Commonwealth v. Keo

• Decision Date: 21 January 2014
• Docket Number: SJC–10949.
• Citation: 3 N.E.3d 55,467 Mass. 25
• Parties: COMMONWEALTH v. Kevin KEO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

467 Mass. 25

3 N.E.3d 55

COMMONWEALTH

v.Kevin KEO.

SJC–10949.

Supreme Judicial Court of Massachusetts, Essex.

Submitted Sept. 10, 2013.

Decided Jan. 21, 2014.

Leslie W. O'Brien, Boston, for the defendant.

Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

Timothy J. Cruz, District Attorney, & Robert C. Thompson, Assistant District Attorney, for the District Attorney for the Plymouth District, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

IRELAND, C.J.

On November 1, 2007, the victim in this case was shot and killed outside a restaurant in Lynn after being involved in an altercation with four young men, one of whom was Kevin Keo (defendant).¹ The defendant was indicted on a charge of murder in the first degree, and at a jury trial, the Commonwealth proceeded against him on a theory of deliberate premeditation based on his knowing participation in the crime, alone (as the shooter), or with others, with the requisite intent for murder.² See Commonwealth v. Zanetti, 454 Mass. 449, 466–468, 910 N.E.2d 869 (2009). The jury convicted the defendant of murder in the first degree. While his appeal was pending in this court, he filed a motion for a new trial that we remanded to the Superior Court. That motion, as subsequently amended, was denied, as was the defendant's request for an evidentiary hearing. The defendant's appeal from the denial of his motion for a new trial has been consolidated with his direct appeal. Represented by new counsel on appeal, the defendant asserts error in the denial of his new trial motion on the grounds that: (1) his trial counsel rendered constitutionally deficient assistance by failing to obtain a full transcript of a witness's testimony from another trial (involving Bonrad Sok [Sok], see note 2, supra ) for impeachment purposes, and (2) the trial judge erroneously admitted state of mind evidence. The defendant also argues, citing the United States Supreme Court's decision Miller v. Alabama, –––U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), that his mandatory sentence to life in prison without the possibility of parole is unconstitutional as applied to him as a juvenile under the Eighth Amendment to the United States Constitution, and that art. 26 of the Massachusetts Declaration of Rights prohibits imposition of a sentence of life without the possibility of parole on juveniles convicted of murder in the first degree. Last, the defendant seeks relief pursuant to G.L. c. 278, § 33E. We affirm the defendant's conviction and the denial of his motion for a new trial. We vacate the defendant's sentence and remand for sentencing consistent with Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 1 N.E.3d 270 (2013), and Commonwealth v. Brown, 466 Mass. 676, 1 N.E.2d 259 (2013).

Based on the Commonwealth's evidence, the jury could have found the following facts. The defendant and Bonrad Sok, on the one hand, and the victim, on the other, were members of rival gangs.³ The Commonwealth introduced evidence that the murder was committed in retaliation for a stabbing of the defendant by the victim approximately five weeks before the victim's murder. At the time of the stabbing, Sok and Vannarith Chhay (Chhay) had been with the defendant. Evidence also was presented that, two months prior to the shooting, the defendant's then girl friend overheard him telling someone that he had a gun, but that it was not in his possession.

In the late afternoon on November 1, 2007, the victim and his girl friend went to a restaurant in Lynn and sat at a booth inside. Nearby, Sok shared a table with Maverick Tran (Tran), Rebecca Pen, and her brother Moses. ⁴ Sok borrowed Rebecca's cellular telephone, ostensibly to contact his girl friend.⁵ Ten to fifteen minutes later, the defendant ⁶ and Chhay arrived at the restaurant and joined Sok's group.

The victim and his girl friend got up and left the restaurant, followed by Sok, Tran, and Chhay. Outside, Sok asked the victim whether he was a “cuz,” meaning “crip.” ⁷ The victim asked him why, and Sok repeated the question. When the victim answered affirmatively, the three men tried to “jump” and hit him. They chased the victim around his automobile, which was parked directly in front of the restaurant, as the victim's girl friend told them to stop.

The victim ran back inside the restaurant, followed by the three men. According to Rebecca, the defendant was at the front door when the men returned. There was a “fight” and the defendant fell on the floor. When the victim's girl friend reentered the restaurant, she saw Sok hitting the victim as he was held in a “bear hug” from behind by Chhay. The restaurant owner's son broke up the fight and told the group to leave. The victim and his girl friend left, followed by the defendant, Sok, Chhay, and Tran. The victim's girl friend did not recall seeing the defendant at the restaurant, inside or outside, but his presence there was established by Rebecca, the owner, and the owner's son, all of whom previously knew him.

