Commonwealth v. Penn

• Decision Date: 09 September 2015
• Docket Number: SJC–10503.
• Citation: 472 Mass. 610,36 N.E.3d 552
• Parties: COMMONWEALTH v. Luis PENN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

472 Mass. 610

36 N.E.3d 552

COMMONWEALTH

v.Luis PENN.

SJC–10503.

Supreme Judicial Court of Massachusetts, Essex.

Argued May 8, 2015.

Decided Sept. 9, 2015.

Dana Alan Curhan, Boston, for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

Present: GANTS, C.J., CORDY, DUFFLY, LENK, & HINES, JJ.

Opinion

GANTS, C.J.

A Superior Court jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation for the killing of the victim, Aneury Guzman.¹ The critical issue in the case was whether the victim had been shot by the defendant or by the defendant's friend, Benjamin Serrano, who minutes before the shooting had confronted the victim with a firearm, handed the firearm to the defendant, and then engaged in a fist fight with the victim.

On appeal, the defendant claims that he is entitled to reversal of the murder conviction because the evidence was insufficient as a matter of law.² Alternatively, he claims that, even if the evidence were legally sufficient, the court should exercise its authority under G.L. c. 278, § 33E, to vacate the conviction, order a new trial, or reduce the conviction to murder in the second degree because the verdict was contrary to the weight of the evidence and not consonant with justice. In addition, he claims that the murder conviction should be vacated or a new trial ordered because his right to a public trial was violated by the unconstitutional closure of the court room during jury selection; because the jury were not instructed about the risk of honest, but mistaken, eyewitness identification; and because the prosecutor vouched for the accuracy of the key eyewitness and expressed her personal belief in the defendant's guilt during closing argument. Finally, the defendant claims that, even if his murder conviction were to be affirmed, he is entitled to a reduction in sentence to life with the possibility of parole where he was seventeen years old at the time of the killing. We affirm the defendant's conviction of murder in the first degree, but order the case remanded for resentencing in accordance with Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 671–674, 1 N.E.3d 270 (2013), S.C., 471 Mass. 12, 27 N.E.3d 349 (2015).

Background. Because the defendant challenges the sufficiency

of the evidence, we recite the evidence in the Commonwealth's case-in-chief in detail and in the light most favorable to the Commonwealth. See Commonwealth v. Labadie, 467 Mass. 81, 93–94, 3 N.E.3d 1093, cert. denied, ––– U.S. ––––, 135 S.Ct. 257, 190 L.Ed.2d 191 (2014).³ Because the defendant additionally claims that the verdict is contrary to the weight of the evidence, we also summarize the other relevant evidence, including the defendant's trial testimony. See Commonwealth v. Franklin, 465 Mass. 895, 896, 992 N.E.2d 319 (2013).

1. Commonwealth's case-in-chief. Serrano had dated Jennifer Suarez “on and off” for approximately four years when she ended her relationship with Serrano and began dating the victim in January, 2004. Serrano told Suarez that “he didn't want [her] with [the victim],” and that she was “his girl and [was] always going to be with him.” Serrano also threatened the victim, telling Suarez that “he's going to kill” the victim, and “[w]atch when he catches him.”

On the evening of April 1, 2004, Serrano knocked on the apartment door of Suarez's cousin, Vicky Gonzalez, who resided in a three-story multifamily building in Lawrence near the corner of Haverhill Street and Oxford Street. Gonzalez “cracked” open the door and saw Serrano, whom she knew, dressed in a “brown down coat.” Serrano's jacket had a hood, but he did not “have it on.” Just behind Serrano was a man she did not know, who was dressed “all in black”: “[b]lack sneakers, black pants, [and a] black jacket.” The man had his “hood” on, and his face was “totally covered” with “what must have been a mask or something.” Serrano asked for Suarez, and pushed the door, trying to look into the apartment. Gonzalez told him to leave, and Serrano said, “I want Jennifer and I know she's here.” Gonzalez told him that she would call the police if he did not leave, and he and the other man left.

