Commonwealth v. Lugo

• Citation: 47 N.E.3d 41,89 Mass.App.Ct. 229
• Decision Date: 18 March 2016
• Docket Number: No. 14–P–1208.,14–P–1208.
• Parties: COMMONWEALTH v. Jose LUGO.
• Court: Appeals Court of Massachusetts

89 Mass.App.Ct. 229

47 N.E.3d 41

COMMONWEALTH

v.Jose LUGO.

No. 14–P–1208.

Appeals Court of Massachusetts, Suffolk.

Argued Nov. 9, 2015.

Decided March 18, 2016.

Jacob B. Stone, Randolph, for the defendant.

Matthew T. Sears, Assistant District Attorney (Megan E. O'Rourke, Assistant District Attorney, with him) for the Commonwealth.

Present: CYPHER, TRAINOR, & RUBIN, JJ.

Opinion

CYPHER

, J.

The defendant, Jose Lugo, appeals from his convictions by a jury of assault and battery with a knife, assault and battery with a shod foot, and assault with a knife. He argues that the trial judge's denial of his motions for a required finding of not guilty was error because there was insufficient evidence of his participation in a joint venture to support his convictions of assault and battery with a knife and assault with a knife. He claims error also in the prosecutor's closing argument and the jury instructions on prior inconsistent statements. We affirm the defendant's convictions.

Background. On April 12, 2012, friends Victor Ramos, Milton Henriquez, Edwin Colon, and Alejandro Naranjo spent the evening together at a Boston nightclub. At closing time, around 2:00 a.m. , the four friends returned to their car, which was parked across the street in a multilevel garage. Waiting in a line of vehicles to exit the garage, the friends were approached by a man from a vehicle in front of theirs who, thinking that they had been honking the horn, punched Colon and Naranjo through their open passenger's side windows. The four friends got out of their car and Henriquez traded blows with the man before being separated by the friends and others from surrounding vehicles.

When the brawl subsided and the crowd of people who had gathered to watch or take part in the fight began to disperse, a sport utility vehicle (SUV) from an upper level of the garage approached the area and stopped and two men emerged. One was a tall, skinny man, later identified as Javier Fernandez, and the other was a short man with braids, later identified as the defendant. According to testimony by Ramos, the two men appeared to be intoxicated and angry, “[L]ike they wanted to do something.”

After greeting and shaking hands with people from the surrounding vehicles, the two men approached Ramos and Henriquez and engaged them in a tense verbal exchange. During the exchange, Fernandez and the defendant stood side by side facing Ramos, and Henriquez stood behind Ramos, facing the defendant. Fernandez and the defendant talked to Ramos and Henriquez, but did not speak to one another. Ramos, attempting to defuse the situation, suggested that they all go home and touched Fernandez on the shoulder or arm, provoking Fernandez, who asked, “[A]re

you disrespecting me?” Fernandez left the group and went back to the SUV while the defendant continued talking to Ramos and Henriquez.

Returning from the SUV, Fernandez circled around the group and, approaching Henriquez, stabbed him in the side, under his armpit. Henriquez put his hand on Ramos's shoulder and declared that he had just been stabbed. Ramos saw a knife in Fernandez's hand as Fernandez stepped forward, twice jabbing the knife at him. Ramos grabbed Henriquez and took off running up a ramp to an upper level of the garage. Fernandez and the defendant immediately gave chase, running shoulder to shoulder with another man, identified only as wearing a black polo shirt. As Ramos and Henriquez ran, Fernandez stabbed at Henriquez, who stumbled and fell to the ground. Fernandez slashed and stabbed at Henriquez and the defendant kicked and stomped on him as he lay on the ground.

Security guard Jeffrey Swanson testified that he observed the defendant stomping on Henriquez with the open sole of his shoe, “like he was trying to put out a fire.” While Henriquez was being kicked and stabbed, Ramos grabbed hold of him and tried to drag him away from the assailants. The attack, which lasted about two or three minutes, was interrupted when security guards arrived and ordered the men to stop.

As the security guards assessed the situation and waited for police to arrive, they observed the defendant walking briskly away from the scene and Fernandez throwing a knife under a car. The two men were detained by security personnel. When police arrived, Ramos pointed out the defendant and Fernandez as the men who had attacked Henriquez. Sergeant Michael Talbot testified that while the defendant was in custody at the police station, his behavior was combative and he refused to allow Talbot to photograph a scratch on his hand. A bloodstain taken from the chest area of defendant's outer shirt was determined to be consistent with Henriquez's deoxyribonucleic acid profile.

