Commonwealth v. Rosa

Decision Date20 May 2014
Docket NumberSJC–11377.
Citation9 N.E.3d 832,468 Mass. 231
PartiesCOMMONWEALTH v. Daniel ROSA.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Stewart T. Graham, Jr., for the defendant.

Marcia B. Julian, Assistant District Attorney, for the Commonwealth.

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

BOTSFORD, J.

A Superior Court jury found the defendant, Daniel Rosa, guilty of murder in the first degree on a theory of deliberate premeditation and of possession of a firearm without a license. The defendant appeals, arguing that (1) the trial judge erred in admitting evidence of bullet shell casings and live ammunition because the Commonwealth failed to prove that the defendant constructively possessed these items; (2) it was unduly prejudicial and violative of due process to admit the recording of a jailhouse telephone call made by the defendant in which he used street jargon and offensive language; (3) the defendant's constitutional rights were violated by the monitoring of his telephone calls from jail and a jail officer's sending to law enforcement authorities information derived from the calls; (4) the evidence was insufficient to prove the defendant guilty of murder in the first degree on a joint venture theory; and (5) the trial judge erred in failing to provide a special verdict slip and special jury instruction requiring the jury to determine separately whether the defendant was guilty of murder in the first degree as a principal or as an accomplice. We affirm the defendant's convictions and decline to grant relief under G.L. c. 278, § 33E.

1. Background. We recite the facts as the jury could have found them at trial, reserving certain details for later discussion. On January 26, 2011, at approximately noon, the victim, David Acevedo, was killed by a single gunshot wound to the back. The shooting occurred on Riverton Road in Springfield, near the home of Eric Caraballo, Sr., a mutual friend of the victim's and the defendant's.

Earlier that morning, at 9:30 or 10 a.m., the defendant had gone to his mother's home in Springfield to visit his daughter and to meet with a friend, Marcus Dixon. A dark-colored, two-door Honda automobile belonging to Dixon was parked there because the defendant was “holding” the car for Dixon. The defendant and Dixon left together in the Honda shortly after they both had arrived. Soon thereafter, the defendant went to Caraballo's house. At some point the victim also arrived at Caraballo's house and confronted the defendant about money that the defendant purportedly owed him. A heated verbal exchange ensued and the defendant and the victim began to fight, but Caraballo intervened. The defendant and the victim went outside to continue fighting while Caraballo remained inside. Several minutes later, the victim returned inside with a ripped, bloodied shirt, but he appeared otherwise unhurt. The defendant did not return inside.

Between approximately 10:30 and 11:30 a.m. the defendant made and received a series of telephone calls to and from Dixon and another friend, Jerell Brunson. Just before noon, the defendant telephoned Caraballo on his cellular telephone asking for the victim to meet him outside of Caraballo's house again. The victim and Caraballo went outside and they exchanged additional telephone calls with the defendant. Snow banks obscured their view of the defendant, but when he appeared, the victim went to meet the defendant near a stop sign at the corner of Riverton Road and Denver Street; Caraballo remained in his driveway. Moments later, Brunson and Dixon began walking down from the top of the hill on Denver Street toward Riverton Road; Dixon's Honda was parked near the top of the hill. As they walked, Brunson and Dixon began shooting in Caraballo's direction.1 Bullets struck an apartment building across the street from Caraballo's house as well as a car parked in front of that building. The victim turned away from the defendant and ran across the street toward the apartment building, yelling, “Duck!” Caraballo dropped to the ground and lay on his stomach behind the snow banks, pretending to be shot. The defendant took several steps toward the victim, who was running away. Caraballo saw the defendant holding a silver gun covered by a blue bandanna, one arm extended toward the victim. He heard “loud booms” peal from the defendant's hand. A single bullet struck the victim's back at a straight angle, injuring his spinal cord and causing cardiac arrest. The gunfire ceased and the defendant turned to Caraballo and said, “Remember that I love you.”

