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Commonwealth v. Stack, 49 Mass.App.Ct.
227 (2000)
Appeals Court of Massachusetts, Hampden.
No. 97‑P‑2075.
Argued
Decided
James R. Knudsen,
Thomas C. Foley for Richard Gonzalez.
Susan Murphy,
James Hammerschmith,
Committee for Public Counsel Services,
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, §
1 (FN2);
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.
[49
Mass.App.Ct. 229]
A. The evidence. (FN3)
(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
(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 [49 Mass.App.Ct. 230]
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"
(FN6) 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. (FN7)
(4) The following Saturday, April 30, in
early afternoon, Espada[49 Mass.App.Ct. 231] 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. (FN8) 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.
[49
Mass.App.Ct. 232]
(5) (FN9) 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.
(FN10)
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 [49 Mass.App.Ct. 233] 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, Polanco,
and Efrain Rivera.
Officer Brown meanwhile continued his
pursuit of the Buick. He, too, had seen
the Buick swerve across the center line. Within minutes he put on his blue
lights, and the Buick moved to curbside.
With Officer Kevin Thomas (newly arrived; he had attended rollcall)
Brown approached the driver. The driver
said he had a driver's license but did not have it with him; he gave Brown his registration. Brown ordered the driver out of the car,
patted him down (finding nothing), and seated him in the cruiser, intending to
call in for information about the license.
Officer Thomas, dealing with the passenger seated behind the driver,
asked him to step out. Thomas had the
man stand with Sergeant Lawrence Cournoyer (also
arrived) who was at the rear passenger's side with gun drawn. Cournoyer testified
he feared the outbreak of a firefight between his officers and the Buick
riders. While patting down the
passengers, Thomas saw the man remaining in the front seat kicking his feet as
if pushing something under the seat.
Thomas opened the passenger door and told the man to get out, at which
point Thomas saw a gun barrel sticking out from under the front seat. Cournoyer also saw
this. It was a loaded sawed‑off
shotgun. All occupants were
arrested. Ammunition was found during a
search of the car. The driver was Berrios, the front seat passenger Richard Gonzalez, the
rear seat passenger behind the driver Frank Gonzalez.
B.
Issues. (1) Suppression motions (filed by Gonzalez brothers, Cortes). The Gonzalez brothers and Raul Cortes moved
pretrial to deny the Commonwealth the use as evidence of the shotguns and
ammunition taken without warrants. It
was upon the Commonwealth to justify the seizures.
[1][2][3] Police may stop a vehicle where
they have observed a traffic violation, see
Commonwealth v. Bacon, 381 Mass. 642, 644, 411 N.E.2d 772 (1980), here
crossing the line (Buick) and driving with headlights off (Datsun). Then, as each driver failed to produce a [49 Mass.App.Ct.
234] license on demand, in violation
of G.L. c. 90, § 11, creating reason to suspect a
violation of G.L. c. 90, § 10, or § 23, the police
had probable cause to arrest him. See Commonwealth v. Lantigua,
38 Mass.App.Ct. 526, 528, 649 N.E.2d 1129
(1995); G.L.
c. 90, § 21. It will not do to inquire
into possible collateral motives on the part of the police where the violation
or offense is actual, not merely imagined for the occasion. See
Commonwealth v. Santana, 420 Mass. 205, 209, 649 N.E.2d 717 (1995).
[4][5] An exit order to a passenger not
himself seen to commit any violation or offense conforms to the strict
constitutional standard in this Commonwealth (see note 11 infra ) if it responded to the reasonable apprehensions of the
police about their own safety (or that of others). The police, it is said, may take "reasonable
precautions for their own protection.
