Commonwealth v. Rosa (Lawyers Weekly No. 10-089-14)

BOTSFORD, J.  A Superior Court jury found the defendant, Daniel Rosa, guilty of murder in the first degree on a theory of deliberate premeditation and of possession of a firearm without a license.  The defendant appeals, arguing that:  (1) the trial judge erred in admitting evidence of bullet shell casings and live ammunition because the Commonwealth failed to prove that the defendant constructively possessed these items; (2) it was unduly prejudicial and violative of due process to admit the recording of a jailhouse telephone call made by the defendant in which he used street jargon and offensive language; (3) the defendant’s constitutional rights were violated by the monitoring of his telephone calls from jail and a jail officer’s sending to law enforcement authorities information derived from the calls; (4) the evidence was insufficient to prove the defendant guilty of murder in the first degree on a joint venture theory; and (5) the trial judge erred in failing to provide a special verdict slip and special jury instruction requiring the jury to determine separately whether the defendant was guilty of murder in the first degree as a principal or as an accomplice.  We affirm the defendant’s convictions and decline to grant relief under G. L. c. 278, § 33E.

1.  Background.  We recite the facts as the jury could have found them at trial, reserving certain details for later discussion.  On January 26, 2011, at approximately noon, the victim, David Acevedo, was killed by a single gunshot wound to the back.  The shooting occurred on Riverton Road in Springfield, near the home of Eric Caraballo, Sr., a mutual friend of the victim’s and the defendant’s.

Earlier that morning, at 9:30 or 10 A.M., the defendant had gone to his mother’s home in Springfield to visit his daughter and to meet with a friend, Marcus Dixon.  A dark-colored, two-door Honda automobile belonging to Dixon was parked there because the defendant was “holding” the car for Dixon.  The defendant and Dixon left together in the Honda shortly after they both had arrived.  Soon thereafter, the defendant went to Caraballo’s house.  At some point the victim also arrived at Caraballo’s house and confronted the defendant about money that the defendant purportedly owed him.  A heated verbal exchange ensued and the defendant and the victim began to fight, but Caraballo intervened.  The defendant and the victim went outside to continue fighting while Caraballo remained inside.  Several minutes later, the victim returned inside with a ripped, bloodied shirt, but he appeared otherwise unhurt.  The defendant did not return inside.

Between approximately 10:30 and 11:30 A.M. the defendant made and received a series of telephone calls to and from Dixon and another friend, Jerell Brunson.  Just before noon, the defendant telephoned Caraballo on his cellular telephone asking for the victim to meet him outside of Caraballo’s house again.  The victim and Caraballo went outside and they exchanged additional telephone calls with the defendant.  Snow banks obscured their view of the defendant, but when he appeared, the victim went to meet the defendant near a stop sign at the corner of Riverton Road and Denver Street; Caraballo remained in his driveway.  Moments later, Brunson and Dixon began walking down from the top of the hill on Denver Street toward Riverton Road; Dixon’s Honda was parked near the top of the hill.  As they walked, Brunson and Dixon began shooting in Caraballo’s direction.  Bullets struck an apartment building across the street from Caraballo’s house as well as a car parked in front of that building.  The victim turned away from the defendant and ran across the street toward the apartment building, yelling, “Duck!”  Caraballo dropped to the ground and lay on his stomach behind the snow banks, pretending to be shot.  The defendant took several steps toward the victim, who was running away.  Caraballo saw the defendant holding a silver gun covered by a blue bandanna, one arm extended toward the victim.  He heard “loud booms” peal from the defendant’s hand.  A single bullet struck the victim’s back at a straight angle, injuring his spinal cord and causing cardiac arrest.  The gunfire ceased and the defendant turned to Caraballo and said, “Remember that I love you.”

The defendant, Brunson, and Dixon retreated quickly up Denver Street toward the Honda.  A man who lived on Denver Street, Gary O’Neal, observed a light-skinned man and a dark-skinned man, both holding revolvers, climb into the Honda.  Of the three men (the defendant, Brunson, and Dixon), only the defendant had light skin.  The three drove in the Honda to Brunson’s house at 39 Slater Avenue, approximately one mile away, where they parted ways.

