MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his conviction, after a jury trial, of murder in the second degree, in violation of G. L. c. 265, § 1. Given that the defendant was not one of the people who shot and killed the victim, the case against him was based on a theory of joint venture. On appeal (as at trial), the defendants primary argument is that the Commonwealth failed to prove beyond a reasonable doubt that he participated in a joint venture to murder with the requisite intent to kill. The defendant also argues that the judge erred in admitting opinion testimony about street gangs in Boston and the defendants association with a particular gang. The defendant also argues that the judge erred in failing to instruct the jury on involuntary manslaughter, resulting in a substantial risk of a miscarriage of justice. Finally, the defendant argues that a factual misstatement in the prosecutors closing argument created a substantial risk of a miscarriage of justice. We affirm.
Sufficiency of the evidence. “[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt․ [The] question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
“The elements of murder in the second degree are (1) an unlawful killing and (2) malice.” Commonwealth v. Earle, 458 Mass. 341, 346 (2010). See Model Jury Instructions on Homicide 72 (2018). “Malice aforethought may be shown by proof that the defendant, without justification or excuse, intended to kill the victim or to do the victim grievous bodily harm.” Commonwealth v. Grey, 399 Mass. 469, 470 n.1 (1987). Further, “[i]f in the circumstances known to the defendant a reasonably prudent person would have known of the plain and strong likelihood that death would follow a contemplated act, malice may be found without any actual intent to kill or to do grievous bodily harm and without any foresight by the defendant of such consequences.” Id. at 472 n.4. Where an inherently dangerous weapon, such as a firearm, is used in the commission of the offense, the jury are permitted to infer that the defendant acted with malice. Commonwealth v. Tu Trinh, 458 Mass. 776, 784 (2011).
“A defendant is guilty as a joint venturer ‘if the Commonwealth has proved beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense.’ ” Commonwealth v. Deane, 458 Mass. 43, 50 (2010), quoting Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). A defendants knowledge or intent “may be proved by inference from all the facts and circumstances developed at trial.” Commonwealth v. Costa, 407 Mass. 216, 225 (1990). “[M]ere presence [at the scene of the crime,] coupled with the failure to take affirmative steps to prevent the crime is insufficient [to sustain a conviction on a theory of joint venture liability], as is simple knowledge that a crime will be committed.” Commonwealth v. Ortiz, 424 Mass. 853, 859 (1997). But “[a] joint venturer encourages, assists, or emboldens ‘by giving ․ hopes of immediate assistance,’ ․ if he is by agreement in a position to render aid and ‘the jury may infer the requisite mental state from the defendants knowledge of the circumstances and subsequent participation in the offense’ ” (citation omitted). Commonwealth v. Cintron, 435 Mass. 509, 515 (2001), quoting Commonwealth v. Soares, 377 Mass. 461, 470, cert. denied, 444 U.S. 881 (1979). Furthermore, “[a] person who acts as a lookout while others are engaged in a criminal enterprise can be convicted on a joint enterprise theory.” Commonwealth v. Miranda, 441 Mass. 783, 791 (2004), quoting Commonwealth v. James, 30 Mass. App. Ct. 490, 499 n.10 (1991).
Here, viewed through the lens of Latimore, 378 Mass. at 676-677, the evidence permitted the jury to find the following beyond a reasonable doubt.
2
Shortly before 9 p.m. on April 21, 2017, Yanuel Viloria was shot and killed in a common rear hallway of 180 Ruggles Street, which was part of a public housing development in Boston. There were at least two gunmen; one was Malik Phillips. The defendant was known to “hang out” with Phillips, and both men lived in the same neighborhood of Orchard Park. The defendant and Phillips were both members of the Orchard Park Trail Blazers gang (Orchard Park gang), and identified themselves as such. For example, they wore clothing and adopted other symbolic references belonging to that gang (such as, for example, Portland Trail Blazers clothing and a clothing line called “I Love My Fiends,” which was developed by an Orchard Park gang associate). Surveillance video from a neighborhood liquor store showed that the defendant was with Phillips one-half hour before Vilorias murder.
In the months leading up to the murder, there were a number of shootings involving -- on the one hand -- people associated with the Orchard Park gang and the Mount Pleasant Vine and Forest gang, with which the Orchard Park gang was friendly, and -- on the other hand -- people associated with the Ruggles Street Rockets gang (Ruggles Street gang). Most recently, a member of the Mount Pleasant Vine and Forest gang, one Khisean Desvarieux (whose moniker was “LA”), had been killed by a member of the Ruggles Street gang. Phillips was friendly with Desvarieux. Although there was no evidence that the defendant was also friendly with Desvarieux, at the time of his arrest, the defendant was wearing a baseball cap with “LA” on it, in addition to a Trailblazers shirt, thus linking himself to the Orchard Park gang, the Mount Pleasant Vine and Forest gang, and Desvarieux.
