Commonwealth v. Ng
| Decision Date | 08 February 2023 |
| Docket Number | SJC-10476 |
| Parties | COMMONWEALTH v. Yat Fung NG. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James L. Sultan, Boston, for the defendant.
Ian MacLean, Assistant District Attorney (Lynn S. Feigenbaum, Assistant District Attorney, also present) for the Commonwealth.
Present: Budd, C.J., Gaziano, Cypher, Kafker, & Wendlandt, JJ.
The defendant, Yat Fung Ng, was convicted of murder in the first degree on a theory of deliberate premeditation after he shot and killed the victim, Karriem Brown, outside a bar in Boston.1 Following his conviction in 2008, the defendant was sentenced to life in prison without the possibility of parole pursuant to G. L. c. 265, § 2. The defendant filed his initial motion for a new trial in 2014, which subsequently was denied. This court consolidated the denial of that motion with the defendant's direct appeal from his convictions. Following oral argument, and review of the defendant's appeal pursuant to G. L. c. 278, § 33E ( § 33E ), the case was remanded for an evidentiary hearing on an unraised claim of ineffective assistance of counsel.2
After the order for remand, but before an evidentiary hearing was held, the defendant filed a second motion for a new trial. Following an evidentiary hearing, the judge allowed the defendant's second motion for a new trial. The Commonwealth appealed, and this court reversed the allowance of the motion for a new trial, concluding that trial counsel in fact was not ineffective. See Commonwealth v. Yat Fung Ng, 489 Mass. 242, 182 N.E.3d 287 (2022).
We now review the defendant's direct appeal of his underlying convictions, pursuant to § 33E, as well as his appeal from the denial of his initial motion for a new trial. The defendant raises seven issues: (1) whether the defendant's exclusion from all substantive sidebars during the course of the trial constitutes structural error warranting automatic reversal; (2) whether the trial judge abused his discretion in excluding the defendant's statement to Omar Sierra shortly after the shooting, where the judge determined that the statement constituted inadmissible hearsay; (3) whether the trial judge abused his discretion in admitting both the defendant's military records and expert testimony on the defendant's designation as an Army sharpshooter; (4) whether the closure of the court room during jury empanelment violated the defendant's constitutional right to a public trial; (5) whether trial counsel constitutionally was ineffective for failure to advocate for a verdict of guilty of murder in the second degree; (6) whether sentencing the defendant to life imprisonment without the possibility of parole, absent an individualized sentencing hearing, constituted cruel or unusual punishment; and (7) whether this court should reduce the defendant's conviction to guilty of murder in the second degree, pursuant to the powers afforded under § 33E. For the reasons discussed infra, we affirm the defendant's convictions, and we conclude that there is no reason to exercise our authority under § 33E either to reduce the verdict or to grant the defendant a new trial.
Background. We summarize the facts the jury could have found, reserving some details for later discussion. On May 23, 2004, at approximately 2 A.M. , a bar located on Beacon Street in the Fenway section of Boston was closing for the night. As the bar closed, patrons were being ushered out by the bar's security staff. The victim was among those patrons who were leaving, along with his two friends, Ray Lee and Standly Miranda.
As the patrons were leaving, an altercation ensued between a group of individuals and Lee and Miranda. At first, the altercation was verbal, mere banter about Lee wearing a New York Yankees baseball cap. However, the banter quickly turned to insults. A woman in one group began to insult Lee on his physical appearance, to which Lee responded with insults of his own, calling her a "bitch" and a "ho." At this point, the altercation became physical by way of pushing and punching. The victim was not involved in the initiation of the altercation, but he joined the fight when he saw Lee and Miranda were involved.
During the fight, witnesses described the victim as "throwing bodies" around. Someone involved in the fight tried to hit the victim; the victim then punched a man and pushed the woman who had been trading insults with Lee to the ground. The woman exclaimed that she was going to call police; in response, the victim grabbed the woman's purse and threw it onto the median in the middle of Beacon Street. As the fight was nearing an end, Lee retrieved a fraternity "step cane" from the trunk of his car, which was parked nearby, and began twirling it, telling members of the other group involved in the fight, "[Y]ou don't want any of this." Lee, however, did not use the step cane to assault anyone physically during the fight.3 The victim never was seen armed with a weapon of any sort before, during, or after the initial altercation.
