Commonwealth v. Vasquez

• Citation: 462 Mass. 827,971 N.E.2d 783
• Decision Date: 17 July 2012
• Docket Number: SJC–10140.
• Parties: COMMONWEALTH v. Luis VASQUEZ (and five companion cases ).
• Court: United States State Supreme Judicial Court of Massachusetts

462 Mass. 827

971 N.E.2d 783

COMMONWEALTH

v.Luis VASQUEZ (and five companion cases ¹).

SJC–10140.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued March 9, 2012.

Decided July 17, 2012.

Stephen Paul Maidman, Springfield, for Ismael Vasquez.

David A.F. Lewis, Woburn, for Luis Vasquez.

Kevin S. Nixon, Boston, for Scott Davenport.

Zachary Hillman, Assistant District Attorney (Patrick M. Haggan, Assistant District Attorney, with him) for the Commonwealth.

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

SPINA, J.

Following internal upheaval in a gang, five gang members and a nonmember associate executed a sixth member. Two other members ² testified against the others pursuant to cooperation agreements with the Commonwealth. Scott Davenport (Davenport), the nonmember who also killed the victim, testified that he acted under duress. Following a joint trial of four defendants, the jury found all defendants guilty of murder in the first degree, as well as other crimes.³ On appeal, Davenport claims he was entitled to an instruction on duress as a defense to murder. Luis Vasquez (Luis) and Ismael Vasquez (Ismael)argue that their respective defenses were mutually antagonistic and irreconcilable with Davenport's defense of duress, and their trials should have been severed. They also argue that a single justice erred by directing the trial judge to permit the Commonwealth to exercise a peremptory challenge against a juror who failed to make complete disclosure of his criminal record on his juror questionnaire, where the prosecutor discovered the juror's omission after declaring his satisfaction with the juror but before the jury were sworn. Ismael argues separately that the judge erred by denying his motion for recusal based on statements the judge made during a plea colloquy with Ana White, who testified pursuant to a cooperation agreement. Luis argues separately that the judge erred by (1) admitting a statement of the defendant Harold Parker (Parker), in violation of the rule in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); (2) denying his request for a hearing pursuant to Commonwealth v. Lanigan, 419 Mass. 15, 641 N.E.2d 1342 (1994), to challenge the reliability, and thus the admissibility, of expert opinion testimony on bloodstain pattern analysis, also known as blood spatter analysis; and (3) denying his motions for a required finding of not guilty as to the charge of aggravated rape, where he asserts the evidence was not sufficient to prove that the victim did not consent to natural and unnatural sexual intercourse. We affirm the convictions and decline to grant relief pursuant to G.L. c. 278, § 33E.

1. Background. We recite the facts that the jury could have found. We reserve certain details for discussion of particular issues. In the fall of 2001, an area in the Harvard Square area of Cambridge known as “The Pit” was a popular meeting place for young people, many of them homeless. Among them were Io Nachtwey, the victim, and Gene Bamford (Bamford), her boy friend. In mid-to-late October, 2001, newcomers Parker and Ismael appeared and announced a plan to form a new “Crips set,” a gang, in Harvard Square. They ousted the existing local leader of the Crips and began recruiting people who frequented “The Pit.” Among those recruited were Ana White (White), Lauren Alleyne (Alleyne), Bamford, and the victim.

The newly formed gang met on Halloween in a cemetery near Harvard Square. Ismael, Parker, and Bamford led the meeting, which consisted of an induction ceremony. The meeting moved to a motel in Braintree, where Ismael, Parker, and Bamford explained the rules of the gang. This included the performance of “missions,” whereby members would rob people of money to support the gang. A member who failed at a mission would receive a “violation” accompanied by a punishment. For the first two violations, punishment would consist of a beating. Punishment for a third violation would be death. If the violating member could not be found, then punishment would be meted out against those closest to that member. Certain “marriage” ceremonies then took place, including Ismael to White, Parker to Alleyne, and Bamford to the victim. Ismael, Bamford (whom Ismael appeared to favor), and Parker were the gang's leaders, in descending rank.

The next day, November 1, 2001, gang members were sent on missions to rob people. The victim did not participate because she was considered too childlike and a likely burden on the missions. None of the missions was successful, which upset Ismael and Parker. One of the members was given a violation and beaten later that night during a meeting at the cemetery. The members were instructed to go back into the streets and collect money. Ismael introduced Luis as an overseer of the gang. Eventually, one of the sorties was successful, and the gang went to a diner to celebrate. Afterward, they retired for the night to the motel.