As noted above, Viloria was murdered in the rear hallway of 180 Ruggles Street, which was a location associated with the Ruggles Street gang. Young people would on a regular basis congregate in the common hallways of 180 Ruggles Street. On the night in question, Viloria (who was not known to have any gang involvement) and some of his friends met at 180 Ruggles Street. They “hung out” for a couple of hours in the rear hallway of the building without incident. Eventually, Viloria and his friend Niane Mendes moved to the front hallway of the building, with Viloria sitting on the steps of the stairwell leading to the second floor a few minutes before 9 p.m.
Meanwhile, also a few minutes before 9 p.m., two sisters were looking out a window of their apartment, located in another part of the same housing development and with an entrance at 160 Ruggles Street. They had an unobstructed view onto Ruggles Street and saw five young men come along it from the direction of Raynor Circle. One of these men, whom the jury could conclude was Phillips, was displaying a small black gun. From the way Phillips was displaying the gun, one of the sisters believed “something was going to happen,” moved away from the window, and went to get her children. Two of the men in the group, one of whom was wearing a red hooded sweatshirt known as a “hoodie,” went towards a church located across the street from 180 Ruggles Street. From that vantage point, they were “looking out” towards 180 Ruggles Street, looking down, bending down, and looking at the front doorway of 180 Ruggles Street.
Phillips first tried to enter the housing development at 160 Ruggles Street but was unable to open the door. He then went over to 180 Ruggles Street, where he tried to enter through the back door. When that, too, proved unsuccessful, Phillips went to the front door of 180 Ruggles Street, and entered the building.
3
Phillips entered the building with two other men, one of whom was carrying a large, concealed, silver-colored firearm and wearing a gray hoodie. Phillips, his companions, and Viloria then moved down the hall towards the rear hallway.
One of the sisters meanwhile saw the two men who had been standing in front of the church and “looking out” cross the street together “right after” Phillips and follow him into 180 Ruggles Street. A video surveillance camera located in 180 Ruggles Street captured the defendant entering through the front door of 180 Ruggles Street, together with a man in a red hoodie, at 8:58:21 p.m., which was only twenty-five seconds after Phillips entered. The jury could permissibly conclude from the circumstances and timing that the defendant had been outside 180 Ruggles Street in the same group with Phillips when Phillips displayed his gun, and, moreover, that it was the defendant “looking out” from the church with the man in the red hoodie, observing 180 Ruggles Street and particularly its entrance.
4
When the defendant entered 180 Ruggles Street, he headed in the direction of Phillips and his companions, down a hall leading to the rear hallway. The defendant encountered all three men as they were returning the opposite way. The defendant, Phillips, and the other two men engaged Viloria in a brief conversation, asking for “weed,” and one of the men asked Viloria whether anyone else was in the hallway. The defendant then stayed right next to Phillips as he and Phillips observed movement in the hall leading to the rear hallway. The defendant stepped to the side as the man in the gray hoodie passed in front of him with the large silver gun. That man turned and looked at the defendant as he passed. The defendant stayed close to Phillips, and the two moved together slightly down the hall towards the rear hallway, until the moment the man in the gray hoodie accidentally discharged his gun into the floor. At that point, the defendant stepped back, and Phillips and the man in the gray hoodie ran past the defendant and down the hall towards the rear hallway, where they killed Viloria by shooting him multiple times. The defendant hesitated, but then took a few steps to follow Phillips and the man in the gray hoodie down the hall, in the same direction, towards the murder. A second or two later, Phillips ran back down the hall towards the defendant. The defendant turned and fled out the front door along with Phillips and the other men.