As the initial fight had concluded, and security from the bar had dispersed the group of individuals who were fighting outside the bar, the defendant, who had witnessed the victim push the woman to the ground, "instinctively took his jacket off and ran right over to the scene." The defendant confronted the victim, Lee, and Miranda, and began to threaten them with a gun. More specifically, the defendant told the victim and his friends, "You think you're bullet proof, you think you're bullet proof"; 4
At this point, Lee and Miranda grabbed the victim and tried to bring him back to Lee's nearby parked car, but the victim still was "excited" from the earlier altercation. As Lee and Miranda brought the victim to Lee's car, the defendant continued "baiting" them in a loud, antagonistic manner. As the defendant baited the victim and his friends, the defendant repeatedly punched his palm.
Lee and Miranda finally were successful in getting the victim into Lee's car. Miranda returned to his own car to drive home. Lee tried to follow behind Miranda's car, but as Miranda drove away, Lee was forced to stop for a group of people who were walking in front of Lee's car at the intersection of Beacon and Miner Streets, near the bar.
While the car was stopped, the victim opened the passenger's side door and exited; he threw his jacket on the ground, ripped his shirt open, and began walking toward the front of the bar. The victim was yelling angrily at the defendant, asking why the defendant was threatening him. As the victim was yelling, the defendant walked to his own car, parked in front of the bar, to which the victim responded, "You better run." On hearing this, the defendant picked up his pace toward his car, walking purposefully. When a nearby witness told the defendant something to the effect of "It's over," the defendant responded with either "It's not over for me" or "I have business."
When the defendant arrived at his car, he initially searched through the driver's side door but then made his way to the trunk and emerged with a gun.5 The defendant turned to the defendant, raised the gun, and pointed it at the victim, saying, The victim responded, as well as At this point, the defendant and the victim were at least from ten to twenty feet away from each other, and they had stopped advancing toward each other.6
On hearing the victim's statements goading the defendant to shoot him, the defendant fired at the victim, hitting him in the forehead.7 The victim immediately fell backward onto the pavement.8 The defendant then got into his car and fled the scene. Seeing that the victim had been shot, Lee got into his car as well and sped after the defendant. Lee was unable to keep pace with the defendant but did manage to take note of the defendant's vehicle information, including his vehicle's registration number.
The defendant's vehicle information was broadcast to Boston police; he was stopped by police in nearby Chelsea, was brought back to the scene of the crime, and was arrested after being identified by witnesses as the shooter.
Discussion. 1. Exclusion from sidebar conferences. At trial, the defendant was excluded from all substantive sidebar conferences, despite his attorney's requests that he be present and subsequent objections on multiple occasions to the judge's decision to exclude him. The defendant argues that his absence from all substantive sidebars at trial violated his constitutional and procedural right to be present at all critical stages of the proceedings, thus constituting a structural error warranting reversal.
"Rule 18 (a) [of the Massachusetts Rules of Criminal Procedure, 378 Mass. 887 (1979),] provides that criminal defendants have the right to be present at all critical stages of a court proceeding." Vazquez Diaz v. Commonwealth, 487 Mass. 336, 343, 167 N.E.3d 822 (2021). "[A] defendant's right ‘to be personally present at every step of the proceedings against him ... is of ancient origin.’ " Id., quoting Commonwealth v. Bergstrom, 402 Mass. 534, 543, 524 N.E.2d 366 (1988). The rule is derived from the confrontation and due process clauses of the Sixth and Fourteenth Amendments to the United States Constitution, respectively, and art. 12 of the Massachusetts Declaration of Rights. Vazquez Diaz, supra at 344, 167 N.E.3d 822.
The defendant argues that his right to be present at all critical stages of the proceedings was violated because he was excluded by the judge from being present at all substantive sidebar conferences during the trial. In his brief, however, the defendant more narrowly focuses only on the sidebar conferences concerning the state of the evidence of his...
To continue reading
Request your trial
- Commonwealth v. Ridley
- Commonwealth v. Ridley
- Commonwealth v. Tavares
-
Commonwealth v. Shakespeare
...manifestly unreasonable mistake" in counsel's question to Stratton. See Commonwealth v. Yat Fung Ng, 489 Mass. 242, 252-253 (2022), S.C., 491 Mass. 247 (2023) ("any loss of credibility suffered as a result of trial counsel's [line of questioning] did not . . . deprive the defendant of an av......