Commonwealth v. Leiva

• Citation: 484 Mass. 766,146 N.E.3d 1093
• Decision Date: 09 June 2020
• Docket Number: SJC-12166
• Parties: COMMONWEALTH v. Julio Brian LEIVA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

484 Mass. 766

146 N.E.3d 1093

COMMONWEALTH

v.Julio Brian LEIVA.

SJC-12166

Supreme Judicial Court of Massachusetts, Hampden..

Argued September 10, 2019.

Decided June 9, 2020.

Stephen Paul Maidman for the defendant.

David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth.

David Rassoul Rangaviz, Committee for Public Counsel Services, K. Neil Austin, & Michael Hoven, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

Present: Gants, C.J., Lenk, Lowy, Cypher, & Kafker, JJ.

LOWY, J.

A Hampden County jury convicted the defendant of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder with attempted armed robbery as the predicate felony, in connection with the shooting death of William Serrano. The victim was shot seven times at close range, as he sat smoking a cigarette with his girlfriend on the back porch of the girlfriend's sister's Springfield home. Three men in dark hooded sweatshirts surrounded him, and one held a gun to his chest while the others searched his pockets. Trapped in his chair, the victim appealed to the men to "chill" and "leave me alone." Gun fire followed. At trial, the Commonwealth called the victim's girlfriend, who identified her ex-boyfriend, the defendant, as the shooter.

In this direct appeal from his convictions, the defendant contends that he is entitled to a new trial, principally due to his counsel's invocation of Mass. R. Prof. C. 3.3 (e), as appearing in 471 Mass. 1416 (2015) ( rule 3.3 [e] ), which "forced" him to testify by way of a narrative, causing myriad violations of his State and Federal constitutional rights.¹ The defendant also contends that (1) allowing the testimony of a substitute medical examiner, who did not perform the victim's autopsy, but who relied, in part, upon the original medical examiner's autopsy report in forming an expert opinion, violated his witness confrontation rights where the Commonwealth failed to show that the original medical examiner was legally unavailable; (2) failure to sever the defendant's trial from that of his codefendant resulted in prejudicial error because the trial judge admitted ammunition evidence found at the residence of his codefendant; and (3) his conviction of and sentencing for both felony-murder, with attempted armed robbery as the predicate felony, and armed assault with the intent to rob violated the double jeopardy clause of the Fifth Amendment to the United States Constitution. The defendant also requests relief pursuant to G. L. c. 278, § 33E.

After a thorough review of the record, we discern no reversible error, and we decline to exercise our authority under G. L. c. 278, § 33E, to reduce or set aside the verdict of murder in the first degree.

Background. 1. The evidence and proceedings at trial may be summarized as follows, reserving certain details for our analysis of the issues raised on appeal. The victim's girlfriend had also previously dated the defendant "on and off" for about two years. Although their dating relationship had ended about six months prior to the shooting, the girlfriend and the defendant remained friendly. The defendant visited Springfield several times per month, typically staying with friends on the third floor of an apartment building (friends' house). During those visits, he and the girlfriend saw one another regularly.

On the evening of the shooting, the victim accompanied the girlfriend to a family dinner that her sister was hosting at her residence. When the couple arrived with the girlfriend's mother between 5:30 P.M. and 5:45 P.M. , the victim situated himself in the living room to watch football, while the girlfriend joined family in the adjacent kitchen for dinner. About twenty minutes later, they were just finishing the meal when the defendant arrived, uninvited, wearing a dark hooded sweatshirt with the "Sons of Anarchy" logo emblazoned on the back. The girlfriend's sister offered him dinner.

The defendant sat in the kitchen, eating and sending text messages on his cell phone for about one-half hour, and then left. He returned to the gathering about fifteen minutes later, now wearing a dark puffy coat on top of the sweatshirt, visited for another ten to fifteen minutes, and then departed again. The defendant left through the back door of the house, onto a landing, where there was a small porch to his right and stairs on his left, which led down to the yard. As the defendant stepped onto the landing, he passed by the victim, who was sitting in a chair on the porch, smoking a cigarette with the girlfriend. From her seat on the victim's lap, the girlfriend saw the defendant walk down the stairs, then around to the right, and behind the porch.