After being shot, the victim lay on the ground bleeding, and died before the paramedics arrived some minutes later.  O’Neal, the Denver Street resident, had observed the rear license plate of the Honda he saw two men climbing into, and he wrote the number in the snow on his front porch.  His recollection was close to the rear license plate number on the dark, two-door Honda that police officers later discovered at Brunson’s house.  Later that day, O’Neal identified the defendant from a photographic array provided by the police, stating that he was sixty per cent certain it was the man he saw leaving the crime scene holding a revolver.

Police investigators found two of three projectiles that struck the apartment building across the street from Caraballo’s house.  The projectiles included one .44 caliber bullet and another scrap of lead that was likely the core of a second .44 caliber bullet.  The police were unable to recover the bullets that struck the car parked in front of the apartment building, or the bullet that killed the victim.  The investigators did not find any shell casings at the crime scene, a fact suggesting that the gunmen used revolvers.

Within hours of the shooting, police encountered Dixon as he approached a parked car outside the defendant’s mother’s residence.  After ascertaining Dixon’s identity, the officers detained him for questioning.  Dixon spoke with the officers at the police station, and then drove with them to locations where he had been during and after the shooting, including 39 Slater Avenue, Brunson’s house.  At that point, two police officers secured the premises of 39 Slater Avenue, leading to the discovery of the Honda parked in back, while other officers obtained a search warrant for the interior of the house.  In the basement area where Brunson stayed, police discovered four casings for .357 caliber bullets and one casing for a .38 caliber bullet in a plastic storage unit next to Brunson’s bed.  They also found two live .44 caliber bullets in a clay vase on a shelving unit, as well as the defendant’s driver’s license stashed in a narrow slit in the underside of the box spring in the bed.  Analysis of the shell casings revealed that all the .357 caliber bullet casings were fired from the same weapon, which never has been recovered.  At trial, two witnesses testified to seeing the defendant with a large, silver revolver during the months prior to the murder.  Although the defendant denied possessing such a firearm, he admitted to having previously a .22 caliber gun that he and a friend referred to as a “.350.“

In his trial testimony, the defendant explained that he had met up with both Dixon and Brunson at the defendant’s mother’s house in the morning of January 26, 2011, before going to Caraballo’s house.  Just before noon, Dixon drove Brunson and the defendant in the Honda directly from the defendant’s mother’s house to Caraballo’s neighborhood.  The defendant had planned to purchase “crack” cocaine from the victim so that Dixon could resell it.  The defendant had met the victim near the stop sign at the corner of Denver Street and Riverton Road to exchange money for the drugs, which the victim passed to him in a blue cloth, while Caraballo stood in his driveway.  Suddenly, Brunson and Dixon began shooting from the top of Denver Street, surprising the defendant because he was unaware that his friends had guns.  Dixon walked nearly all of the way down the hill and shot the victim.  After the shooting, the defendant left the crime scene with Brunson and Dixon in the Honda.  The defendant stated that he did not have a firearm with him at any time during the shooting incident.

The Commonwealth proceeded against the defendant on the alternative theories of principal and joint venture liability.

2.  Discussion.  a.  Shell casings, bullets, and the defendant’s driver’s license.  The defendant asserts that the trial judge erred in denying his motion in limine to exclude from evidence the bullet casings, live ammunition, and the defendant’s driver’s license found by the police hours after the shooting.  The defendant argues there was no evidence at trial that he lived in, used, or ever was present in Brunson’s bedroom, and he maintains that the record fails to show he had knowledge that any of the items were there, much less the ability and intent to exercise dominion and control over them.  In the defendant’s view, the presence of his license in the box spring on the bed, with no indication of who placed it there or when, was an inadequate basis on which to base a claim of constructive possession of the ammunition or even of the license itself.

We review a judge’s evidentiary rulings on a motion in limine for abuse of discretion.  Commonwealth v. Spencer, 465 Mass. 32, 48 (2013), quoting Commonwealth v. Arrington, 455 Mass. 437, 441 n.6 (2009).  “Whether proffered ‘evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge’s broad discretion and are not disturbed absent palpable error.’”  Spencer, supra, quoting Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010).

