Commonwealth v. Sanders

• Decision Date: 15 August 2022
• Docket Number: 20-P-735
• Citation: 101 Mass.App.Ct. 503,193 N.E.3d 1093
• Parties: COMMONWEALTH v. Odell SANDERS.
• Court: Appeals Court of Massachusetts

101 Mass.App.Ct. 503

193 N.E.3d 1093

COMMONWEALTH

v.Odell SANDERS.

No. 20-P-735

Appeals Court of Massachusetts, Suffolk.

Argued April 26, 2022

Decided August 15, 2022

Sara A. Laroche, Boston, for the defendant.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

Present: Green, C.J., Wolohojian, & Henry, JJ.

GREEN, C.J.

On the evening of July 25, 2018, the defendant maneuvered his vehicle into the oncoming lane of traffic and pulled alongside a black Audi sport utility vehicle (Audi) that was stopped at a traffic light. The occupants of the defendant's vehicle opened fire into the Audi, leaving its driver dead and the passenger seriously injured. The defendant was charged with murder in the first degree in connection with the shooting, but his passengers were never identified. Following a trial, a Superior Court jury convicted the defendant of the lesser included offense of murder in the second degree, assault and battery by means of a dangerous weapon causing serious bodily injury, unlawful possession of a firearm, and carrying a loaded firearm.¹

On appeal, the defendant contends that the Commonwealth presented insufficient evidence to support his convictions under a joint venture theory, and that the prosecutor's conduct was so prejudicial that he was not afforded a fair trial. We affirm.

Background.² 1. Facts. On the evening in question, brothers Jorge and Ashby Baez were visiting friends in the Franklin Field housing development in the Dorchester section of Boston.³ Shortly before 11 P.M. , the brothers headed home in the Audi. Jorge drove and Ashby was in the front passenger seat.

The brothers traveled down Westview Street and turned right onto Blue Hill Avenue. While stopped at a traffic light on Blue Hill Avenue, a silver Honda CRV (Honda) driven by the defendant pulled alongside the driver's side of the Audi. A passenger in the back seat of the Honda asked Jorge where he was from. Jorge did not respond to the inquiry; instead, he drove away and took a right turn down Talbot Avenue. Video footage from the area showed the Honda following the Audi thereafter for approximately four to five minutes.

Both vehicles ended up on Norfolk Street where several witnesses, including an off-duty Boston police officer, were standing on the street. They observed the Audi speed down the street, with the Honda following closely behind. The Audi came to a stop at a traffic light. The witnesses then heard the screech of the Honda's tires as it pulled over the double yellow line into the oncoming lane of traffic and stopped next to the driver's side of the Audi, slightly to its rear.⁴ "Moments later," gunshots rang out. In the span of less than four seconds, sixteen shots were fired from the Honda toward the Audi. No words were exchanged before the shots were fired. The driver's side rear passenger window and the front passenger side window of the Audi were shot out, but the front driver's side window was intact. The Honda then drove away down Norfolk Street. Ballistics analysis of bullets and cartridge cases recovered from the scene later revealed that at least three guns were used to fire on the Audi: a nine millimeter Luger, a .25 caliber automatic, and a .40 caliber Smith & Wesson.

The witnesses to the shooting came to the aid of the occupants of the Audi. Jorge had been shot in the left side of his torso, and was ultimately declared dead at the scene. Ashby suffered a gunshot wound to his left temple and was transported to the hospital for treatment. He is permanently blind in both eyes as a result of his injuries.

Approximately forty-five minutes after the shooting, the defendant called his mother and told her that someone had shot at him. The defendant's mother, who was the registered owner of the Honda, told the defendant to come back to the home that they shared with the defendant's stepfather.⁵ When the defendant arrived home, he told his stepfather that he was driving on Blue Hill Avenue when a vehicle pulled up and someone began yelling. He then saw flashes and heard glass shatter so he sped away.

Meanwhile, Boston police officers investigating the shooting were provided with a description of the Honda by the witnesses. After conducting a search, an officer located a report concerning a vehicle matching the make, model, and color of the one described that was connected to the defendant's home address. Acting on the information from this report, police officers arrived at the defendant's house around midnight and observed the defendant's stepfather backing the Honda into the driveway. The stepfather informed the police that he was helping his son because someone had just shot at him.

