Commonwealth v. GAMBORA
| Decision Date | 02 September 2010 |
| Docket Number | No. SJC-10472.,SJC-10472. |
| Citation | 457 Mass. 715,933 N.E.2d 50 |
| Parties | COMMONWEALTH v. Jesus GAMBORA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Stewart T. Graham, Jr., for the defendant.
Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.
Present: MARSHALL, C.J., IRELAND, SPINA, CORDY, & BOTSFORD, JJ.
A jury convicted the defendant, Jesus Gambora, of murder in the first degree on theories of deliberate premeditation and felony-murder, unlawful possession of a firearm, possession of ammunition without a firearm identification card, and eleven indictments charging armed robbery. Prior to sentencing, the judge dismissed seven of the armed robbery counts as duplicative. The defendant appeals, claiming (1) fingerprint evidence linking him to the crime scene was not sufficiently reliable to warrant its admission; (2) it was error to admit evidence of a shoe print found at the scene; (3) it was error to excuse a juror for cause; (4) there was insufficient evidence of deliberate premeditation; and (5) the indictment did not provide notice of felony-murder. Finally, the defendant asks us, pursuant to G.L. c. 278, § 33E, to reduce the degree of guilt or order a new trial. We affirm the convictions and decline to grant relief under G.L. c. 278, § 33E.
Background. The evidence would have warranted the jury in finding the following. Ray Desai and Jaya Desai, the victim, owned and operated two West Springfield hotels, the Rodeway Inn and the Ramada Limited. The Desais lived with their sons Ajay and Sandip 1 in an apartment connected to the Rodeway Inn office. On April 18, 2003, Ajay was working in that office. Around 10 p.m., a Ramada Limited desk clerk, Robert Flaherty, delivered a bank bag containing the day's cash receipts and approximately $450 in cash. Ajay brought the bank bag through a door behind the front desk into his family's apartment and set it down on stairs that led from the living room to upstairs bedrooms where his wife and two children of family friends were sleeping.
Shortly thereafter, another family friend, Azam Rabbani, arrived to work the 10 p.m. to 5 a.m. shift at the Rodeway Inn front desk. Before starting work, Rabbani walked through the same door into the Desais' living room and sat down on the couch to talk with Ajay. Suddenly, the two men heard a noise coming from the office. Ajay noticed motion on a security monitor and, when he gave a closer look, saw two men jumping over the front desk. Rabbani started toward the door to the office and one of the intruders came through the door into the living room, put a gun against Rabbani's neck and forced him to the floor. The gunman then did the same to Ajay, telling Ajay not to look at him. Rabbani heard the two intruders demanding money and noticed their Spanish accents (although they were speaking in English). One of the men asked, “Where's the safe?” Ajay pleaded with the gunman not to hurt anyone, telling him that he would give him whatever he wanted.
Sandip, still upstairs in the family quarters but hearing the noise and commotion, ran to the top of the stairs on the second floor. He saw the gunman running toward him and retreated, directing his father to dial 911. When Sandip returned to the top of the stairs, he saw his mother, Jaya, at the bottom of the stairs, screaming, “Get out of the house.” Ajay and Sandip each heard two gunshots and saw Jaya fall. One bullet struck Jaya in the chest, penetrating her heart and left lung and causing the massive bleeding that led to her death. A second bullet struck an electrical box on the wall, knocking out some of the lights.
Ajay tried to go to his mother, but the gunman stopped him and again demanded, “Where is the money?” Ajay directed him to the bank bag on the stairs. Sandip heard the exchange and saw that the two intruders were confused. He, too, pointed them to the bank bag and said, The gunman told Sandip to “shut up” or he would “cap his ass, too.”
The gunman then demanded the security surveillance tape. Sandip ran to the surveillance equipment and tried unsuccessfully to eject the tape. As Sandip was explaining that the machine would not work, he stood about five feet away from the gunman and got a “good look” at him. The gunman told Sandip, “[D]on't look at me or I'll kill you.” The gunman ripped the entire surveillance unit from the wall and the intruders fled with it. Ajay and Sandip ran to their mother, who was barely breathing. Ajay stayed with her until paramedics and police arrived. Sandip ran back upstairs and again telephoned 911.