Such precautions may include ordering occupants out of a car for
questioning. Pennsylvania v. Mimms,
434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331
(1977). They may also include a search
extending into the interior of an automobile, but they are 'confined to what is
minimally necessary to learn whether the suspect is armed and to disarm him
once the weapon is discovered.' " Commonwealth v. Robbins, 407 Mass. 147,
151, 552 N.E.2d 77 (1990), quoting from
Commonwealth v. Ferrara, 376 Mass. 502, 505, 381 N.E.2d 141 (1978). So we ask "whether a reasonably prudent
man in the policeman's position would be warranted in the belief that the
safety of the police or that of other persons was in danger," Commonwealth v. Gonsalves,
429 Mass. 658, 661‑662, 711 N.E.2d 108 (1999), quoting from Commonwealth v. Santana, 420 Mass. at
212‑213, 649 N.E.2d 717, considering the "specific and articulable facts and the specific reasonable inferences
which follow from such facts in light of the officer's experience."
Commonwealth v. Williams, 46 Mass.App.Ct.
181, 184, 704 N.E.2d 212 (1999), quoting from Commonwealth v. King, 389 Mass. 233, 243, 449 N.E.2d 1217
(1983). (FN11)
[6] In the present case, officers had
been informed that a given car would be transporting armed gang members to
Holyoke. A car matching the description
(along with a Datsun) was found idling in a high
crime area in pouring rain at 3:30 A.M. with a group milling about (but
dispersing at sight of a marked cruiser). [49 Mass.App.Ct.
235] Then we have furtive movements
of persons suggesting attempts to conceal weapons. The persons (if any) in backseats could not
be readily observed. The experienced
supervising officer saw the scene as instinct with a prospect of armed
combat. The ordering out of passengers
and follow‑up seem well within the range of lawful self‑protective
activity by the police.
[7][8] The "plain view" rule
empowered the police to seize the loaded shotguns at sight. See
Commonwealth v. Santana, 420 Mass. at 211, 649 N.E.2d 717. There was probable cause to search the Buick
for further contraband after the flushing out of the shotgun; thus the ammunition was properly seized. See
Commonwealth v. Bakoian, 412 Mass. 295, 304‑305,
588 N.E.2d 667 (1992).
[9] (2) Jury instructions (all appellants). There was no objection by any of the
defendants to the judge's instructions, but they now claim the judge erred in
failing to instruct in detail about the particulars of the crime of armed
assault in a dwelling (the so‑called "target" offense). The judge charged in full about the crime of
conspiracy‑‑there is no complaint about this; then he read the then current statutory
definition of the armed assault offense as follows: "Whoever, being armed with a dangerous
weapon, enters a dwelling house and while therein assaults another with intent
to commit a felony shall be punished by imprisonment...." G.L. c. 265, § 18A,
as appearing in St.1969, c. 473. The
defendants would have the judge explicate each term of this statutory
statement, although the defendants were indicted for conspiracy, not for the
armed assault proper (and in fact were intercepted before they could commit the
latter offense). What the judge was
bound to do was to inform the jury of the nature or substance of the object of
the conspiracy. This he did by the
statutory reference which in the present case conveyed by commonplace language
a sufficient picture to the jury, against which the jury could measure the
actual articulation by the conspirators of the purpose of the conspiracy to
"go in and assault them," and so forth.
[10] To require specific analysis of the
particular terms of § 18A would be rather incongruous with the propositions
that the crime of conspiracy is distinct from the target offense envisaged, see Commonwealth v. D'Amour,
428 Mass. 725, 747, 704 N.E.2d 1166 (1999), and is complete when an agreement
for a criminal purpose, express or tacit, is formed, although the details of
the agreement have not been worked out,
Commonwealth v. Dellinger, 10 Mass.App.Ct. 549,
556, 409 N.E.2d 1337 (1980), S. C.,
383 Mass. 780, 422 N.E.2d 1346 1981)[49
Mass.App.Ct. 236] (rev'd on other
grounds). Nor need all the conspirators
be equally cognizant of every part of what has been agreed or what is afoot,
see Attorney Gen. v. Tufts, 239 Mass.
458, 493, 132 N.E. 322 (1921). As noted
in United States v. Williams, 809
F.2d 75, 86 (1st Cir.1986), cert. denied, 482 U.S. 906, 107 S.Ct.