The defendant was across the street moving another vehicle into the driveway. When an officer tapped on the window of that vehicle and announced himself, he noticed the defendant lightly hit the bumper of the Honda as he parked the other vehicle in the driveway and struggled to put the vehicle in park. The defendant appeared nervous, was "wide-eyed," was breathing very heavily, and did not initially acknowledge the officer's presence. He was dressed in a tank top and compression-style underwear.

The defendant eventually told the officer that he was shook up because he was "just shot at." The defendant explained that he was recording music with a friend, "Old Boy or Mr. Old Boy," that evening. He was traveling home alone in the Honda down Norfolk Street near Codman Square when a black Audi pulled up next to him and someone in that vehicle asked if the defendant was "so and so." The defendant inquired what the person was talking about, at which point shots were fired at him. The defendant reported that he then called his mother and immediately went home.

On inspection of the Honda, the police observed that the front passenger side window was broken, but that very little glass was inside the vehicle or in the driveway. The police also noted fresh ballistics damage on the rear passenger side doorjamb of the vehicle. The Honda was further searched pursuant to a warrant, and police recovered three cartridge casings from inside the vehicle: one .40 caliber Smith & Wesson spent cartridge casing under the front passenger seat; another .40 caliber Smith & Wesson spent cartridge casing underneath the driver's seat; and one .25 caliber spent cartridge casing in the rear passenger compartment underneath the seatbelt casing. Gunshot residue also was found inside the front passenger and rear passenger windows of the Honda. A bullet hole in the frame of the rear passenger side window indicated that a bullet was fired from inside the Honda. The victims’ Audi also was searched but no firearms or spent cartridge casings were found in that vehicle.

The defendant was arrested one week after the shooting. He waived his Miranda rights and gave a statement to the police. He again explained that he was shot at while driving home alone from Old Boy's recording studio around 11:35 P.M. The defendant explained that he did not know Old Boy's exact address, but he lived in a light green house on Moultrie Street. The police attempted to identify and locate Old Boy, but were unable to do so based on the information provided by the defendant or their own additional investigative efforts.⁶

2. Defendant's case. The defendant testified on his own behalf at trial. He maintained that he was at the recording studio in Old Boy's house that evening. While the defendant was at the studio, Romario Cameron, a man with whom the defendant was previously acquainted from school, and two of Cameron's friends arrived. At Cameron's request, the defendant left the studio to give Cameron and his friends a ride to Cameron's house in the Hyde Park section of Boston. Cameron rode in the front passenger seat and his friends were in the back seat.

While in the Honda, Cameron got into a "dispute" with the occupants of the Audi before it drove off. Cameron then brandished a gun, pointed it at the defendant's stomach, and told the defendant to follow that vehicle. The defendant complied, and when they arrived at Norfolk Street, Cameron directed the defendant to pull up next to the vehicle. When the defendant did so, Cameron stuck his hand out of the window and began shooting. The defendant ducked because he believed that shots also were being fired in his direction. Cameron again pointed the gun at the defendant and told him to drive to Morton Street. At Morton Street, Cameron and his two friends cleaned out the Honda. Cameron then directed the defendant to drive them to Hyde Park.

When the defendant dropped off his passengers, Cameron verified the defendant's address by looking at the identification in his wallet and threatened to kill the defendant and his family if the defendant told anyone about the shooting. The defendant did not tell the police about Cameron when they arrived at his house or following his arrest because he was scared; however, the defendant testified he was no longer scared because Cameron was deceased by the time of trial.

Discussion. 1. Sufficiency of the evidence. The Commonwealth prosecuted the defendant on the theory that the defendant and his unidentified passengers participated in a joint venture to shoot Jorge and Ashby. The defendant unsuccessfully moved for a required finding of not guilty at the close of the Commonwealth's case. In our review of the denial of that motion, "we consider whether the evidence, together with all reasonable and possible inferences that may be drawn from it, is sufficient to permit a rational jury to find beyond a reasonable doubt the existence of every element of the crime charged."

Commonwealth v. Swafford, 441 Mass. 329, 339, 805 N.E.2d 931 (2004).⁷

To support a conviction on a theory of joint venture liability, "it was the Commonwealth's burden to show that the defendant (a) ‘participated in the commission of the crime charged,’ (b) did so ‘knowingly,’ and (c) ‘shared the required criminal intent.’ " Commonwealth v. Gonzalez...