On the morning of November 2, Ismael assigned missions to gang members. He sent one group, led by Bamford, to Harvard Square to get money by any means, and report back that night. The victim remained at the motel with Luis, Ismael, and Parker. Alleyne went with Bamford's group to Harvard Square. While in Harvard Square, Bamford and his group learned that Luis, Ismael, and Parker were members of the Latin Kings gang, and that they were organizing a “false” set of Crips to send on “suicide missions.” One member of Bamford's group asked the others to reject their Crip flags. Bamford's group devised a plan to obtain a gun and rescue the victim from the motel.

On November 3, Alleyne, who had been with Bamford's group the day before, went to the motel and informed Luis, Ismael, and Parker of Bamford's plan. The three men were furious. Ismael made arrangements with his friend, Davenport, to use his vehicle in exchange for heroin. The group drove to Lawrence. While the four men went to get heroin for Davenport, the victim, White, and Alleyne waited at the home of Ismael's sister in Lawrence. There, the victim told White and Alleyne about a dream she had of blood dripping from a tree. She said she interpreted her dream to mean she knew Bamford would turn against the group. White became angry.

After the men returned and picked up the three women, the group drove toward Boston. On the way, White demanded that the victim tell the men about her dream. This worried the victim. Ismael asked the victim to explain, so she related what she had told White and Alleyne earlier. She added that they did not have to worry about her because she was their friend. The victim tried to get out of the car when it stopped at a red light. Ismael told the others not to let her out. White prevented the victim from leaving.

The group stopped at a park. The men walked off to confer while the women waited at a park bench. When they returned, Ismael asked the victim to repeat the description of her dream. The men again walked off. The victim asked White and Alleyne what was going to happen. When the four men returned, she pleaded with them to allow her to prove herself. Ismael showed her a knife and said she had to get Bamford. The group then started toward the car. As they were walking, Parker told White and Alleyne that they were going to “get” the victim. He instructed them that, when they heard the words “green light,” they were to pull the victim to the ground and hold her down while Davenport stabbed her. The group returned to the car. Luis drove to a side street in Cambridge near the Boston University Bridge, which spans the Charles River. One of the men said the group was going for a walk. Luis and the victim separated from the others. Luis had sexual intercourse with the victim, and she performed fellatio on him. Ismael said to Davenport, “You know what you have to do.” Ismael repeated for White and Alleyne the plan that Parker had directed them to carry out, adding that they should walk with the victim along the tracks on the railroad bridge under the Boston University Bridge. Davenport said he did not want to kill the victim, but Ismael handed him a knife with a ten-inch blade and told him, “You're not getting out of here if you don't.”

As the women walked along the tracks the victim told White and Alleyne that she loved Luis and could not believe she had ever been with Bamford. Although she professed to be happy, she appeared frightened and asked the women what was going to happen to her. As they neared the half-way point on the railroad bridge Ismael shouted “green light.” White and Alleyne pushed the victim onto the tracks, held her down, and covered her mouth. Davenport ran toward them. He shouted, “Die, die, bitch, die,” and stabbed her repeatedly. The victim screamed. She tried to protect herself by raising her knees to her chest. White and Alleyne tried to muffle her voice, but the victim kept screaming and begged them to stop.

Luis ran up the tracks and told them, “Get the fuck out of there.” He struck the victim several times in the head with a pair of “nunchucks” as Davenport continued to stab her. The victim sustained several stab wounds, incised wounds, and defensive wounds, in addition to multiple lacerations and blunt force trauma to her head. After she stopped moving, Luis and Davenport threw her body into the river below. Ismael directed White to make sure she was dead. White went to the edge of the river. She saw the victim floating face down and motionless. Davenport ran his hands through his hair and exclaimed, “What a rush!” White and Alleyne sang on the way back to the car. Ismael proclaimed,“This is real, no turning back now. Blood in, blood out.”

2. Duress. Davenport argues that the judge erred by instructing the jury: “Duress ... is not a defense to first degree murder, either under the theory of [deliberate] premeditation or by extreme atrocity or cruelty. Likewise, duress does not ... excuse the intentional murder of an...