Discussion. 1. Sufficiency of the evidence. The defendant moved for a required finding of not guilty at the close of the Commonwealth's case and again at the close of all the evidence. He claims that these motions were improperly denied because the evidence failed to prove that he participated in a joint venture with knowledge that his companion was armed with a knife. In reviewing the denial of a motion for a required finding, we examine the relevant evidence in the light most favorable to the

Commonwealth and ask whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979)

, quoting from Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “We take this view of the evidence notwithstanding any evidence to the contrary presented by the defendant.” Commonwealth v. Garcia, 470 Mass. 24, 30, 18 N.E.3d 654 (2014), quoting from Latimore, supra at 676–677, 393 N.E.2d 370.

In reviewing the sufficiency of the evidence on a theory of joint venture, we must determine whether the evidence presented supports a finding that “the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense.” Commonwealth v. Norris, 462 Mass. 131, 138–139, 967 N.E.2d 113 (2012)

, quoting from Commonwealth v. Zanetti, 454 Mass. 449, 468, 910 N.E.2d 869 (2009). In addition, where, as here, “the conviction on a joint venture theory is for a crime that has use or possession of a weapon as an element,” the evidence must suffice to show that the defendant knew that his coventurer was armed with a knife. Commonwealth v. Britt, 465 Mass. 87, 100, 987 N.E.2d 558 (2013).

There was testimony at trial that the defendant and Fernandez were friends who had spent the evening together before they arrived on the scene. The defendant participated in the verbal exchange with Ramos and Henriquez and witnessed Fernandez's escalating agitation during the encounter. The defendant stood in a position, facing Ramos and Henriquez, where he could observe Fernandez circle around and stab Henriquez in the side. After Henriquez announced that he had been stabbed, the jury could also have inferred that the defendant could see Fernandez jab the knife twice at Ramos.¹ The defendant immediately took off with Fernandez in pursuit of Ramos and Henriquez and, when Henriquez was on the ground, the defendant kicked and stomped on him while Fernandez repeatedly stabbed him. “At no time

during this conflict did the defendant seek to withdraw.” Commonwealth v. Sexton, 425 Mass. 146, 152, 680 N.E.2d 23 (1997)

.

From the defendant's actions, a rational trier of fact could conclude, beyond a reasonable doubt, that the defendant possessed the intent to engage in an assault on Ramos and in an assault and battery on Henriquez with Fernandez, and that the defendant was present and saw that Fernandez was armed with a knife the moment Fernandez first stabbed Henriquez. Additionally, the defendant was kicking Henriquez as Fernandez stabbed at him. “There is no need to have an ‘anticipatory compact.’ It is enough that ‘at the climactic moments the parties consciously acted together in carrying out the criminal endeavor.’ ” Commonwealth v. Young, 35 Mass.App.Ct. 427, 435, 621 N.E.2d 1180 (1993)

, quoting from Commonwealth v. Fidler, 23 Mass.App.Ct. 506, 513, 503 N.E.2d 1302 (1987).

2. Prosecutor's closing argument. The defendant challenges certain portions of the prosecutor's closing argument, claiming numerous reversible errors. In particular, he claims that the prosecutor made an improper propensity argument, argued facts not in evidence, misstated evidence, suggested that she had independent knowledge of the truth, engaged in burden-shifting, and repeatedly used the term “victim,” in violation of the judge's pretrial order. The challenged statements to which the defendant timely objected—concerning propensity, facts not in evidence, and burden-shifting—we review for prejudicial error. See Commonwealth v. Silva–Santiago, 453 Mass. 782, 807–810, 906 N.E.2d 299 (2009)

. The portions of closing argument to which the defendant did not object but challenges now on appeal—concerning the suggestion of independent knowledge, misstatement of evidence, and use of the term “victim”—we review for any “substantial risk of miscarriage of justice.” Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999). “Remarks made during closing arguments are considered in context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury.” Commonwealth v. Whitman, 453 Mass. 331, 343, 901 N.E.2d 1206 (2009).

a. Propensity argument. Referring to evidence of the defendant's consciousness of guilt, the prosecutor stated, “[T]he defendant had been convicted of this behavior in the past, resisting arrest. Well we can see that here today, right, he tried to walk away once from the security, once from the Boston police.” To the extent that the prosecutor's remark equated the defendant's prior conviction with a propensity to evade responsibility in the present circumstances, it was improper. “It is a fundamental rule

that the prosecution may not...