2484, 96 L.Ed.2d 377 (1987), the prosecution need only prove that a defendant
charged as a conspirator knew the "essential features" and
"general aims" of the venture.
The commonsensical view is that "[i]f the offense which was the object of the conspiracy were
some technical or unusually complex offense of which the trier
of
fact has no general impression, a suitable instruction explaining
such an offense would be mandatory," but not so where "[t]he jury as
ordinary laymen have a general knowledge of what constitutes armed robbery [the
target offense involved in the case] which is self‑defining."
People v. Ambrose, 28 Ill.App.3d 627, 632‑633, 329 N.E.2d 11
(1975). See People v. Carey, 94 Ill.App.3d 631, 636‑637, 50 Ill.Dec. 125, 418 N.E.2d 1119 (1981). Compare:
"The judge was correct in emphasizing the criminal intent required
for conspiracy and describing the elements of [the target offenses] in more
general terms." Commonwealth v. Burke, 20 Mass.App.Ct. 489, 508, 481 N.E.2d 494 (1985). The
Dellinger case, 10 Mass.App.Ct. at 558, 409
N.E.2d 1337, S. C., 383 Mass. at 783‑785,
422 N.E.2d 1346, cited by defendants Stack and the Gonzalez brothers, is not
inconsistent. (FN12)
[11] If it be assumed that the judge
erred in not going into the particulars of the target crime, then‑‑since
the defendants did not object to the instruction as given‑‑the
question would be whether the error created a substantial risk of a miscarriage
of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563‑564, 227 N.E.2d
3 (1967). The evidence of a conspiracy
to commit an armed assault was strong so there was no injustice in the
convictions on the merits. So, too, it
is hard to imagine that the jury verdicts might have been different if the
instruction were more punctilious.
(3)
Sufficiency of evidence (Stack and Cortes).
The evidence of the guilt of the defendants in this case was powerful
overall.
[49 Mass.App.Ct. 237] The defendant Stack, however, while making no claim that the
evidence of her participation in the murder conspiracy as charged was
insufficient, does make that claim in respect to the armed assault
conspiracy. (FN13) Cortes also argues that his motion for a
required finding on that charge should have been allowed.
[12][13] a. Stack does not dispute that a
conspiracy was formed to commit an armed assault at 118 Newton Street and she
was aware of the fact; she protests that
she did not share or participate in this conspiracy. It was upon the Commonwealth to show there
was "at least a slight, though willing and knowing connection"
between Stack and the conspiracy‑‑the slight connection, however,
to be proved beyond a reasonable doubt. United States v. Marsh, 747 F.2d 7, 13,
appeal after remand, 747 F.2d 14 (1st Cir.1984). See
Commonwealth v. Sylvester, 400 Mass. 334, 339‑340, 509 N.E.2d 275
(1987). "[T]he line that separates
mere knowledge of the fact that a conspiracy exists from participation in the
conspiracy is often vague and uncertain.
It is within the province of the jury to determine from the evidence
whether a particular defendant had crossed that line." Commonwealth v. Beneficial Fin.
Co., 360 Mass. 188, 250, 275 N.E.2d 33 (1971), cert. denied sub nom. Farrell v. Massachusetts, 407 U.S. 910,
92 S.Ct. 2433, 32 L.Ed.2d 683, and 407 U.S. 914, 92 S.Ct. 2434, 32 L.Ed.2d 689 (1972). The Commonwealth could prove Stack's
participation by showing she communicated to other conspirators her willingness
to join in the conspiracy. Commonwealth v. Beneficial Fin. Co., 360
Mass. at 249‑250, 275 N.E.2d 33.
She need not have performed an overt act, id. at 250, 275 N.E.2d 33, nor need she have
intended to participate "directly and personally" in the substantive
crime.
Commonwealth v. Nighelli, 13 Mass.App.Ct. 590, 595, 435 N.E.2d 1058 (1982).
Espada
testified that at the April 30 meeting the Crown members discussed the tasks to
be carried out that night, the plan to hit the three locations as well as to
murder Mikey.
