Commonwealth v. Heang

• Decision Date: 15 February 2011
• Docket Number: SJC–10376.
• Citation: 458 Mass. 827,942 N.E.2d 927
• Parties: COMMONWEALTHv.PYTOU HEANG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

458 Mass. 827

942 N.E.2d 927

COMMONWEALTH

v.PYTOU HEANG.

SJC–10376.

Supreme Judicial Court of Massachusetts, Essex.

Argued Oct. 8, 2010.Decided Feb. 15, 2011.

James E. Methe for the defendant.Catherine L. Semel, Assistant District Attorney, for the Commonwealth.Present: IRELAND, SPINA, BOTSFORD, & GANTS, JJ.

GANTS, J.

A jury in the Superior Court convicted the defendant on two indictments charging murder in the first degree on theories of deliberate premeditation and felony-murder for the shooting deaths of Amy Dumas and Robert Finnerty. The defendant was also convicted of armed home invasion and unlawfully carrying a firearm.¹ On appeal, the defendant argues that he should be granted a new trial because the trial judge erred by improperly admitting in evidence: (1) expert forensic ballistics testimony identifying a particular firearm as the one used in the shootings; (2) expert testimony regarding gunshot residue testing; (3) statements made by the defendant to police denying he committed the crime and requesting legal counsel; (4) two statements made by one of the codefendants; and (5) a videotape of security camera footage from a store. In addition, the defendant challenges the judge's individual voir dire of prospective jurors during jury selection and contends that a letter from a juror sent to the judge after the verdicts were returned indicates that the defendant was denied a fair trial. Finally, the defendant argues that the evidence presented at trial was insufficient to support the jury's verdicts and that we should reverse the judge's denial of the defendant's motion for required findings of not guilty. We conclude that the judge's rulings were either not error or not prejudicial error, and that the evidence was sufficient to sustain the convictions. Accordingly, we affirm the defendant's convictions. After a complete review of the record, we also conclude that there is no basis to exercise our power under G.L. c. 278, § 33E, to reduce his murder convictions to a lesser degree of guilt or to order a new trial.

1. Background. Because the defendant challenges the sufficiency of the evidence, we summarize the evidence in detail, considering it in the light most favorable to the Commonwealth and reserving certain details for our analysis of the other issues raised on appeal.

Shortly after 11 p.m. on Monday, May 16, 2005, Judith Finnerty, Robert Finnerty's wife,² answered a knock at the back door of the family's apartment at 58 Cottage Street in Lynn. She spoke with a young Asian man, later identified as Phap Buth,³ who asked to buy marijuana.⁴ Although she did not know his name at the time, Judith recognized Buth as someone to whom she had previously sold marijuana. She told him that the family no longer sold marijuana, but agreed to sell him a small amount nonetheless. Buth came into her apartment, purchased the marijuana, and left. Seconds after leaving, Buth knocked again on the door and asked to buy a second bag of marijuana. Judith cracked the door open and said, “No.” Buth forced open the door and two other individuals in black ski masks, black hooded sweatshirts, and black gloves rushed into the apartment holding handguns.⁵ Robert raised his walker and was shot once in the chest. Amy Dumas, the Finnertys' sixteen year old daughter,⁶ came running out of her bedroom to help her father and was shot twice in the back. Judith, who had tried to flee from the intruders and had fallen to the floor, was not shot. Both Robert and Amy later died from their wounds. The intruders fled without saying or taking anything.

Lynn police arrived at 58 Cottage Street within minutes of the shootings. For reasons that are unclear from the record, two officers went directly to an apartment building at 17 Morris Street in Lynn, a short distance away from 58 Cottage Street. On arrival, they saw an Asian male wearing a black hooded sweatshirt and jeans, later identified as the defendant, walking toward the front of the building along a path from the back of the building. The police stopped and pat frisked him but found no weapons.⁷ The defendant told the officers he had taken the bus from Revere to visit a friend named “Shaggy” who lived on the third floor at 17 Morris Street, but after knocking on the apartment door and receiving no answer, he was leaving to take the bus home. Judith Finnerty accompanied police to 58 Cottage Street to try to identify the defendant but she was unable to do so, and the defendant was released.

