Commonwealth v. Sosa

493 Mass. 104

222 N.E.3d 5

COMMONWEALTH

v.Amadi SOSA.

SJC-12166

Supreme Judicial Court of Massachusetts, Hampden.

Argued May 5, 2023

Decided November 30, 2023

John M. Thompson (Linda J. Thompson, Springfield, also present) for the defendant.

David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth.

Present: Budd, C.J., Gaziano, Cypher, Kafker, & Georges, JJ.

GEORGES, J.

This is a companion case to Commonwealth v. Leiva, 484 Mass. 766, 146 N.E.3d 1093 (2020). There, we affirmed the convictions of Julio Brian Leiva, who was tried together with the defendant for the shooting death of William Serrano during an attempted robbery. Id. at 767, 769, 770 n.2, 146 N.E.3d 1093. A Hampden County jury convicted the defendant of murder in the first degree on theories of deliberate premeditation and felony-murder, as well as armed assault with the intent to rob and unlawful possession of ammunition. Before us are the defendant's consolidated appeals from his convictions and from the denial of his motion for a new trial.

The defendant has asserted numerous errors. He contends that the trial judge erred by (1) denying the defendant's motion for relief from prejudicial joinder, or otherwise failing to sever his trial from that of his codefendant, Leiva; (2) allowing the prosecutor to use an unauthenticated video recording during the course of trial; (3) denying the defendant's motion for a required finding of not guilty on the charge of murder in the first degree; (4) failing to instruct the jury on an essential element of the charge of unlawful possession of ammunition; and (5) failing to instruct the jury on involuntary manslaughter. The defendant further contends, with respect to his motion for a new trial, that the motion judge erred both in failing to hold an evidentiary hearing and in denying the defendant's motion. Finally, the defendant requests relief pursuant to G. L. c. 278, § 33E.

We discern no reversible error with respect to the defendant's convictions of murder in the first degree and armed assault with the intent to rob. Additionally, after a thorough review of the record, we decline to exercise our authority under G. L. c. 278, § 33E. Accordingly, we affirm the defendant's convictions of murder in the first degree and armed assault with the intent to rob. We also affirm the denial of the defendant's motion for a new trial. However, because of an error in the jury instructions, the defendant's conviction of unlawful possession of ammunition must be vacated.

1. Background. a. Facts. We summarize the facts the jury could have found, reserving further discussion of the facts for our analysis infra.

On November 10, 2013, the day of the shooting, the victim joined his girlfriend for dinner at her sister's residence in Springfield. About twenty minutes after the couple arrived, Leiva joined them, uninvited. Leiva and the victim's girlfriend had previously dated, ending their relationship about six months prior to the shooting; they remained friendly after their relationship ended.

Leiva stayed in the kitchen for about thirty minutes, eating and sending text messages on his cell phone before abruptly leaving and returning about fifteen minutes later. After another ten to fifteen minutes had passed, Leiva departed again. He left through the back door of the house onto a small porch where he passed by the victim, who was seated in a chair with the girlfriend on his lap. Leiva, the victim, and the girlfriend were the only people on the porch.

The girlfriend observed the defendant walk down the porch stairs, then around to the right, where he disappeared behind the porch. A few minutes later, Leiva reemerged from behind the porch, followed closely by two men in dark sweatshirts with raised hoods. The girlfriend recognized one of the men as the defendant, a friend of Leiva, whom she had known for over six months and with whom she frequently socialized. As the three men approached the porch steps, the girlfriend could see that Leiva was carrying what appeared to be a shotgun or rifle with a sawed-off barrel.¹ She had previously seen this same gun at the defendant's residence.

Coming onto the porch, Leiva first pointed the barrel of the gun at the girlfriend, who was attempting to block the top of the stairway. The three men pushed past her and surrounded the victim, with Leiva now aiming the gun at the victim's chest. Leiva then instructed the other two men to "run his pockets," at which point the two men bent over to reach into the victim's pockets. Although the girlfriend did not see what, if anything, they retrieved, the victim was in possession of two cell phones earlier that evening, and only one was discovered among the victim's belongings.