The trial judge did not abuse his discretion by admitting this evidence.  The defendant emphasizes the absence of evidence connecting him individually to the casings and live ammunition.  He is correct that there was no evidence of his constructive possession of these items, but as the Commonwealth points out, the sufficiency of evidence to support an inference of constructive possession is not the issue, because the ballistics and identification evidence was not being offered to prove a crime for which possession is an element.  Rather, the question was whether the evidence had a rational tendency to prove the defendant’s participation in the victim’s murder.  See Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989), quoting Commonwealth v. Chretien, 383 Mass. 123, 136 (1981).  The Commonwealth was proceeding at least in part on a joint venture theory in this case.  The shell casings, ammunition, and identification card were relevant because these items had a tendency to make more probable the existence of a joint venture among the defendant, Dixon, and Brunson to commit the crime.  See Commonwealth v. Arroyo, 442 Mass. 135, 144 (2004) (defining relevant evidence).  See also Commonwealth v. Pytou Heang, 458 Mass. 827, 851 (2011).  Police officers discovered the items in Brunson’s house reasonably close in time to the shooting incident; they also located at the same address the Honda in which the three perpetrators were seen leaving the scene of the shooting.  In addition, the jury could infer that the casings and live rounds found in Brunson’s bedroom were connected to the guns used by the perpetrators of the crime, or at a minimum that this evidence tended to show that at least one of the perpetrators — Brunson — had access to the “means of committing the crime.”  See Commonwealth v. McGee, 467 Mass. 141, 156 (2014), quoting Commonwealth v. Barbosa, 463 Mass. 116, 122 (2012).

Together, the ballistics evidence and driver’s license challenged by the defendant permitted the inference that these items were hidden at Brunson’s house in furtherance of the alleged joint venture between the defendant and his two companions to kill the victim.  The judge’s decision to admit these items constituted an evidentiary ruling well within the permissible scope of his discretion.  The defendant’s claim fails.

b.  Recording of detainee telephone call.  The defendant challenges on two separate grounds the admission in evidence of portions of a recorded telephone call that he placed on February 15, 2011, while being held at the Hampden County house of correction (jail).  He argues first that the recording was far more prejudicial than probative because (a) much of the conversation was conducted in subculture slang that could not be understood by a lay jury without explanatory expert testimony; and (b) the conversation was replete with racial epithets and curse words that painted him as a person of bad character in the minds of the jurors.  His second argument is that the jail’s monitoring and recording of the call, and its transmittal of the recording to law enforcement authorities, violated his rights under the First and Fourth Amendments to the United States Constitution.

i.  Prejudice.  The jail recorded the defendant’s telephone call while he was being held in pretrial custody.  During the call, the defendant spoke with a man identified only as “Blue.”  The conversation covered a range of topics, including the events surrounding the shooting and killing of the victim on January 26, 2011, the people who were present during the shooting incident, and a general discussion about guns.  Before trial, the Commonwealth filed a motion in limine to admit the recording of the telephone call, and the defendant filed a motion in limine to exclude it.  The judge heard arguments on the motions before listening to the recording, and then he heard additional arguments.  The judge admitted the recording but redacted a number of portions that he deemed prejudicial or irrelevant, including references to attorney-client discussions and statements implicating gang-related activity.  The judge admitted the redacted recording as a trial exhibit, but he did not admit a transcript of the telephone call in evidence.  The court provided a set of headphones to each juror to listen to the recording during trial.  The admitted portions of the recording totaled approximately one-half of the thirty-minute telephone call.

The defendant’s objection to admission of the telephone call recording was preserved, and we review generally for prejudicial error.  See Commonwealth v. Gambora, 457 Mass. 715, 723-724 (2010), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994) (review for prejudicial error requires court to determine whether claimed error “was nonprejudicial in the sense that we are sure ‘that the error did not influence the jury, or had but very slight effect’”).