Unknown to Serrano, the victim was in the apartment when Serrano tried to enter. Minutes earlier, the victim had come to the apartment in an automobile with his friends, Johan Abreu and

Santo Suarez,⁴ and they were waiting for the victim in the automobile in a parking lot off of Oxford Street outside the entrance to Gonzales's apartment. When Serrano walked outside, he banged on the hood of the automobile.⁵ After Abreu asked Serrano what he was doing there, Serrano pulled out a gun from his waistband and told them “it's not with you” and “to get ... out of here.” As this was happening, the victim came out of the apartment building and stepped between Serrano and his friends, facing Serrano. Serrano pointed the gun at the victim's face and said, “Look where I found him,” “this is the way I want[ed] to catch you.” He asked, “Who's a bigger man with a gun?” Abreu screamed at Serrano to put down the gun and fight with his hands. The victim told Serrano, “Do what you got to do.” Serrano struck the victim with his free hand and called for “Fifty” to come out, at which point the defendant came out from an alley alongside the apartment building.⁶ Serrano said he wanted to fight the victim, and handed the defendant his gun. Serrano and the victim started “scuffling,” and then “wrestling, trying to throw each other down to the ground.”⁷ The defendant, who was pointing the gun at the victim, said, “Fuck these dudes,” and Santo ran. Abreu saw the victim “trying to cut loose,” and Abreu ran, thinking the victim was going to run behind him. Abreu ran “faster than a cat” up Haverhill Street, and then down an alley back towards the entrance to Gonzalez's apartment. As he was running down the alley, he heard a gunshot. He then ran back to the corner of Haverhill Street and Oxford Street, where he found the victim “[l]aying down” on the sidewalk. He did not see who had fired the gunshot.

The medical examiner concluded that the victim died from a single bullet wound at the top and towards the rear of the victim's head. From the nature of the wound, he offered the opinion that the barrel of the gun was against the victim's scalp, and that the path of the bullet was “downward.”

The only witness to the shooting was Jose Estrella, who was at a gasoline station on Haverhill Street on the opposite side of the street from where the shooting occurred, pumping gasoline into his car on the street side of the pump. From that vantage point, he saw a man, later identified as the victim, run north on Oxford Street and turn left on Haverhill Street. The victim suddenly stopped on Haverhill Street and turned around to face in the direction of the corner with Oxford Street. He saw a second man running right behind the victim, who stopped “right on the corner” after the victim stopped, and who then began to walk towards the victim. The victim raised both hands above his waist and said something to the second man, who said something back. The second man continued to approach, getting so close to the victim that he was “breathing on [his] face.” The second man then lifted his right hand upwards over his head, “swinging” it around and pointing it downward towards the head of the victim. Estrella heard a gunshot, and the victim immediately fell to the ground. The second man walked back in the direction from which he had come, and then began to run.

Estrella noted that it was dark and drizzling when he saw the shooting. From his vantage point, Estrella was between 178 and 230 feet from the location of the shooting. Estrella saw that the shooter was wearing a black or dark-colored winter coat, with a hood over his head. Estrella testified that the second man was taller than the victim, and that he could see when they came close together that the second man's chin nearly touched the center of the victim's forehead.⁸

The victim was five feet, six inches tall; Serrano is five feet, five inches tall; the defendant is five feet, eleven inches tall.

During the examination of the crime scene, next to a bloodstain on the sidewalk the police found a Virgin Mary medallion that belonged to Serrano, a single .22 caliber shell casing, and a closed pocket knife. Nearby, they found a Jesus medallion that belonged to the victim, and a jacket that belonged to the victim.^{9 , 10}

The first 911 call reporting the shooting was made at approximately 9:00 p.m. Approximately twenty minutes later, Officer Jamie Adames conducted an investigative stop of Serrano in the Essex Street projects, which is approximately “three intersections” from the location of the shooting. Serrano was wearing a black “bubble” jacket. The jacket had a hood, but Serrano was not wearing the hood, even though it was “pouring” rain. Officer Adames conducted a patfrisk of Serrano, but found no weapons.

On the evening of April 3, after speaking by telephone with the defendant, Stephanie Bertone traveled by taxicab to a motel in Middleton, where the defendant was now staying.^{11 , 12} The defendant told her that “there were people after him.” They stayed for “a couple of days” at the motel, and then traveled to Shamokin, Pennsylvania, where they stayed with a friend of the defendant's mother. While in Pennsylvania, Bertone asked the defendant why they had left and why they were there. The defendant told her that he was driving around with “Benji” in Benji's motor vehicle when Benji saw “some kid that he had a problem with and they stopped the car.” Benji got out of the vehicle and “started arguing with the kid and he ended fighting with him.” When the kid had Benji down on the ground, Benji told the defendant to get out of the vehicle and bring him the gun that Benji had in it. The defendant walked over to “where Benji and the other kid were fighting,” and the defendant ...