When the victim, who was still seated in the chair, pleaded to be left alone, Leiva shot the victim seven times. The defendant and the other man stood on either side of Leiva, looking on while facing the victim as the shots rang out. Hearing the gunshots, the girlfriend's sister called 911. Several minutes later, a responding officer entered the sister's living room and found the victim, who, while screaming and bleeding, had managed to crawl inside. The victim was transported to the hospital, where he later died in surgery. After leaving the area, Leiva explained to a friend that he "went to go rob somebody" while he was with two associates but that things went wrong.

b. Procedural history. In February 2014, a Hampden County grand jury indicted the defendant for murder in the first degree, G. L. c. 265, § 1 ; armed assault with intent to murder, G. L. c. 265, § 18 (b ) ; armed robbery, G. L. c. 265, § 17 ; armed assault with intent to rob, G. L. c. 265, § 18 (b ) ; and unlawful possession of ammunition, G. L. c. 269, § 10 (h ).

The defendant's joint trial with his codefendant, Leiva, commenced in January 2016. Before trial, defendant's counsel filed a motion for relief from prejudicial joinder, seeking to sever the two cases on the grounds that the defenses would be antagonistic. The trial judge denied this motion. At the close of the Commonwealth's case, the trial judge allowed the defendant's motion for required findings of not guilty as to the charge of armed assault with intent to murder but otherwise denied the motion with respect to the remaining charges.

The jury acquitted the defendant of armed robbery but found him guilty of murder in the first degree on theories of deliberate premeditation and felony-murder with attempted commission of armed robbery as the predicate felony, guilty of armed assault with the intent to rob, and guilty of unlawful possession of ammunition.

The defendant timely appealed. While his direct appeal was pending, the defendant filed a motion in this court for a new trial pursuant to Mass. R. Crim. P. 30 (b ), as appearing in 435 Mass. 1501 (2001). We remanded the defendant's motion to the Superior Court. After an evidentiary hearing, the motion judge, who was not the trial judge, denied the defendant's motion. The defendant's motion to reconsider was likewise denied. Thereafter, the defendant appealed from the denial of his motion for a new trial, which we consolidated with his direct appeal.

c. The trial. At trial, the Commonwealth proceeded against the defendant as a joint venturer with Leiva in the armed robbery and murder of the victim. In support of its theory, the Commonwealth primarily relied upon the girlfriend's testimony concerning the events that evening, including identifying the defendant as one of the other two men involved in the shooting. See Leiva, 484 Mass. at 769-770, 146 N.E.3d 1093. The girlfriend's timeline of events was corroborated by surveillance footage that was recorded at an apartment building where Leiva would frequently stay while visiting Springfield, which depicted Leiva at various points on the evening of the shooting.² Id. at 768, 770, 146 N.E.3d 1093.

Additionally, the Commonwealth's ballistics expert opined that seven shell casings recovered from the crime scene had been fired from the same weapon, as were five bullets recovered from the scene of the shooting and the victim's body. Id. at 770-771, 146 N.E.3d 1093. The police seized from the defendant's residence live rounds of ammunition of the same caliber and bearing the same manufacturer's markings as the shells recovered from the crime scene. Id.

The defendant's primary defense was that he had been misidentified. In support of this theory, counsel for the defendant pointed to numerous factors in his closing, including the girlfriend's mistaken identification of the defendant due to her focus on the gun, the darkness of the setting, and the presence of hoods on Leiva's associates, as well as the girlfriend's mistaken identification of another of Leiva's associates.

The defendant himself did not testify; Leiva, however, did -- in narrative form -- which the judge permitted him to do pursuant to Mass. R. Prof. C. 3.3 (e), as appearing at 471 Mass. 1416 (2015) ( rule 3.3 [e]). See Leiva, 484 Mass. at 771–773, 146 N.E.3d 1093. The judge also prohibited counsel from referencing the invocation of rule 3.3 (e) and strongly cautioned them against examining Leiva on this topic. Leiva testified that, while he had visited the sister's residence on the day of the shooting, he left to purchase some marijuana, did not see the defendant, and did not shoot the victim. Id. at 771, 146 N.E.3d 1093.

2. Discussion. a. Standard of review. "Where we consider, as we do here, a defendant's direct appeal from a conviction of murder in the first degree together with an appeal from the denial of a motion for a new trial, we review the whole case under G. L. c. 278, § 33E." Commonwealth v. Goitia, 480 Mass. 763, 768, 108 N.E.3d 993 (2018). "Where the claims are preserved, we review for prejudicial error" (quotation and citation omitted). Commonwealth v. Gamboa, 490 Mass. 294, 299 n.8, 190 N.E.3d 469 (2022). For claims that are unpreserved, and for "other errors we discover after a...