Commonwealth v. Swafford
| Decision Date | 30 March 2004 |
| Citation | 805 NE 2d 931,441 Mass. 329 |
| Parties | COMMONWEALTH v. GUS SWAFFORD (and six companion cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: MARSHALL, C.J., GREANEY, IRELAND, COWIN, & CORDY, JJ.
Charles K. Stephenson for Ricardo Gittens.
Dana Alan Curhan for Gus Swafford.
Joseph M. Ditkoff, Assistant District Attorney (David E. Meier, Assistant District Attorney, with him) for the Commonwealth.
Following a jury trial, Gus Swafford and Ricardo Gittens were found guilty of murder in the first degree and of assault with intent to murder.2 On appeal, Swafford argues that the trial judge erred in admitting gang affiliation testimony and in dismissing a deliberating juror; Swafford additionally argues that the Commonwealth committed improprieties during closing argument and that the judge improperly instructed the jury regarding the use of prior inconsistent statements, creating a substantial likelihood of a miscarriage of justice. Gittens raises claims similar to Swafford's, and additionally argues that his motion for required findings of not guilty should have been allowed, and that the Commonwealth presented false and misleading testimony to the grand jury. Having considered Swafford's claims and undertaken a complete review of the trial record, we affirm his conviction. We conclude, however, that the judge erred in denying Gittens's motion for required findings of not guilty, and therefore reverse the judgments against him. We accordingly do not reach the remainder of Gittens's claims.
1. Background. We recite the facts as the jury could have found them, reserving further details for discussion in conjunction with the specific issues raised. The defendants Gus Swafford and Ricardo Gittens were friends and members of the "Theodore Street Posse," a street gang in the Mattapan section of Boston. Located in that same section of Boston, at the end of Evelyn Street, is the Norfolk Street park (park). The park contains a playground area, basketball courts, a hut, tables, and benches.
On the evening of June 17, 1995, the defendants were among a group of ten to twenty people sitting and standing near the hut in the park, drinking and playing cards. John Foreman, a friend of the defendants and a member of the Theodore Street Posse, was also in this group. At some point during the evening, Antonio Jeremiah came to the park. Jeremiah was a life-long resident of Evelyn Street, and a number of those at the hut were friends of his. On seeing Foreman, with whom he had had an argument earlier in June, Jeremiah struck him in the face. A scuffle ensued and Foreman ran from the park pursued by Jeremiah and others. In the course of the chase, Foreman was struck by an automobile but regained his footing and kept running. Jeremiah caught up to him and a punching match ensued which was broken up by unidentified "mutual friends." Foreman left in an undescribed automobile and Jeremiah returned to his home on Evelyn Street.3
A short distance from the park, that same evening, there was a gathering of fifteen to twenty-five people outside of 568 Norfolk Street, the home of Jacqueline Bispham. Bispham was a friend of Jeremiah, and her house was a known neighborhood gathering spot for a group of friends associated with the Evelyn Street area of Mattapan. When the fight between Jeremiah and Foreman broke out and the chase ensued, a number of those gathered at 568 Norfolk Street ran to see what was happening.
The gathering at 568 Norfolk Street continued until approximately 1:45 A.M. in the morning of June 18, when an older-model brown hatchback vehicle (with clear windows) slowed or stopped in front of the house. The person in the front passenger seat, subsequently identified years later by eyewitnesses as Swafford, shouted, "What's up?" or "What's up now?" and then fired thirteen shots into the group, killing one person and injuring two more before driving off. The driver was a black male, as is Gittens.
The crime remained unsolved for some time. In January, 1997, police detectives interviewed Swafford, then incarcerated for other crimes, about the shooting. Over the next few weeks, Swafford made repeated telephone calls to friends asking them to go to his grandparents' home to retrieve certain "dogs" or "puppies" that were there. Because Swafford was in prison when he made these calls, they were recorded (as he was aware they could be). As a result of monitoring those calls, the police obtained a warrant and searched Swafford's grandparents' home. They found guns in the places that Swafford had said that his "dogs" or "puppies" would be. A police ballistician matched one of those guns to the shell casings found after the shooting at 568 Norfolk Street.
