Commonwealth v. Camacho

472 Mass. 587

36 N.E.3d 533

COMMONWEALTH

v.Jesse CAMACHO.

SJC–11138.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 8, 2015.

Decided Sept. 8, 2015.

Elizabeth A. Billowitz, Boston, for the defendant.

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

Present: GANTS, C.J., CORDY, DUFFLY, LENK, & HINES, JJ.

Opinion

CORDY, J.

In the early morning hours of January, 24, 2008, Jeffrey Santiago was shot and killed at a night club in Chelsea. Surveillance footage and multiple eyewitnesses identified the defendant, Jesse Camacho, as the shooter. The defendant was charged with murder in the first degree, unlawfully carrying a firearm, assault and battery by means of a dangerous weapon, and armed assault with intent to murder. At trial, the Commonwealth proceeded with respect to the murder charge on theories of deliberate premeditation and extreme atrocity and cruelty. The defendant contended that he acted in defense of another. A jury found the defendant guilty on all charges.

On appeal, the defendant claims several errors, including error in the trial judge's rulings excluding both so-called Adjutant evidence of prior violent acts of the victim and his friends, see Commonwealth v. Adjutant, 443 Mass. 649, 824 N.E.2d 1 (2005), and statements the defendant made to his girl friend.¹ We find no reversible error arising from the defendant's claims. Further, we conclude that there is no basis for exercising our authority under G.L. c. 278, § 33E, to reduce the verdict of murder to a lesser degree of guilt or order a new trial. Accordingly, we affirm the defendant's convictions.

Background. We recite the facts in the light most favorable to the Commonwealth, reserving certain details for our analysis of the issues raised on appeal. On the evening of January 23, 2008, the victim went to a nightclub (club) in Chelsea with his friends Toulou Thach and Gabriel Rodriguez. Once there, they met up with Edward Vozzella and Kevin Reis. The defendant went to the same club that night, arriving with his friend Mario Sunsin and meeting up with Marcelo Miranda, who had arrived with his friends Danny Diaz and another man.

The defendant, Sunsin, and Miranda were members of the Tiny Rascals Gang (TRG). TRG had prior problems with the Bloods, a rival gang, of which Rodriguez was a member. Sunsin and Miranda were familiar with Rodriguez, as Rodriguez and Miranda had previously been in a fight that resulted in Miranda's hospitalization. More recently, Sunsin and Miranda had thrown Rodriguez out of a hotel room, forcing him to walk home in the cold in his underwear.

On Miranda's arrival at the club earlier that night, he saw Rodriguez and asked him if there was going to be any trouble. Rodriguez replied, “No.” Diaz testified that he had had a confrontation at the door of the club with a man he later identified as the victim. Eventually, the defendant and his group sat down to watch the club's dancers perform, while members of the victim's group congregated by the bar. At this point, the victim wandered toward the club's stage and stood against a wall behind the defendant, conversing with a bouncer and watching the dancers.

Subsequently, the victim's group left the bar area and came over to stand behind the defendant and his group of friends. The victim conversed with his friends for a few moments before moving away from them towards the dancers' entrance to the stage. Meanwhile, Rodriguez sat down next to Miranda, and the two conversed for a few minutes before Rodriguez went back to his group of friends. Miranda told the defendant's group to keep their heads up because “something could happen.” Almost immediately after Rodriguez left the seat next to Miranda, Rodriguez threw a beer bottle at Sunsin's head.² Sunsin then tackled Rodriguez, the two men fell to the ground, and some of the victim's group jumped on top of Sunsin and started to hit him.

As Sunsin tackled Rodriguez, the defendant jumped up from

his seat, took out a firearm, “rack[ed]” it, and started firing at the victim's group. While the victim, Vozzella, and Joseph Upton (a bouncer) were attempting to flee from the gunfire, shots struck them.³ The victim subsequently fell to the ground. As the defendant chased the fleeing group out of the club, he approached the victim, who remained lying on the floor, and shot him two more times from less than two feet away.⁴ The defendant then left the bar, attempting to shoot others as they ran. He fled Massachusetts days after the shooting and was apprehended in Mexico nine months later.

Procedural history. In April, 2008, a grand jury returned indictments charging the defendant with murder in the first degree, in violation of G.L. c. 265, § 1 ; unlawfully carrying a firearm, in violation of G.L. c. 269, § 10 (a ) ; two counts of assault and battery by means of a dangerous weapon, in violation of G.L. c. 265, § 15A ; and two counts of armed assault with intent to murder, in violation of G.L. c. 265, § 18 (b ). The jury rejected the defendant's claim of defense of another and convicted him on all the indictments, including murder in the first degree under theories of deliberate premeditation and extreme atrocity and cruelty.