The evidence was sufficient to sustain the defendants conviction as a joint venturer of murder in the second degree. See Commonwealth v. Williams, 422 Mass. 111, 121 (1996) (“Joint venture may be proved by circumstantial evidence, including evidence of flight together. ․ The jury could further infer intent to commit the murder from the carrying of the firearm and the [victims] wounds themselves”); Costa, 407 Mass. at 225 (“The jury could have reasonably inferred the requisite mental state from the circumstances and from the defendants conduct”). The jury could find, beyond a reasonable doubt, that the defendant joined with Phillips in a group endeavor, as members of the Orchard Park gang, to go into territory associated with the rival Ruggles Street gang, to commit a shooting as part of an ongoing feud between the gangs. Although there was no evidence to suggest that the defendant was himself armed, the jury could find that he knew that Phillips and the man in the gray hoodie were. They could also conclude that the defendant and the man in the red hoodie planned to act as lookouts of some sort while Phillips figured out a way to enter 180 Ruggles Street. The jury could also conclude that the defendant was prepared to -- and did -- stand by to assist once Phillips and his two companions were inside the building, because, when the first accidental shot was fired, the defendant -- unlike the other youths who had congregated in the building -- did not flee. Instead, he remained with his cohorts and followed them partway down the hall, toward the rear hallway where the cohorts shot Viloria. The defendant did not abandon the enterprise at any point. The jury could conclude that the defendant was, and remained, ready to assist Phillips as needed.
Gang-related expert testimony. The defendant next argues that the judge erred in allowing a Boston police officer to provide opinion testimony as an expert about the existence of criminal street gangs in Boston, the relations between them, and the association of the defendant and others in the defendants circle with a particular gang. “The admission of expert testimony lies largely in the discretion of the trial judge” (quotation omitted). Commonwealth v. Richardson, 423 Mass. 180, 182 (1996). “The judges ‘ruling will be reversed on appeal only if it constituted an abuse of discretion or was otherwise tainted with error of law.’ ” McLaughlin v. Board of Selectmen of Amherst, 422 Mass. 359, 362 (1996), quoting Commonwealth v. Devlin, 365 Mass. 149, 152 (1974). Because the defendant timely objected, we review any error for prejudice to the defendant. See Commonwealth v. Bannister, 94 Mass. App. Ct. 815, 822 (2019).
“Otherwise qualified expert testimony is admissible if, ‘in the judges discretion, the subject [of such testimony] is not within the common knowledge or common experience’ of the trier of fact, and the testimony will assist the trier of fact in determining a fact in issue or in understanding the evidence.” Miranda, 441 Mass. at 792-793, quoting Commonwealth v. Francis, 390 Mass. 89, 98 (1983). Where, as here, the Commonwealths theory was that the crime was related to gang activity, evidence about a defendants gang affiliation was relevant and admissible to shed light on the defendants state of mind or motive. Commonwealth v. Maldonado, 429 Mass. 502, 504 (1999). “We repeatedly have held that evidence of gang affiliation is admissible to show motive or joint venture, and have given deference to judges’ determinations in that regard.” Commonwealth v. Rosario, 460 Mass. 181, 193 (2011), quoting Commonwealth v. Swafford, 441 Mass. 329, 332 (2004). See Commonwealth v. Akara, 465 Mass. 245, 268 (2013) (“We have most often allowed gang evidence to be admitted for the purpose of establishing joint venture in cases where the evidence showed that the offense involved retaliation or conflict between rival gang members, and that the defendants therefore shared a common motive”). In admitting gang-related evidence, however, the judge has a responsibility to “ ‘minimiz[e] the prejudicial nature of the evidence’ through voir dire of prospective jurors and limiting instructions.” Swafford, supra, quoting Commonwealth v. Correa, 437 Mass. 197, 201 (2002).
Here, the judge held a two-day hearing on the defendants motion in limine to exclude the gang-related evidence, which included a thorough voir dire of the Commonwealths proffered witness. The judge also heard argument from counsel on the motion, and carefully weighed the prejudicial nature of gang-related evidence against its probative value. The judge limited the scope of the testimony, and, during jury selection, asked members of the venire whether evidence related to gang activity and affiliation would affect their impartiality; he also asked the same question of each potential juror individually. Finally, when the gang-related testimony was offered at trial, the judge gave limiting instructions to the jury. The judge also reiterated these instructions in his final charge.
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Altogether, the judge handled the gang-related evidence appropriately, and there was no abuse of discretion in its admission. See Maldonado, 429 Mass. at 505 (calling similar treatment of gang-related evidence “exemplary”).
Absence of involuntary manslaughter instruction. The defendant argues that the judge erred by failing to instruct the jury on involuntary manslaughter. Because the defendant did not request an involuntary manslaughter instruction, or object to the judges omission of such an instruction, our review is limited to determining whether the absence of the instruction created a substantial risk of a miscarriage of justice. See Commonwealth v. Curtis, 417 Mass. 619, 628 (1994).