A few minutes later, the defendant reemerged from behind the porch, followed closely by two other men in dark sweatshirts with raised hoods. The girlfriend recognized one of these other men as Amadi Sosa, one of the defendant's friends (codefendant). As the defendant mounted the stairs to the porch, the defendant pointed the sawed-off barrel of a shotgun at the girlfriend, who was then attempting to block the top of the stairway. As the three men pushed past her, the girlfriend opened the back door and shouted to her mother to call the police. The three men surrounded the victim, and the defendant held the barrel of the gun toward the victim's chest. The defendant instructed the other two men to "run his pockets," and they then bent over to reach into the victim's pockets.

The victim, trapped in the chair, protested to no avail. Standing at close range, the defendant shot the victim seven times; the two other men looked on. Screaming and bleeding, the victim managed to crawl inside, where police found him several minutes later, still alive and responsive. The victim was rushed to the hospital, where he died in surgery.

Immediately after the shooting, the defendant returned to the friends' house, entered through the back, and then locked the front door to the building and hid in an apartment one floor below his usual accommodations. Police came to the building and knocked on the door of the third-floor apartment; when no one answered, they waited for some period of time and then left. At about 7:30 P.M. , the defendant telephoned a female friend (driver) who had driven him from Framingham to Springfield and back several times in recent months. He stated his desire "to hear her voice one last time," told her "shit went down," and then hung up. The defendant's friend "Ketchup" telephoned the driver shortly thereafter, prompting the driver to depart for Springfield to pick up the defendant. At 7:52 P.M. , the defendant sent a text message to the driver, requesting pick-up at the codefendant's residence. The driver responded: "Babe, stay there." Shortly thereafter, the defendant messaged the driver with a different address for rendezvous. The driver knew this was the home of the defendant's friend "Ketchup," and had driven there for the defendant before.

When the driver arrived at Ketchup's residence, it was after 11 P.M. and the defendant was in a rush to leave Springfield. In the car, on the return trip to Framingham, the defendant appeared agitated, and the driver asked what had happened. In response, the defendant used the driver's cell phone to access the Internet and showed her a local news headline about a recent shooting in Springfield, on the street where the girlfriend's sister lived. Back at the driver's Framingham residence, the defendant told her he "went to go rob somebody" but things went wrong. The defendant evaded arrest until approximately one year after the shooting, when he was located in San Diego, California, and taken into custody. Police never recovered the murder weapon.

At trial, the Commonwealth proceeded against the defendant on all three theories of murder in the first degree: deliberate premeditation, extreme atrocity or cruelty, and felony-murder, with the predicate felony of armed robbery or attempted armed robbery.² The prosecution's case primarily relied upon the eyewitness testimony of the girlfriend,³ who identified the defendant as the shooter. During her trial testimony, the girlfriend also identified the codefendant and his brother as the two other men involved in the shooting,⁴ and revealed that she had seen the murder weapon at least once before the date of the shooting, at the codefendant's residence.

The Commonwealth also introduced video and ballistics evidence. The video footage, taken from surveillance cameras mounted in and around the friends' house, was probative as to certain details of the defendant's movements on the evening of the shooting.⁵ The ballistics evidence demonstrated that certain rounds of live .22 caliber ammunition police seized upon executing a warrant to search certain areas of the codefendant's residence both bore the same common manufacturer's markings as the seven shell casings recovered at the crime scene and were of a caliber identical to that of four bullets recovered from the victim's body, and to that of the single bullet and seven shell casings recovered at the crime scene. The Commonwealth's ballistics expert also testified as to his opinions, based upon personally performed prior testing of the seven shell casings and five bullets in evidence, that (i) all seven shell casings had been fired from the same unknown weapon capable of chambering and firing .22 caliber ammunition, and (ii) all five projectiles had been shot from the same unknown weapon capable of chambering and firing .22 caliber ammunition. Without a gun for use in testing, however, it was not possible for the expert to provide an opinion whether the same weapon had both ejected the casings and shot the bullets.

The theory of the defense relied on impeaching the girlfriend's credibility and criticizing the adequacy of the police investigation. The defendant exercised his right to testify in his own...