Commw. v. Stack

• Decision Date: 07 December 1999
• Docket Number: P-2075
• Citation: 49 Mass. App. Ct. 227,728 N.E.2d 956
• Parties: (Mass.App.Ct. 2000) COMMONWEALTH, vs. ROSEMARY STACK (and nine companion cases <A HREF="#fr1-1" name="fn1-1">1 ). No.: 97- Argued:
• Court: Appeals Court of Massachusetts

Page 956

728 N.E.2d 956 (Mass.App.Ct. 2000)

COMMONWEALTH, vs. ROSEMARY STACK (and nine companion cases¹).

No.: 97-P-2075

Massachusetts Court of Appeals, Hampden

Argued: December 7, 1999.

Decided: May 25, 2000.

[Copyrighted Material Omitted]

James R. Knudsen for Frank Gonzalez.

Thomas C. Foley for Richard Gonzalez.

Susan Murphy for Raul Cortes, Jr.

James Hammerschmith, Committee for Public Counsel Services, for Rosemary Stack.

Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

Present: Jacobs, Kaplan, & Porada, JJ.

KAPLAN, J.

In April, 1995, the named defendants-appellants (and other defendants not involved in the present appeal) were tried to a jury on events that occurred about a year earlier. The appellants were convicted as follows:

Rosemary Stack, Richard and Frank Gonzalez (brothers), and Raul Cortes, convicted of conspiring, see G. L. c. 274, § 7, to commit an armed assault in a dwelling, G. L. c. 265, § 18A;

Stack and the Gonzalez brothers, convicted of conspiring, see G. L. c. 274, § 7, to murder Marcos Serrano, G. L. c. 265, § 1²;

Gonzalez brothers and Cortes, convicted of possession of sawed-off shotgun, G. L. c. 269, § 10(c), and ammunition, G. L. c. 259, § 10(h); the convictions on the latter charge were placed on file.

They severally raise issues to be discussed below.

A. The evidence.³ (1) In the course of executing a search warrant, State Troopers Steven Griffin and John Michel discovered drug paraphernalia and some cocaine in a shoe box under the bed of Iris Espada in her apartment in Agawam. The date was February, 1994. When asked by police whether she was associated with the "Latin Kings," a gang known to be operating in Springfield and Holyoke, Espada said no, but she added she had earlier been offered membership. In fact, Espada in November, 1993, had become acquainted with Richard Gonzalez; in December, 1993, she saw Richard frequently, and on more than one occasion during this period Richard asked if she would like to become a fellow member of the Latin Kings. She had declined. Now, responding to Troopers Griffin and Michel, Espada began by agreeing to introduce an officer to one of her neighbors known to be dealing drugs; later she went further and decided to join the Latin Kings for the purpose of acting as an informant.⁴ She joined in early April.⁵ Thereafter Espada regularly communicated with the troopers, met them before and after gang meetings, and gave them copies of gang documents.

(2) From the beginning, Espada served as recording secretary and a "Crown" (a leader) of the Kings. She attended her first official meeting of the gang on April 23, 1994. Before the meeting, Espada joined in Springfield with the Gonzalez brothers, Raul Cortes, Juan Irizarry, Virgilio Berrios, and other members, and they traveled together in several cars to gather at the Holyoke apartment of Rosemary Stack. One of these cars was a maroon Buick with a white top owned by Berrios. Officers conducting surveillance captured on videotape the cars arriving at Stack's place.

The meeting at Stack's, attended by fifteen to twenty persons, including the defendants who are appellants in this case, lasted two and one-half hours. Espada soon understood that Stack, the Gonzalez brothers, Raul Cortes, and Juan Irizarry were "Crowns." Richard Gonzalez, as chairman, asked Frank to open the meeting with a "family prayer." He led a discussion about collecting money to benefit imprisoned gang members and to buy weapons. He mentioned an "un tumbe"⁶ mission to "find locations where [an opposing gang] sell drugs" so that armed members could "go in and assault them, take the drugs, take the weapons and take the money." Espada understood that in "un tumbe" missions members would be armed for protection but were not to plan to kill anyone.

Stack raised her hand, made a Crown symbol with her fingers, asked permission to speak, and said, "Don't forget about Mikey." Richard said there was a "green light on" to kill Mikey, and Stack then offered to look into a location for Mikey so that the "brothers" (the members) could carry out the mission. Stack was to get the information and pass it along. Thus ended the meeting.

(3) Espada had taken detailed minutes of the April 23 meeting, which were received in evidence at the trial in redacted form. The minutes record the murder plan about Mikey, but do not record the plan about other missions as to which Espada gave testimony. The minutes, however, mention a plan to borrow a shotgun from "Alf" and a program for members to meet on Saturdays and perform missions on Sundays when there was believed to be a less formidable police presence.

