judge noted for the record that she saw several jurors crossing out writing in their notebooks during her instructions. Third, the judge spoke to Pina after Pina's testimony identifying the defendant, with the Commonwealth and defense counsel present, instructing Pina not to identify the defendant again. While speaking with Pina, the judge determined that Pina had learned the name "Darius" from the court paperwork. Fourth, based on this information, the judge encouraged defense counsel to elicit testimony from Pina that he did not recognize the man at the time of the shooting and had called him "Darius" at trial based only on subsequent court paperwork. Defense counsel did so. Fifth, defense counsel read to the jury a stipulation that stated: "Manuel Pina was shown a photo array and did not make an identification of Darius Gamboa when the photo array contained a photograph of Darius Gamboa." Given these timely, thoughtful, and extensive curative measures, the judge did not abuse her discretion in denying the defendant's motion for a mistrial.
2. Testimony relating to polygraph testing. The defendant next contends that there were three instances at trial in which admitted polygraph evidence constituted reversible error. In particular, the defendant takes issue with (1) testimony from Oliveira about the fact that, when she was interviewed by the police, she was willing to undergo polygraph testing and was, in fact, connected to a polygraph; (2) testimony from Lieutenant David Domingos, a former police polygraph examiner, about polygraph testing generally and specifically as it was used in the instant case; and (3) a video recording of the interview between Oliveira and Domingos, during which Oliveira was connected to a polygraph. We disagree and conclude that in no instance did the admission of the contested evidence constitute reversible error.8
Based on our existing case law, we reason that evidence that relies solely on the...
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...the verdict in consideration of the fact that he was [nineteen] years old at the time of the shooting." Commonwealth v. Gamboa, 490 Mass. 294, 311 n.13, 190 N.E.3d 469 (2022). Put differently, "the defendant asks us to consider his youth and immaturity in mitigation of his sentence." Common......