As the meeting ended all Crown members shook hands. We think Stack's commanding voice in the
murder conspiracy is not without inferential significance in respect to her
relation to the other agreement (cf. note 13 above). Also probative are the facts that Stack
figured as president of the Latin Queens, served as a host of the first
planning session, and attended the second
[49 Mass.App.Ct. 238] from which the conspiracies were hatched. (Contrast the facts in Commonwealth v. Shapiro, 10 Mass.App.Ct.
678, 682, 411 N.E.2d 1332 [1980], where, although the defendant knew of the
conspiracy, she "d[id]n't really know"
other conspirators, was absent from planning sessions, and was not referred to
as a collaborator by the others.) There
could be a conclusion of joinder on Stack's part
without testimony that she spoke distinct words to that effect. See
Commonwealth v. Favulli, 352 Mass. 95, 113, 224
N.E.2d 422 (1967).
[14] b. Stack and Cortes argue there was
no proof the Newton address was a "dwelling," and, they say, if the
object of a conspiracy does not satisfy the terms of the target statute, the
conspiracy must fail. Without entering
into a discussion of the validity of the attempted generalization, we may say,
first, there was evidence that the Newton Street address was a dwelling, (FN14)
but, second, it would not matter what the fact was, if the conspirators
believed the place was a dwelling to which a mission was being directed and
joined hands on this basis. See Commonwealth v. Cantres,
405 Mass. 238, 243‑244, 540 N.E.2d 149 (1989).
[15] c. A related matter. Espada gave
testimony grievously hurtful to Stack on the third day of trial. The fourth day was to come after a three‑day
weekend. On that day Stack failed to
return to court (and never reappeared).
The prosecutor informed the judge that officers had heard on the street
that Stack was planning to abscond. The
judge defaulted Stack, issued a warrant for her arrest, and instructed the jury
to draw no inferences from her absence.
The prosecutor later told the judge that
the police, despite efforts, had failed to locate Stack, but the judge would
not let him present evidence of the search to the jury. The defense moved for a hearing on the
question whether Stack's absence was voluntary;
the motion was denied. In his
final instructions, the judge told the jury, if they found Stack had wilfully fled from the prosecution, they might consider
that as consciousness of guilt, but were not to convict Stack on that basis
alone. He added, "[Y]ou may not consider such even as one of the factors tending
to prove" Stack's guilt; there were
numerous reasons [49 Mass.App.Ct. 239]
why innocent persons might flee;
innocent people sometimes have feelings of guilt. However, said the judge, if the jury believed
Stack voluntarily fled from prosecution they might infer she was conscious of
guilt and use that evidence together with other evidence in determining whether
she was guilty. Compare Commonwealth v. Toney, 385 Mass. 575,
585, 433 N.E.2d 425 (1982). Stack
objected to this instruction and moved for a mistrial; the motion was denied.
In
Commonwealth v. Kane, 19 Mass.App.Ct. 129, 135,
472 N.E.2d 1343 (1984), we disapproved of the kind of casual procedure followed by the trial judge
(aggravated here by a somewhat self‑contradictory instruction) and
advised a vigorous effort to find an absconding defendant and some formality in
presenting the evidence about her disappearance, if the jury were to be
permitted to make any use of the circumstance of flight. Although the judge's mishandling in Kane perhaps went further than that in
the present case, (FN15) we will assume there was error here. Stack's conviction of the murder conspiracy
is so solidly supported that the error is easily held harmless in relation to
it. The situation is not so clear as to
her conviction of the other conspiracy, but, in our view, a like result is
justified. (Sentences on the two charges
run concurrently.) (FN16)
[16][17] (4) Voir dire issues. a. Individual voir dire about antigang prejudice (Gonzalez brothers). By the second paragraph of G.L. c. 234, § 28, a judge, upon request, must examine
prospective jurors individually where matters extraneous to the merits might
impair their judgment. See Mass.R.Crim.P. 20(b)(2), 378 Mass. 890 (1979);
Commonwealth v. Grice, 410 Mass. 586, 588, 574 N.E.2d 367
(1991). In certain cases, generally
those involving interracial sexual or violent crimes, it is settled as matter
of law that the risk of partiality exists and individual examination is
required. (FN17) The mandatory classes do not extend to the present
case. Compare [49 Mass.App.Ct. 240] Commonwealth v. Burgos,
36 Mass.App.Ct. 903, 904, 627 N.E.2d 471 (1994). Thus the defendants were put to a
demonstration that there was a "substantial risk that the case would be
decided in whole or in part on the basis of extraneous issues."