The defendant was sentenced to life imprisonment for murder in the first degree; from four to five years for unlawfully carrying a firearm, concurrent with his sentence for murder; from ten to twelve years for armed assault with intent to murder Upton, consecutive to his sentence for murder; and from ten to twelve years for armed assault with intent to murder Vozzella, consecutive to his sentence for armed assault with intent to murder Upton.⁵ The defendant's convictions of assault and battery by means of a dangerous weapon were placed on file. The defendant filed a notice of appeal.

In January, 2013, the defendant filed a motion for postconviction discovery of gang-related evidence and a motion for a new trial. He subsequently filed an amended motion for a new trial, presenting an additional issue of ineffective assistance of counsel. On June 28, 2013, the trial judge denied the defendant's discovery motion and partially denied the defendant's amended motion for a new trial, ordering an evidentiary hearing solely on

the issue of ineffective assistance of trial counsel. In January, 2014, the judge denied the remainder of the defendant's amended motion for a new trial, as well as a motion to reconsider the denial of his discovery motion. The defendant appealed both of these rulings.

The defendant subsequently filed a motion to reconsider the denial of his amended motion for a new trial, which was denied.⁶ The present case represents the defendant's consolidated appeal from his convictions as well as the denials of his motions for a new trial and for postconviction discovery.

Discussion. “When this court reviews a defendant's appeal from the denial of a motion for a new trial in conjunction with his direct appeal from an underlying conviction of murder ..., we review both under G.L. c. 278, § 33E.” Commonwealth v. Burgos, 462 Mass. 53, 59, 965 N.E.2d 854, cert. denied, ––– U.S. ––––, 133 S.Ct. 796, 184 L.Ed.2d 589 (2012). In so doing, “[w]e first inquire if the denial of the motion was based on an error of law or an abuse of discretion.... If so, we then must determine whether such error create [d] a substantial likelihood of a miscarriage of justice” (citation omitted). Commonwealth v. Leng, 463 Mass. 779, 781, 979 N.E.2d 199 (2012). “We extend special deference to factual determinations made by a motion judge who was also the trial judge, as here” (citation omitted). Id.

1. Adjutant evidence. At the time of trial, the law of this Commonwealth, as delineated in Adjutant, 443 Mass. at 664, 824 N.E.2d 1, was, “where the identity of the first aggressor is in dispute and the victim has a history of violence, ... the trial judge has the discretion to admit evidence of specific acts of prior violent conduct that the victim is reasonably alleged to have initiated, to support the defendant's claim of self-defense” (emphasis added). Such evidence “may be admitted as tending to prove that the victim and not the defendant was likely to have been the ‘first aggressor’ ” because it may show “that the victim acted in conformance with his character for violence.” Adjutant, 443 Mass. at 654, 824 N.E.2d 1. This evidence has “substantial probative value,” id. at 656, 824 N.E.2d 1, when used exclusively for this “limited purpose.” Id. at 660, 824 N.E.2d 1.

Nearly three years after the defendant's convictions, we decided Commonwealth v. Chambers, 465 Mass. 520, 527–530, 989 N.E.2d 483 (2013), which clarified the breadth of admissible prior violent acts under Adjutant. In Chambers, we held that the definition of

“first aggressor” included not only the person who initiated the confrontation, but also the person who initiated the use or threat of deadly force, as “resolution of both issues may assist the jury in deciding whether the prosecution has met its burden of proving that the defendant did not act in self-defense.” Id. at 529–530, 989 N.E.2d 483.

At trial, the defendant's principal defense was that he reasonably used force to defend Sunsin against assault. On appeal, he argues that the judge erred, under Adjutant, in barring him from introducing evidence of the past violent crimes of the victim, Rodriguez, and Reis. Conceding that there was no dispute as to who was the first aggressor, the defendant nonetheless submits that such evidence was admissible because the victim, Rodriguez, and Reis were among the group that jumped on Sunsin. Accordingly, he contends that evidence of their violent pasts would better contextualize any conflicting evidence of the events and better assist the jury in determining whether the Commonwealth met its burden of proving that the defendant did not act in defense of another.

The defendant further contends that this evidence is admissible...