As to the ranking of members, the first page of the minutes lists Richard as president and Frank Gonzalez as vice-president of the Springfield Latin Kings, Espada president of the Springfield Latin Queens, and Stack president of the Holyoke Latin Queens. Espada testified that Raul Cortes was a Crown, but he does not appear with the other Crowns on the page.⁷

(4) The following Saturday, April 30, in early afternoon, Espada again met in Springfield with the same group as on April 23, plus Victor Polanco, before they drove in several cars, including Berrios's Buick, to Stack's Holyoke apartment. The group and other members convened outside the apartment and all proceeded to a park, Avery Field in Holyoke, there joining other Kings to a total of about twenty.

Upon arrival, the group of Crowns who had had a rendezvous in Springfield, now omitting Polanco, detached themselves and held a separate meeting. Espada had brought along her minutes of the April 23 meeting and asked these Crowns to sign if they found the minutes accurate. All signed. Raul Cortes, who did not understand English, signed after Espada translated the minutes for him.

These Crown members discussed the tasks to be performed that night: Richard Gonzalez summed up -- to kill Mikey and to hit enemy locations to "make money, steal dope, and take the weapons." Stack reported she knew Mikey's location, had seen him on the first floor of her apartment building. All agreed the murder would happen that night.

The group talked in particular about the "three different locations they were going to assault," namely, 118 Newton Street, Holyoke; 59 Margaret Street, Springfield; and another address in Springfield.⁸ Richard said these locations were going to be "done" that night. Espada testified she tried "to persuade them not to do these missions" and asked the others to meet at seven o'clock that evening before setting out on the tasks. All shook hands as the parley ended, and they then joined the larger group on the basketball court. Police officers, filming at a distance, recorded the gathering on videotape, but could not pick up the conversations.

At seven o'clock that evening Stack telephoned Espada, had she heard from the brothers? Stack had seen Mikey; he had waved a gun at her. The brothers had not appeared at Espada's apartment but at eleven o'clock Richard Gonzalez called Espada and she told him there were "problems" (unspecified) in Holyoke. Richard said he knew and was on his way to Holyoke in Berrios's car.

Espada then called Trooper Michel who notified State and Holyoke police.

(5)⁹ At rollcall, about 11:45 P.M., Holyoke police were told that a maroon Buick with white top, transporting armed gang members, was on its way to Holyoke.¹⁰

Holyoke Officer Roger Gaudreau was patrolling in a marked cruiser at Nick Cosmos Way and Appleton Street in Holyoke at 3:30 A.M. that Sunday morning. He had not been present at rollcall but had the information about the Buick separately from Sergeant Lawrence Cournoyer, who had conducted the rollcall. Gaudreau came upon the Buick and a light-colored Datsun parked about a block from the Newton Street address. Although it was raining heavily, eight or so people were standing outside the vehicles. Upon noticing the cruiser, they entered the cars, which took off, the Datsun closely following the Buick. Alerted to gang activity, Gaudreau radioed for backup and followed the cars on their rather circuitous route. The Datsun did not turn on headlights. The Buick at one point swerved and its left-side wheels crossed over the yellow double center line. When Officers Patrick Brown and Christopher Dunn appeared as backup and joined in separate marked cruisers, Gaudreau activated his blue overhead lights. The Datsun pulled to the side of the road. Dunn stayed with Gaudreau. Brown continued to follow the Buick. (Dunn had attended roll call; Brown had spoken with Cournoyer.)

At the Datsun, Gaudreau approached the driver. He was unable to produce a license on request. On the officer's instructions, the driver left the car to stand at the rear with Officer Dunn. While speaking to the driver, Gaudreau noticed that the front passenger was "shifting around," his hands moving "all over in the interior"; he disregarded Gaudreau's order to keep his hands on the dashboard. Gaudreau "had no idea if he was trying to hide a weapon [or] pull a weapon out." Nor could Gaudreau, from outside the car, see into the back seat; the side windows were tinted. Worried for his safety (as he testified), Gaudreau drew out his gun and told the passenger to back out with his hands up; he then patted the man down for weapons, but found none. Dunn asked Gaudreau whether anyone was left in the car; Gaudreau said he didn't know. Dunn then opened the driver's side door, saw two men in the back seat, and ordered them to get out with their hands up. As one pushed the driver's seat forward (the Datsun had only two doors), Officer Sherwin, a new arrival, standing by Dunn, yelled, "Gun." Dunn saw the woodstock back end and part of the barrel of a shotgun protruding from under the driver's seat. Dunn removed the shotgun and found both barrels loaded. All occupants of the car were placed under arrest. The driver was Juan Irizarry, the other occupants Cortes,...