Commonwealth v. Grice, 410 Mass. at 588, 574 N.E.2d 367, quoting
from Commonwealth v. Mahoney, 406
Mass. 843, 850‑851, 550 N.E.2d 1380 (1990). No such demonstration was forthcoming and the
judge's exercise of discretion stands.
Still, the judge took measures against possible prejudice. He told the panel evidence would appear that
the defendants were members of the Latin Kings gang and he mentioned jurors'
possible exposure to news reports about the case. Seventeen jurors confessed in answer to a
question addressed to the venire that they held an antigang
bias, and these were excused after short interviews at sidebar. In sundry decisions, similar procedures were
thought adequate to secure the objectives of the statute, (FN18) and the
defendants were entitled to no more.
[18] b. Special voir dire questions (Gonzalez
brothers). Under the first paragraph of G.L. c. 234, § 28, a judge is required to ask the panel‑‑usually
done by collective interrogation (FN19)‑‑certain stated questions
including the question whether any juror is sensible of bias or prejudice. The present judge complied. It was not error for him to decline to
ask two special questions formulated by the defendant Frank Gonzalez to be put
collectively: "Do you have any
prejudice or bias when it comes to people of color?" and "Will you in
any way be influenced, either pro or con, by the race of the defendant?" Commonwealth
v. Lumley, 367 Mass. 213, 216, 327 N.E.2d
683 (1975), [49 Mass.App.Ct.
241] states that "[i]n the ordinary case, inquiries beyond the statutory
questions, which raise generally the issue of bias, rest in the sound
discretion of the trial judge." As
various matters of race or ethnicity are comprehended in the individual voir dire questions of the second paragraph of § 28, it is
hard to suppose that a judge could abuse discretion in rejecting special
questions on these subjects for collective use under the first paragraph. Compare Commonwealth v. Pearce, 43 Mass.App.Ct.
78, 85, 681 N.E.2d 296 (1997), S. C.,
427 Mass. 642, 649, 695 N.E.2d 1059 (1998) (rev'd on
other grounds).
[19][20] (5) Other issues. a. Ineffective
assistance (Gonzalez brothers). None
of the counsel for individual defendants moved for a change of venue on grounds
of hurtful pretrial publicity, and on this account there is now a claim that
counsel for Richard and Frank Gonzalez rendered ineffective assistance. In the way of showing behavior by the press,
the defendants point to an article about this case in the Springfield (Sunday)
Republican, (FN20) dated about a month before trial; also to articles in Boston and Hartford
newspapers about the Latin Kings in general, published some eight months to two
years before trial (and, because of their dates and nature, now the subject
here of a Commonwealth motion to strike, which we shall deny). All this is weak tea in any attempted
demonstration that the defendants were deprived of a fair trial by being tried
in the neighborhood of the alleged crimes.
It should be recalled that the fact of some adverse publicity does not
invite a change of venue; this is
allowed "with great caution and only after a solid foundation of fact has
been first established,"
Commonwealth v. Colon‑Cruz, 408 Mass. 533, 551, 562 N.E.2d 797
(1990), quoting from Commonwealth v.