2. Discussion.
i. Gang evidence. At trial, through the testimony of a Boston detective who had been assigned to the police department's anti-gang violence unit and to the drug control division in Mattapan, the Commonwealth presented evidence regarding a gang known as the Theodore Street Posse. The evidence included the gang's locality (the area surrounding Theodore Street in Mattapan), its graffiti marking (an insignia containing the letters "TSP"), and its membership (including both of the defendants and John Foreman). The Commonwealth presented this evidence in order to establish the defendants' motive: retribution for the beating of a fellow gang member. Both defendants objected to the admission of evidence of gang affiliation at a preliminary motion hearing and at trial, and both again raise the issue on appeal.
We repeatedly have held that evidence of gang affiliation is admissible to show motive or joint venture, and have given deference to judges' determinations in that regard. See Commonwealth v. Correa, 437 Mass. 197, 201 (2002) (); Commonwealth v. Smiley, 431 Mass. 477, 484 (2000) (); Commonwealth v. Maldonado, 429 Mass. 502, 504 (1999) (). In so holding, we have noted judges' responsibilities in "minimizing the prejudicial nature of the evidence" through voir dire of prospective jurors and limiting instructions. Commonwealth v. Correa, supra. See Commonwealth v. Smiley, supra at 484; Commonwealth v. Maldonado, supra.
In this case, the "evidence of gang membership was relevant, and the judge's handling of the matter was exemplary." Commonwealth v. Maldonado, supra at 505. The gang affiliation evidence falls within the established acceptable use: the Commonwealth used the testimony to establish the defendants' retributive motive and joint venture. During jury empanelment, the judge questioned the potential jurors individually as to whether evidence "that the defendants may have been associated with an alleged gang at the time of the crimes alleged" would "affect their ability to be fair and impartial."4 The judge also carefully and thoroughly instructed the jury, once after the presentation of the gang evidence and again before deliberation, that the evidence could not be considered as evidence that the defendants were of bad character or had a propensity to commit the crimes charged, and, if believed, could only be considered on the limited issues of the defendants' state of mind, motive, and whether they were engaged in a joint venture. There was neither an abuse of discretion nor other error in the judge's handling of this evidence.
In addition to arguing that the gang affiliation evidence was prejudicial, Swafford maintains that the Commonwealth failed to establish an adequate foundation for the testimony, and that the judge improperly qualified the testifying police officer as an expert. At the motion hearing, both defendants objected to the police officer's qualifications; at trial, however, the defendants conceded the officer's qualifications and objected only to the relevance of the gang evidence.5 The police officer's qualifications were substantial,6 the testimonial foundation established at the motion hearing and at trial was adequate,7 see Commonwealth v. Cintron, 435 Mass. 509, 521 (2001) (), and we defer to the judge's evidentiary ruling. There was no abuse of discretion in qualifying the witness or in admitting his testimony. Accord Commonwealth v. Smiley, supra at 482-484.
ii. Dismissal of a deliberating juror. After the jury had spent roughly twelve hours in deliberation, the judge received a note from juror 16-2: After discussion with the parties, the judge replied by a letter: "Could you briefly be more specific as to why you need to talk with the Court, without mentioning anything about this case or the Jury's deliberations in any way" (emphasis added). In an effort to ensure that in answer to this inquiry the juror did not inadvertently divulge information regarding the deliberations, the judge additionally wrote: "Please check one of the following: Yes or No." To maintain proper confidentiality within the jury, the judge also advised: "Please do not discuss or share this in any way with other members of the Jury." In response, the juror checked "No." On receiving the juror's response, the judge again discussed the matter with the attorneys, and replied to the juror: ...
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