As indicated, the defendant contends that expert testimony was required to assist the jury to understand the “street jargon” spoken by the defendant during the telephone call; without an expert, he claims, the evidence of the call was inadmissible.  Expert testimony is useful where speakers engage in coded conversation or speak about a subject using specialized vocabulary.  This is not the case here.  Portions of the recording were (and are) difficult to understand by themselves, but the difficulty arises from the speakers’ enunciation, the quality of the recording, and, most importantly, a lack of context provided during the conversation.  An expert would not have been able to offer contextual information to aid the jury in understanding the conversation.  However, in its case-in-chief the Commonwealth did furnish context and helped to give meaning to the portions of the call the jury heard.  Jurors could be expected to apply their knowledge and understanding of the trial evidence to interpret the meaning of the recorded telephone conversation.  Cf. Commonwealth v. Bundy, 465 Mass. 538, 546-547 (2013) (expert testimony unnecessary on use and operation of video game console where witnesses testified about its operation and Commonwealth also introduced explanatory photographic evidence).  Turning to the claim about the overly prejudicial effect of permitting the jury to hear the language used during the telephone call, there is no question that the defendant’s (as well as Blue’s) use of the word “nigger” (or “nigga”) and curse words was constant.  The defendant argues the jury would find all this language, and the epithet “nigger” in particular, highly offensive, and would conclude from it that the defendant was a bad person, who was more likely to have committed this crime.

It would be difficult to argue that the defendant’s persistent use of profanity during the telephone call was not prejudicial, and the defendant correctly notes the risk that jurors could draw inappropriate conclusions about his propensity toward criminality based on the language.  But the question is not whether admission of the telephone call containing this language was prejudicial; it is rather whether it was unduly prejudicial, or more prejudicial than probative.  See generally Commonwealth v. Rousseau, 465 Mass. 372, 388 (2013), quoting Arroyo, 442 Mass. at 144 (“evidence is admissible unless unduly prejudicial, and, ‘[i]n weighing the probative value of evidence against any prejudicial effect it might have on a jury, we afford trial judges great latitude and discretion, and we uphold a judge’s decision in this area unless it is palpably wrong’”).  We conclude that it was not.  The defendant is most concerned about the use of the word, “nigger.”  As offensive as the word is, when one listens to the recorded conversation, it becomes very clear almost immediately that the defendant, and Blue, were not using the word as a racial epithet or in a pejorative sense, but rather, as the defendant testified, as a term of familiarity, such as “guy,” or “dude.“  And the defendant’s persistent use of curse words, although offensive, was so constant that we think it likely the jury heard the language as a pattern of speech without intended meaning.  On the probative side of the ledger, the substantive contents of the recorded call were directly relevant to the crimes charged.  In particular, the recorded conversation included statements by the defendant about his participation in the shooting incident; supporting the existence of a joint venture among the defendant, Brunson and Dixon; reflecting consciousness of guilt; and supporting his possession of a firearm.  The judge proceeded carefully in redacting portions of the recording that would have had the most prejudicial effect, such as statements that could be interpreted as gang references; redacting all, or even most, of the problematic language would have been impossible because it was so intermingled with everything said.

The weighing of probative value versus prejudicial effect of evidence in the context of a trial is an issue left particularly to the discretion of the trial judge.  See, e.g., Rousseau, 465 Mass. at 388, quoting Arroyo, 442 Mass. at 144; Commonwealth v. Anderson, 445 Mass. 195, 208-209 (2005), quoting Commonwealth v. DeSouza, 420 Mass. 667, 670 (1999).  The judge did not abuse his discretion in admitting the redacted recording of the defendant’s jailhouse call, and there was no error.  See Commonwealth v. Robidoux, 450 Mass. 144, 158-159 (2007).

ii.  Violation of constitutional rights.  The defendant argues that jail officials violated his rights under the First and Fourth Amendments by monitoring and recording his telephone conversation and by forwarding a summary of it to law enforcement officials without any showing of a legitimate penological purpose for doing so.

We disagree.  As the Commonwealth points out, this court’s decisions have made clear that the monitoring and recording of his telephone calls by jail or prison officials does not violate a criminal defendant’s constitutional rights where, as here, the defendant and other participants in the telephone conversation are warned before the call that it will be monitored and recorded.  See Commonwealth v. Fitzpatrick, 463 Mass. 581, 602 (2012); Commonwealth v. Gomes, 459 Mass. 194, 206-207 (2011), and cases cited.  There was evidence here that the monitoring and recording were carried out in accordance with regulations, and our decisions have approved of these types of regulations generally as serving the legitimate penological purpose of advancing the security of prisons.  See Matter of Grand Jury Subpoena, 454 Mass. 685, 690-692 & nn.7, 8 (2009) (Grand Jury Subpoena); Cacicio v. Secretary of Pub. Safety, 422 Mass. 764, 769-770 (1996).