The defendant, Brunson, and Dixon retreated quickly up Denver Street toward the Honda. A man who lived on Denver Street, Gary O'Neal, observed a light-skinned man and a dark-skinned man, both holding revolvers, climb into the Honda.2 Of the three men (the defendant, Brunson, and Dixon), only the defendant had light skin. The three drove in the Honda to Brunson's house at 39 Slater Avenue, approximately one mile away, where they parted ways. 3

After being shot, the victim lay on the ground bleeding, and died before the paramedics arrived some minutes later. O'Neal, the Denver Street resident, had observed the rear license plate of the Honda he saw two men climbing into, and he wrote the number in the snow on his front porch. His recollection was close to the rear license plate number on the dark, two-door Honda that police officers later discovered at Brunson's house. Later that day, O'Neal identified the defendant from a photographic array provided by the police, stating that he was sixty per cent certain it was the man he saw leaving the crime scene holding a revolver.

Police investigators found two of three projectiles that struck the apartment building across the street from Caraballo's house. The projectiles included one .44 caliber bullet and another scrap of lead that was likely the core of a second .44 caliber bullet. The police were unable to recover the bullets that struck the car parked in front of the apartment building, or the bullet that killed the victim. The investigators did not find any shell casings at the crime scene, a fact suggesting that the gunmen used revolvers.

Within hours of the shooting, police encountered Dixon as he approached a parked car outside the defendant's mother's residence. After ascertaining Dixon's identity, the officers detained him for questioning. Dixon spoke with the officers at the police station, and then drove with them to locations where he had been during and after the shooting, including 39 Slater Avenue, Brunson's house. At that point, two police officers secured the premises of 39 Slater Avenue, leading to the discovery of the Honda parked in back, while other officers obtained a search warrant for the interior of the house. In the basement area where Brunson stayed, police discovered four casings for .357 caliber bullets and one casing for a .38 caliber bullet in a plastic storage unit next to Brunson's bed. They also found two live .44 caliber bullets in a clay vase on a shelving unit, as well as the defendant's driver's license stashed in a narrow slit in the underside of the box spring in the bed. Analysis of the shell casings revealed that all the .357 caliber bullet casings were fired from the same weapon, which never has been recovered.4 At trial, two witnesses testified to seeing the defendant with a large, silver revolver during the months prior to the murder. Although the defendant denied possessing such a firearm, he admitted to having previously a .22 caliber gun that he and a friend referred to as a “.350.” 5

In his trial testimony, the defendant explained that he had met up with both Dixon and Brunson at the defendant's mother's house in the morning of January 26, 2011, before going to Caraballo's house. Just before noon, Dixon drove Brunson and the defendant in the Honda directly from the defendant's mother's house to Caraballo's neighborhood. The defendant had planned to purchase “crack” cocaine from the victim so that Dixon could resell it. The defendant had met the victim near the stop sign at the corner of Denver Street and Riverton Road to exchange money for the drugs, which the victim passed to him in a blue cloth, while Caraballo stood in his driveway. Suddenly, Brunson and Dixon began shooting from the top of Denver Street, surprising the defendant because he was unaware that his friends had guns. Dixon walked nearly all of the way down the hill and shot the victim. After the shooting, the defendant left the crime scene with Brunson and Dixon in the Honda. The defendant stated that he did not have a firearm with him at any time during the shooting incident.

The Commonwealth proceeded against the defendant on the alternative theories of principal and joint venture liability.6

2. Discussion. a. Shell casings, bullets, and the defendant's driver's license. The defendant asserts that the trial judge erred in denying his motion in limine to exclude from evidence the bullet casings, live ammunition, and the defendant's driver's license found by the police hours after the shooting. The defendant argues there was no evidence at trial that he lived in, used, or ever was present in Brunson's bedroom, and he maintains that the record fails to show he had knowledge that any of the items were there, much less the ability and intent to exercise dominion and control over them. In the defendant's view, the presence of his license in the box spring on the bed, with no indication of who placed it there or when, was an inadequate basis on which to base a claim of constructive possession of the ammunition or even of the license itself.7

We review a judge's evidentiary rulings on a motion in limine for abuse of discretion. Commonwealth v. Spencer, 465 Mass. 32, 48, 987 N.E.2d 205 (2013), quoting Commonwealth v. Arrington, 455 Mass. 437, 441 n. 6, 917 N.E.2d 734 (2009). “Whether proffered ‘evidence is relevant and whether...

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