Smith, 357 Mass. 168, 173, 258 N.E.2d 13 (1970), an appraisal resting in
the judge's considerable discretion. Commonwealth v. Colon‑Cruz, supra. On the whole, it is not made to appear that
the motion, had it been made, would have stood much chance of being
granted; thus counsel cannot be faulted
for failing to make it. See Commonwealth v. Conceicao,
388 Mass. 255, 264, 446 N.E.2d 383 (1983).
In fact, there was attention to the
question of publicity. The judge asked
the venire collectively whether they had read in newspapers or heard on radio
or television anything about this case, and he mentioned specifically the
Sunday Springfield Republican Union of "a few weeks ago." Six jurors responded; none of them was seated. Also to be considered here is the judge's
questioning about prejudice which, as already noted, resulted in excusing
seventeen jurors for their antigang views.
[21] b. Espada outburst (Gonzalez brothers and
Cortes). Cross‑examining Espada, counsel elicited from her that the gang had a
"manifesto" calling for immediate expulsion of any member caught
dealing drugs. But Espada
added, "That is the front, what they show you. But exactly what the Latin Kings are are a [49 Mass.App.Ct. 242]
bunch of drug"‑‑here there was objection, which the court
overruled, and Espada went on to say‑‑"[T]he
Latin Kings are a bunch of drug dealers, murderers.... They are not an organization, they are a
gang, and I am here to testify to that."
The judge might have reacted at once to the impending diatribe‑‑and
counsel might have moved to strike. The
outburst was unfortunate and may be thought of as testimony out of turn about
the bad character of the gang and thus of its members,
particularly the defendants. See Commonwealth v. Montanino,
27 Mass.App.Ct. 130, 136, 535 N.E.2d 617 (1989). (FN21)
If the judge was at fault, the effect was diminished by the fact that Espada had given testimony about drug distribution and
murder as well, instigated by the gang, to which the questioned words added
little but emotion. In the atmosphere of
this extended trial, the short episode could count for little. We add that the judge in final instructions
said that being a member of or associated with a gang was not itself a crime
and the jury must consider the facts as to the individual defendants.
Judgments
affirmed.
(FN1.) One indictment against Stack, three
indictments against Richard Gonzalez, three indictments against Frank Gonzalez,
and two indictments against Raul Cortes, Jr.
(FN2.) Of other indicted defendants, not
involved in this appeal, Juan Irizarry and Virgilio Berrios entered guilty pleas; Victor Polanco was
convicted of conspiracy to commit armed assault in a dwelling and possession of
a sawed‑off shotgun and ammunition.
(FN3.) Principal witness for the Commonwealth
was Iris Espada, a confidential informant, who spoke
mainly to the formation of the conspiracies.
State Trooper Griffin testified to the criminal investigation and to his
collaboration with Espada. Holyoke police officers Gaudreau,
Dunn, Brown, Thomas, and Cournoyer testified chiefly
about the apprehension of the defendants (other than Stack). Philip Langton
testified as a ballistics expert.
The
defendants did not offer evidence.
(FN4.) As to Espada's
possible motives, she was not charged with possession of the cocaine; an officer testified the cocaine found was
only a trace and did not warrant prosecution.
At the time, an assault charge was pending against Espada,
and assault and battery charges were pending in Juvenile Court against her
daughter; these charges remained pending
at the time of trial of the present case.
Espada testified she agreed to help the police not for fear
of prosecution but to put a stop to gang violence in the community
(FN5.) In joining, Espada
filled out a membership application. She
turned this over to the troopers together with the earlier applications by Raul
Cortes and Frank Gonzalez.
(FN6.) "Tumbar",
the verb, translates as "to knock down."
(FN7.) There was no substance in Cortes's objection to the admission of Espada's
testimony that he was a Crown or to the objection of all defendants to the
admission of the redacted minutes.
(FN8.) The Holyoke address was familiar to Espada because her former brother‑in‑law had
lived there. It is in a high crime area.
(FN9.) The evidence following is drawn from
the hearing on motions to suppress. It
embodies the substance of the motion judge's findings denying the motions, to
which is added some particulars from the record.
(FN10.) Rollcall
information, it seems, was based on what Troopers Griffin and Michel learned
from Espada following the afternoon meeting, rather
than on Michel's telephone conversation with Espada
late that night.