The defendant’s principal point appears to be that although regulations that provide for the monitoring of inmate telephone calls may serve legitimate penological purposes as a general matter, before evidence of a call may be used against a defendant at trial, the government must establish that the monitoring of that particular call was justified as advancing such a legitimate purpose.  The claim fails.  The premise of our decisions upholding and discussing such regulations is that a regulation or rule calling for regular monitoring and recording of all telephone calls made by or to all inmates is an appropriate prophylactic means to implement the penological purpose of security, both within and outside the institution.  See Grand Jury Subpoena, 454 Mass. at 690-691; Cacicio, 422 Mass. at 769-770.  There is no suggestion in any of our cases that it is necessary to make an individualized determination whether the monitoring and recording of a particular inmate call serves a penological purpose; indeed, this concept would be antithetical to the prophylactic purpose of the regulation, because it is at best difficult (and more likely impossible) to identify in advance specific telephone calls that may raise safety and security issues.

c.  Joint venture.  The defendant argues that the evidence was insufficient to find him guilty of murder under a joint venture theory because there was no showing that he knew Brunson and Dixon, his two alleged coventurers, were armed; his related contention is that the trial judge’s instructions to the jury on joint venture erroneously failed to explain that the Commonwealth must prove the defendant knew the coventurers were armed.

We reject the defendant’s claims.  In Commonwealth v. Britt, 465 Mass. 87, 99-100 (2013), this court overruled a line of earlier decisions, beginning with Commonwealth v. Lydon, 413 Mass. 309 (1992), standing for the proposition that where a defendant is tried “[u]nder a theory of joint venture premeditated murder” and the coventurer possessed and used a gun, proof of the defendant’s knowledge that the coventurer was armed is required.  See id. at 312 n.2.  We concluded in Britt that in the case of a crime that does not include possession or use of a dangerous weapon as an element, there is no need to prove the defendant’s knowledge of the presence of the weapon in order to convict on a joint venture theory.  See Britt, supra at 100 (“The Commonwealth should bear the burden of proving only that a joint venturer had knowledge that a member of the joint venture had a weapon where the conviction on a joint venture theory is for a crime that has use or possession of a weapon as an element”).  Rather, what is necessary in such a case is proof that “the defendant knowingly participated in the commission of the crime charged, and that the defendant had or shared the required criminal intent.”  Id. at 100-101, quoting Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009).

We decline to overrule Britt.  Because possession of a weapon is not an element of murder in the first degree committed with deliberate premeditation, there was no need for the Commonwealth to prove that the defendant knew Brunson and Dixon were armed with guns.  Accordingly, the absence of such proof does not itself render insufficient the evidence of the defendant’s participation in a joint venture with one or both of the two men.  Similarly, the judge’s jury instructions, which did not include the element that the defendant knew that one or both of the joint venturers were armed, were not erroneous.

d.  Specific unanimity instruction and special verdict slip.  The defendant argues that due process requires the jury to reach a unanimous determination beyond a reasonable doubt regarding the specific criminal act for which a defendant is convicted, including the elements of accomplice liability.  He contends that a conviction based on a theory of joint venture — i.e., accomplice liability — requires proof of factual elements that are distinct from the requirements of proof based on a theory of principal liability — i.e., the defendant was the shooter.  His rights were abridged, the defendant claims, because there was conflicting evidence about his role as either an accomplice or a principal in the victim’s murder, and the trial judge erred in not giving the jury a specific unanimity instruction and in not providing them with a special verdict slip to clarify the specific grounds of conviction.

The defendant’s argument in substance asks us to reverse our decision in Zanetti, 454 Mass. at 467-468, where we clarified that it was not necessary, in a case tried on a theory of joint venture or accomplice liability, for the jury to determine specifically whether the defendant participated as an accomplice or as a principal, so long as there was sufficient evidence of the defendant’s active participation in the crime and that he had or shared the necessary intent.  In such a case, use of a general verdict slip is also appropriate.  See id. at 468.  We decline to overrule Zanetti.  The trial judge properly instructed the jury in accordance with that case, and properly used a general verdict slip.

e.  G. L. c. 278, § 33E.  We have thoroughly reviewed the record as required under G. L. c. 278, § 33E, and find no grounds to warrant relief.

Judgment affirmed.

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