External surveillance videotape obtained from a neighboring business showed a car with front quarter panels that differed in color from the rest of the automobile pull into the Rodeway Inn parking lot at 10:14 p.m. 2 and leave at 10:18 p.m. Police received a radio call around 10:21 p.m. and arrived at the scene shortly thereafter. Paramedics transported Jaya to Baystate Medical Center where she was pronounced dead from the gunshot wounds.
Police secured the scene. In addition to the bank bag and surveillance equipment that were taken, Rabbani was missing his wallet and three keys on a ring attached to an “Azam” nametag; Ajay was missing a computer bag containing a computer, a “Palm Pilot” device, and computer discs; and Sandip was missing his wallet. In searching the parking lot outside the Rodeway Inn that night, Officer Brian Duffy found the faceplate of the missing surveillance equipment and also observed a footprint in the dirt. Police photographed and made a stone casting of the footprint. State police Detective Lieutenant John Drawec noticed a “herringbone pattern type of impression commonly seen on the bottom of a shoe” on the front desk, which he tried to photograph and preserve, but was unable to do so successfully. Police “lifted” twenty-nine fingerprints from the interior of the Rodeway Inn, as well as prints from the door pull leading into the office.
Ajay described the gunman as wearing a hat backward and a gray “hoodie” sweatshirt, adding that he had a Spanish accent and distinctive eyes. Sandip described the gunman as a young, Hispanic male wearing a backward baseball cap with alternating red and white panels and a sweatshirt. Sandip, too, noted the gunman's distinctive, light-colored eyes. When police showed Ajay and Sandip a photographic array that included a photograph of the defendant, neither made a positive identification. Sandip did identify the defendant's photograph as having “similar eyes” to the gunman.
On April 20, two days after the murder, State Trooper Christopher Barons stopped a 1990 Acura automobile driven by the defendant. The front quarter panels differed in color from the rest of the car. Barons asked the defendant for his driver's license and registration. The defendant replied that he had no license, that the car was unregistered, and that he had purchased it a couple of days earlier. The defendant was arrested, and the Acura was towed. At the time he was stopped, the defendant wore a red and white paneled baseball cap. Police subsequently searched the Acura pursuant to a warrant and found five keys on an “Azam” key chain in the center console and a piece of adding machine tape in the passenger door side pocket that Flaherty later identified as a receipt from the Ramada Limited that he had placed in the bank bag on April 18. On April 23, Rabbani identified the “Azam” key ring and his three keys. He told police, however, that two keys on a smaller separate ring that had been attached to the key ring did not belong to him.
At the police station, the defendant stated that his address was 182 Nursery Street, unit 2L, in Springfield. The police obtained and executed a warrant to search that residence. In a bedroom closet where the officers conducting the search found health care membership cards and other papers bearing the defendant's name and photographs of him, they also located two pairs of sneakers, one size nine and one size nine and one-half. 3 According to State police Detective Lieutenant Brian O'Hara who testified as an expert witness on footwear impressions, the left shoe that was part of the pair of size nine sneakers corresponded in manufacturing design, shape, and size to the footprint found in the Rodeway Inn parking lot.
The defendant testified to the following. On April 18, 2003, he went to a “strip club” with his friend, Willie Watkins, where he drank heavily and used heroin. He left the club and got in a car that Watkins was driving. They stopped to pick up another man, who the defendant knew as “Pistol Pete.” The defendant and Watkins had planned to go to a motel to have some drinks, but, “[d]runk and high,” the defendant passed out on the way. When he woke up, he was alone in the car. The defendant believed his companions had gone to rent a room, so he got out of the car and walked toward the lobby. As he opened the front door, Watkins and Pistol Pete ran out, so he ran with them back to the car. He had not known that Pistol Pete was armed, but once they were back in the car, he saw Pistol Pete waving a gun. Watkins told him that Pistol Pete had shot a woman. The defendant became angry and told his companions that he wanted to go his own way, but then opted to stay with them while they disposed of the security camera and the gun in a river because he was afraid of Pistol Pete, who had threatened him and his family.
The defendant further testified that the pairs of size nine and size nine and one-half sneakers that the police found in the closet at 182 Nursery Street did not belong to him and would not fit him because he wore a size ten. He was not staying with his family at 182 Nursery Street at the time of the murder, but rather, was staying with his girl friend at her apartment. He admitted to wearing the...
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