Commonwealth v. Phim

• Decision Date: 14 June 2012
• Docket Number: SJC–10897.
• Citation: 969 N.E.2d 663,462 Mass. 470
• Parties: COMMONWEALTH v. David PHIM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

462 Mass. 470

969 N.E.2d 663

COMMONWEALTH

v.David PHIM.

SJC–10897.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 7, 2012.

Decided June 14, 2012.

Aziz Safar for the defendant.

Anne Pogue Donohue, Assistant District Attorney, for the Commonwealth.

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

LENK, J.

The defendant appeals from his convictions of murder in the second degree and related firearms charges. The defendant was convicted on retrial; the jury at his first trial were unable to agree on a unanimous verdict. The defendant contends, among other things, that State and Federal double jeopardy protections precluded the judge at the second trial from instructing the jury on accessory liability where no such instruction was provided to the first jury. We conclude that the instruction given at the second trial was appropriate, because it would have been supported by the evidence introduced at the first trial, and, in the circumstances of this case, did not invite the jury to convict on a theory of the crime abandoned or foreclosed by the Commonwealth at the first trial. We discern no other error that would warrant relief, and therefore affirm.

1. Background. We briefly recite the facts the jury could have found at the second trial,¹ reserving certain additional facts for later discussion.

On the evening of April 7, 2007, several bullets were fired into a window at 168 Fletcher Street in Lowell. One of those bullets hit Vuthavy Phay, a guest at a party being held at that house. Phay died from his injuries. At the time of the shooting, the defendant was in a dating relationship with a resident of 168 Fletcher Street, Jennifer Chhea.² Jennifer lived there with her parents and siblings. The eldest of her siblings, her brother John, was a member of the “Asian Boyz” gang. The defendant was a member of a rival gang, “TRG Grey.”

The jury reasonably could have inferred that these rival gang affiliations were a source of tension between John and the defendant. The jury heard testimony that John, as well as other family members, disapproved of Jennifer's relationship with the defendant, and would not allow the defendant into their house. In her testimony, Jennifer suggested also that when John learned the defendant had been in their house, he threatened the defendant with physical harm.

Less than a week before the murder, Jennifer told the defendant that she had engaged in sexual relations with another man. On April 7, the day of the shooting, Jennifer told him that she was pregnant. The defendant reacted angrily, throwing her on the bed and punching her.

Later the same day, the defendant met with his friend Roth Em, who had also previously dated Jennifer. Em had recently quarreled with Jennifer, expressing his disdain for her brother John's gang. At trial, Em testified that, on April 7, he, the defendant, and two other men had gone together to Fletcher Street. Em stated that he and the defendant walked up an alley behind 168 Fletcher Street. From the alley, the defendant shot several rounds into one of the building's windows.

If not himself the shooter, Em was the only percipient witness to the shooting. Jennifer's middle brother, Bunthorng, testified that he saw the defendant with a gun outside the building immediately after the shooting. ³ However, Bunthorng heard, but did not see, the shots being fired, and therefore could not testify to whether it was Em or the defendant who had fired the gun.

On June 28, 2007, a grand jury returned indictments charging the defendant with murder in the first degree, possession of a firearm, possession of a loaded firearm, and possession of ammunition. The defendant's first trial began before a Superior Court jury on March 10, 2009, and terminated on March 24, when the trial judge declared a mistrial after receiving two notes from the jury declaring that they were “hopelessly” and “truly” deadlocked. The defendant's retrial before a second jury commenced on August 11, 2009, with a different judge presiding. This jury convicted him of murder in the second degree, and also of each of the firearms charges. We granted the defendant's application for direct appellate review.

[462 Mass. 473]2. Discussion. The defendant's primary claim on appeal concerns the variance between the instructions to the two juries. He contends that the additional instruction on accessory liability given to the second jury, which he characterizes as explaining a theory of guilt withheld from the first jury, violated State and Federal protections against double jeopardy. As explained in part 2.a, infra, the defendant's argument misconceives the relationship between accessory and principal liability and is therefore unavailing.