While the defendant was being detained and questioned, other officers entered 17 Morris Street through a door at the back of the building that was ajar and discovered an Asian male, later identified as Chon Son, on the third-floor landing.⁸ Inside a black baseball hat on that landing, the police found a bandana, a sweatband, three black gloves, and an Intratec AB–10 nine millimeter handgun. Several feet away from the hat on the landing was a Cobra .380 caliber handgun and a “doo-rag” cap, as well as another bandana at the top of the stairs. A fourth black glove fell to the ground when Son was pat frisked for weapons.

The police arrested Son and brought him outside for Judith Finnerty to identify, but she was unable to make a positive identification. During his booking at the police station, police found a receipt from a Pet Express store dated earlier that day in Son's possession. The police seized Son's clothing as evidence, swabbed his hands to test for gunshot residue, and swabbed a stain on his neck to test for the presence of blood.

Around the same time that the defendant and Son were found at or near 17 Morris Street, police encountered Buth walking on Light Street, several hundred yards away. Buth gave his name and said he had just gotten off a bus from Revere and was going to visit a friend “David” who lived on the street, although he could not provide David's last name. Buth agreed to return with police to 17 Morris Street, where Judith Finnerty identified him as the individual who had come to her back door to buy marijuana and then forced open the door. The police arrested Buth and, at the police station, seized his clothes as evidence and swabbed his hands to test for gunshot residue.

The police also attempted to locate the defendant but were unable to do so until some time after 2:30 or 3 a.m., when officers, who were conducting a physical surveillance, spotted the defendant on the street near his residence at 116 Thornton Street in Revere. The defendant agreed to return to Lynn to speak with investigators and was interviewed at the Lynn police station at approximately 5 a.m.

In the interview, most of which was tape recorded and played at trial, the defendant stated that he drove to Lynn in his sister's automobile with a friend named “Codam” around 8 or 9 p.m., dropped him off somewhere in Lynn, drove back to Revere, and then took a bus back to Lynn.⁹ Once back in Lynn, the defendant said that he went to his friend “Pinkie's” apartment looking for marijuana. He then went to see another friend, “Shaggy,” at Shaggy's apartment on the third floor of 17 Morris Street, but Shaggy did not answer when the defendant knocked on the door. The defendant said he then left the building and was immediately stopped by police when he went outside. The defendant claimed not to have seen anyone inside 17 Morris Street. The defendant also told investigators that he had been wearing black clothes and jeans that night.¹⁰ The defendant was released after the interview concluded and remained free until his arrest on May 21, 2005.

In the weeks prior to the shooting, both the defendant and Son had been seen with handguns. One witness described the defendant's gun as being “bigger” than Son's gun.

One or two nights before the shooting, on either May 14 or May 15, the defendant and Buth visited the apartment of Eang Logn and his friend, Jacquelyn Cordes. Buth had a large bag of marijuana, and asked Cordes if she would contact a drug dealer and trade the marijuana for “crack” cocaine, which she did. After the trade, the defendant asked Logn to telephone another drug dealer, which Logn refused to do because Buth had already traded his marijuana and the defendant had little money. Logn asked the defendant why he wanted him to make the call when he had no money. The defendant gestured, putting his hands beneath the belt of his pants, to which Logn replied, “If you have a gun, I would not let you get into my house.” The defendant did not say anything in response and left the house with Buth shortly thereafter.

At approximately 6 p.m. on May 16, the night of the shootings, the defendant drove Son, Son's sister, and Son's girl friend to a Pet Express store in Lynn, where Son bought fish and pet supplies.¹¹ After leaving the store, the defendant dropped off his passengers at Son's home in Saugus, but returned around 9 or 9:30 p.m., with Buth in the vehicle, to take Son and Son's girl friend to a fast food restaurant. After getting the food, the defendant and Buth dropped Son and his girl friend at Son's home. A short time later, Son's girl friend overheard a cellular telephone “walkie talkie” conversation where the defendant told Son to come outside, and Son left the house.

Also on the night of May 16, the defendant and Buth had arranged with an individual named Pany An, known as “Pinkie,” to go to Lowell at 9 p.m., but neither the defendant nor Buth showed up. Around midnight, the defendant came by An's apartment, which was near Morris and Cottage Streets in Lynn, looking scared and nervous. The defendant told An that his vehicle was parked in the area but he could not go to it because of the heavy police presence in the area. The defendant stayed for several hours in An's apartment and left after receiving a telephone call from his mother saying the police were at his house in Revere looking for him.

On the afternoon of May 17, after being questioned by the Lynn police and released, the...