(FN11.) We do not pause to describe how far
Fourth Amendment rulings of the Supreme Court of the United States allow more
leeway to police in ordering out from cars than do the rulings of the Supreme
Judicial Court resting on art. 14 of our Declaration of Rights. See
Pennsylvania v. Mimms, 434 U.S. at 111, 98 S.Ct. 330, 54 L.Ed.2d 331; Maryland v. Wilson, 519
U.S. 408, 414‑415, 117 S.Ct. 882, 137 L.Ed.2d
41 (1997); Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 488, 142 L.Ed.2d 492 (1998); Commonwealth v. Gonsalves, 429 Mass. at 660 n. 2, 662‑663, 711
N.E.2d 108.
(FN12.) Cases can be found containing
expressions that seem to require full instructions on the object substantive
crimes, but these can be explained as consistent with Ambrose or as having been let fall without distinct attention to
the issue. See United States v. Pincourt, 159 F.2d 917,
919‑920 (3d Cir.1947); People v. Cortez, 18 Cal.4th 1223, 1238‑1239,
77 Cal.Rptr.2d 733, 960 P.2d 537 (1998); State v. Benavidez, 127 N.M. 206, 979
P.2d 251 (Ct.App.1999); Commonwealth v. Young, 474 Pa. 96, 99‑100,
376 A.2d 990 (1977).
(FN13.) Although the indictments were properly
framed, there is a measure of unreality in the suggestion of a sharp line of
differentiation between the two compacts.
It is more nearly conforming to the facts to say there was one
agreement, to be carried out to substantive ends by the commission of dual
crimes.
(FN14.) As noted, note 8, supra, Espada testified her former
brother‑in‑law had lived there.
Officer Gaudreau testified the address was a
"tenement building with[ ] three or four floors."
In
his charge the judge spoke of the "home" or "apartment" on
Newton Street. The defendants did not
object and the references appear casual, not intended as any conclusion by the
judge.
(FN15.)
For example, in Kane the prosecutor
made a point of reminding the jury of the absent defendant, the vacant chair. Id.
at 136, 472 N.E.2d 1343.
(FN16.) In the foregoing discussion, for the
benefit of the defense, we make nothing of the fact that the Supreme Judicial
Court has left open the question whether a defendant's failure to appear for
trial on an assigned date, standing alone, may be taken as evidence of
consciousness of guilt. See Commonwealth v. Hightower, 400 Mass.
267, 269, 508 N.E.2d 850 (1987). See
also Commonwealth v. Gonzalez, 42 Mass.App.Ct. 235, 240 n. 5, 675 N.E.2d 1177 (1997).
(FN17.) See
Commonwealth v. Sanders, 383 Mass. 637, 640‑641, 421 N.E.2d 436
(1981);
Commonwealth v. Young, 401 Mass. 390, 398, 517 N.E.2d 130 (1987);
Commonwealth v. Stephens, 15 Mass.App.Ct.
461, 463, 446 N.E.2d 410 (1983).
(FN18.)
Commonwealth v. Estremera, 383 Mass. 382, 390‑391,
419 N.E.2d 835 (1981). Commonwealth v. Hennessey, 17 Mass.App.Ct. 160, 166‑167, 456 N.E.2d 1146 (1983).
Commonwealth v. Bodden, 24 Mass.App.Ct. 135, 140, 506 N.E.2d 1171 (1987).
Commonwealth v. Tatro, 42 Mass.App.Ct. 918, 919‑920, 676 N.E.2d 843 (1997).
(FN19.) See
Commonwealth v. Jones, 9 Mass.App.Ct. 103, 114,
399 N.E.2d 1087 (1980), S.C., 382
Mass. 387, 416 N.E.2d 502 (1981) (rev'd on other
grounds);
Commonwealth v. Bodden, 24 Mass.App.Ct. at 140, 506 N.E.2d 1171.
(FN20.) The article was actually tendered
during argument on the motion based on alleged bias against gangs.
(FN21.) There was a similar contretemps when,
during redirect examination, Espada said she had
falsified information on her membership application about locations of members
of her family because the gang might sometime try to vent retribution upon
them.