The victim's girl friend was the only witness who testified to what next transpired. After leaving the restaurant, she and the victim walked over and stayed at the victim's automobile. Sok, Chhay, and Tran walked past them, and some distance away, to the left of the restaurant sign.⁸ The men faced the victim and his girl friend, and Sok and the victim exchanged words. The victim's girl friend heard a “ring” in her ear and looked at herself to see whether she had been shot. The victim said, “Babe, I got shot,” then dropped to the ground. Tran's “jaw dropped,” and he looked “shocked.” Sok and Chhay were gone. The victim's girl friend ran inside the restaurant and asked someone to telephone 911. The owner's son, who had heard a “pop” when the group had been outside, did so. He then ran outside and saw “several” people running down the street.

Police officers responded to the call from the restaurant at approximately 5 p.m. They recovered a .22 caliber discharged cartridge casing near the victim. The victim, who was found on the ground partly leaning against the front entrance to the restaurant, was transported to a hospital where he died. He died as a result of a gunshot wound to the torso, with perforations of the stomach, small intestine, and iliac artery. The bullet had entered the left side of his abdominal area and traveled “left to right, downward, and front to back.” The bullet lodged inside the victim's body; there was no exit wound.⁹

Just before 5 p.m., two men, working near the restaurant, saw four young men run past. Shortly thereafter, the defendant, Sok, Chhay, and Tran went to the home of a friend of the defendant, Malcolm Leng King (King), and woke him. They stayed in his room for approximately one hour. King heard the defendant say that something had happened at the restaurant and heard the defendant state, “We shot him.” Tran and Chhay left together; Sok and the defendant departed together.

On the Tuesday following the murder, the defendant saw Kevin Sim (Sim) at Rebecca's residence, where Sim also lived. Sim had heard about an incident at the restaurant and asked the defendant about it. The defendant told Sim that he had gone to the restaurant in response to a telephone call from Sok. The defendant stated that Sok, Tran, and Chhay were the ones involved in the initial altercation with the victim; the defendant remained inside. The defendant went on to tell Sim that once the victim had reentered the restaurant, the victim had assaulted the defendant and a fight had ensued. The owner told them to leave, but they continued to argue outside and the victim was shot. ¹⁰ The defendant told Sim that he had had no intention of harming the victim when he went to the restaurant.

Subsequent to the shooting, in a search of the defendant's home, police recovered one box of .22 caliber ammunition under the defendant's bed and two .22 caliber projectiles in his closet. One of the projectiles, as well as the boxed ammunition, bore the stamp “REM,” signifying its manufacturer, Remington. The other loose projectile bore a different marking, possibly a “T” or an “F,” indicating a different manufacturer. It appears that the .22 caliber discharged cartridge casing recovered near the victim at the restaurant was from a manufacturer different from that of the ammunition seized from the defendant's bedroom. Lieutenant Michael Vail of the Lynn police department, however, testified that a firearm capable of firing .22 caliber ammunition would be able to fire any brand of .22 caliber ammunition.

On the day following the shooting, police executed a search warrant at Sok's home. They did not find any firearms or ammunition,¹¹ but photographed three groupings of numbers on Sok's bedroom wall. Lieutenant Vail testified that, based on his training and experience, the numbers are used by local gangs to signify words. He gave his opinion that the numbers on Sok's wall stood for the words “blood family,” “insane gangster bloods,” and “crip killer.” ¹²

Testing of the victim's clothing revealed a pattern of nitrate particles. A chemist from the State police crime laboratory gave her opinion that this pattern indicated that the distance from which the victim had been shot could not have exceeded four feet.

The defendant was arrested several days after the shooting, on November 9, at Rebecca's residence. There, police found him hiding behind a bedroom door.

The defendant did not testify. His counsel argued that Sok had been the shooter and that the defendant's presence and membership in the same gang as Sok did not make him criminally responsible for the crime. The defendant produced one witness, Kathleena Am (Am), and introduced the grand jury testimony of Terry Leng (Terry). On November 1, Am was visiting Terry ¹³ and when she arrived, Terry's family was present as well as the defendant, Sok, Tran, and Chhay. Am...