“In determining whether an involuntary manslaughter instruction must be given, we ask whether any reasonable view of the evidence would have permitted the jury to find ‘wanton and reckless’ conduct rather than actions from which a ‘plain and strong likelihood’ of death would follow” (quotation omitted). Commonwealth v. Braley, 449 Mass. 316, 331 (2007). “In doing so, ‘we draw all reasonable inferences from the evidence in favor of the defendant.’ ” Id., quoting Commonwealth v. Dyous, 436 Mass. 719, 731 (2002). But a judge is not required to give an involuntary manslaughter instruction “when it is obvious that the risk of physical harm to the victim creates a plain and strong likelihood that death would follow” (quotation and citation omitted). Commonwealth v. Souza, 428 Mass. 478, 493 (1998).
Here, the defendant entered the apartment building at 180 Ruggles Street with several companions, at least two of whom were armed, and one of whom was a member of the same gang to which the defendant belonged. The space was confined and there were many people in a relatively small area. Both Phillips and the man in the gray hoodie fired their guns multiple times in the small, crowded space. Viloria, who was apparently their target, was shot multiple times in his neck, torso, back, and abdomen. In view of this evidence, even drawing all inferences in favor of the defendant, it is clear in the circumstances known to the defendant and Phillips, who was armed, that a reasonable person would have understood there was a plain and strong likelihood that death would follow from firing a gun multiple times at a person in a confined space. See Commonwealth v. Mack, 423 Mass. 288, 290 (1996) (“Absent some evidence that the defendants knowledge was impaired, intentionally discharging a firearm in the direction of another person creates a plain and strong likelihood of death”). It was therefore unnecessary for the judge to instruct the jury on involuntary manslaughter. See Braley, 449 Mass. at 331-332 (no involuntary manslaughter instruction necessary where there was evidence defendant fired gun intentionally into crowd); Souza, 428 Mass. at 493 (no involuntary manslaughter instruction necessary where defendant shot victim in head and back and fired multiple times, emptying magazine of handgun). Cf. Commonwealth v. Tavares, 471 Mass. 430, 438-439 (2015) (involuntary manslaughter instruction warranted where defendant pointed gun at victim during fight and coventurer unexpectedly grabbed gun and shot victim with it).
Closing argument. In her closing argument, the prosecutor stated that one of the sisters testified that the man who displayed the small black gun outside 180 Ruggles Street immediately before the shooting was wearing an all-black jacket with white toggles. In fact, although the sisters had said that the man was wearing a black top, they did not mention white toggles. The Commonwealth concedes the prosecutors remark was a misstatement of the evidence. Where, as here, the defendant did not object to the prosecutors misstatement, we review the error to determine whether it created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 20 (1999).
In determining whether a prosecutorial error created a substantial risk of a miscarriage of justice, we look to various factors, including whether the error was limited to “collateral issues,” or whether it “[went] to the heart of the case,” and whether the judge gave any curative instruction to mitigate the error. Commonwealth v. Kelly, 417 Mass. 266, 271 (1994). The prosecutors remarks “must be viewed in light of the ‘entire argument, as well as in light of the judges instruction to the jury and the evidence at trial.’ ” Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984), quoting Commonwealth v. Bourgeois, 391 Mass. 869, 885 (1984).
The misstatement here did not go to the heart of the case. Other witnesses provided details of Phillipss distinctive toggle coat, and the jury could reasonably infer from security camera footage showing Phillips wearing a black coat with white toggles, both earlier in the day and inside 180 Ruggles Street while with the defendant, that Phillips was wearing the same coat immediately before the sisters saw him entering the building. The judge also properly instructed the jury that closing arguments are not evidence. The prosecutors minor misstatement of fact here, when coupled with the judges instruction to the jury and the other evidence from which the jury could have identified Phillips and concluded that he was armed, did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Johnson, 470 Mass. 300, 318 (2014).
Judgment affirmed.
FOOTNOTES
2
. Our recitation of the facts includes those drawn from the testimony, documentary exhibits, and surveillance videos the parties submitted to us as part of the appellate record, and which we have carefully reviewed.
3
. Phillips was able to enter because another person happened to come out of the building at that moment, which permitted Phillips to come through the opened front door.
4
. The jury were taken on a view of the scene, which included being able to look out the window from which the sisters made their observations to where the man in the red hoodie and the defendant stood in front of the church, and the relative positions and sightlines of various landmarks.
5
. The defendant argues that the judges final instruction to the jury on the purposes for which they could consider the gang-related evidence was erroneous. We discern no error; the instruction was substantially similar to the language our courts have approved in other cases involving gang-related evidence, and was a correct statement of the law. See Rosario, 460 Mass. at 192-193; Maldonado, 429 Mass. at 505 n.1. The instruction did not permit the evidence to be considered for broader purposes, as did the instruction found wanting in Commonwealth v. Wardsworth, 482 Mass. 454, 472 (2019).