The defendant argues also that the judge improperly admitted evidence of his gang affiliation, that certain testimony by a substitute medical examiner violated the right to confront the witnesses against him under the Sixth Amendment to the United States Constitution, and that the foreperson had an impermissible personal connection with a prosecution witness. We discern no error in the admission in evidence of gang affiliation or in the selection of the jury. Further, while certain portions of the substitute medical examiner's testimony were improperly admitted, the testimony did not create a substantial risk of a miscarriage of justice. a. Double jeopardy. The Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” This language, and parallel Massachusetts statutory and common law, generally preclude the Commonwealth from trying a defendant more than once for the same offense. See G.L. c. 263, § 7; Commonwealth v. Cassidy, 410 Mass. 174, 176, 571 N.E.2d 383 (1991). However, an exception to this rule is made where a prior trial terminated in a mistrial due to “manifest necessity.” Illinois v. Somerville, 410 U.S. 458, 461, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824).

The trial judge's belief that the jury is unable to reach a verdict “has long been considered the ‘classic basis' for a proper mistrial.” Blueford v. Arkansas, ––– U.S. ––––, 132 S.Ct. 2044, 2047, 182 L.Ed.2d 937 (2012), quoting Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). So long as the Commonwealth “presents evidence legally sufficient to convict” at the first trial, double jeopardy will not generally “bar retrial after a mistrial [is] declared because of a ‘hung jury.’ ” Berry v. Commonwealth, 393 Mass. 793, 794, 798–799, 473 N.E.2d 1115 (1985), citing Thames v. Commonwealth, 365 Mass. 477, 479, 312 N.E.2d 569 (1974). Unless there is evidence of bad faith by the judge or the prosecutor, retrial is appropriate even where jury deadlock may have resulted from judicial errors or omissions. See Choy v. Commonwealth, 456 Mass. 146, 152, 927 N.E.2d 970, cert. denied, ––– U.S. ––––, 131 S.Ct. 425, 178 L.Ed.2d 330 (2010); Commonwealth v. Ellis, 432 Mass. 746, 752, 739 N.E.2d 1107 (2000) (even if judge's failure to give joint venture instruction to deadlocked jury had been error, such error would not have precluded retrial absent showing of bad faith). At a subsequent trial, the judge is not bound to repeat the mistakes and omissions made in instructing the jury at the first trial. See Choy v. Commonwealth, supra at 153, 927 N.E.2d 970;Commonwealth v. Ellis, supra. See also United States v. Lorenzo, 570 F.2d 294, 299 (9th Cir.1978) (declaration of mistrial rendered harmless any errors in jury instructions at first trial).

The present case falls squarely within these principles. At the defendant's first trial, the judge instructed the jury on the elements of each offense without informing them that the defendant could be convicted of murder as a joint venturer regardless whether he physically possessed the firearm and personally pulled the trigger.^4,5 The defendant recognizesthat the Commonwealth was entitled to a broader instruction, but points out that the Commonwealth did not object to the judge's omission.

On August 3, 2009, eight days before the defendant's retrial commenced, we issued our decision in Commonwealth v. Zanetti, 454 Mass. 449, 910 N.E.2d 869 (2009)( Zanetti). In that case, we observed that our prior decisions had “renounce[d] the false distinction between a principal and an accomplice,” and had “recognized that the accomplice commits the crime no less than the principal.” Id. at 464–465, 910 N.E.2d 869, and cases cited. We therefore explained that “judges are to instruct the jury that the defendant is guilty if the Commonwealth has proved beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged,” id. at 467–468, 910 N.E.2d 869, regardless whether as principal or accomplice. The instructions given at the second trial accorded with Zanetti, supra; the judge in fact quoted verbatim from the jury instructions set forth in that case. See id. at 470, 910 N.E.2d 869 (Appendix). The defendant did not object to the jury charge.

Because the instructions at the first trial contained no reference to joint venture liability, the jury at that trial could have been left with the impression that, to find the defendant guilty of murder, they had to determine unanimously that he had personally fired the fatal shot. Any such impression would have been erroneous. See id. at 466, 468, 910 N.E.2d 869.

Notwithstanding the defendant's contentions, the Commonwealth's ability to retry the defendant does not depend on whether the first jury would have been deadlocked had they been given a complete instruction on the law of murder, one that made clear that the defendant's guilt did not depend on whether he personally had fired the gun. There is no allegation, and no evidence, suggesting that the judge's failure to provide an...