Commonwealth v. Lionel Rodriguez (and a companion case, Commonwealth vs. Ryan Marshall), August 9, 2010
457 Mass. 461
457 Mass. 461
Peremptory Challenge, “Honest but Mistaken” identification, Photographic and Expert Testimony Admission, Accessory before the Fact Juror Instructions
A jury convicted Rodriguez of murder in the first degree on the theory of extreme atrocity or cruelty, and his codefendant Marshall was convicted of being an accessory before the fact to that murder also on a theory of extreme atrocity or cruelty. Rodriguez argued on appeal (1) that the prosecutor improperly used a peremptory challenge to remove the sole Hispanic juror; (2) error in the failure to instruct the jury on an "honest but mistaken" identification as set forth in Commonwealth v. Pressley, 390 Mass. 617, 619-620 (1983); and (3) error in the admission of autopsy photographs and testimony of the medical examiner. Marshall argued (1) insufficiency of the evidence; (2) violation of due process; (3) error in the judge's instructions to the jury; and that the SJC exercise their authority under G.L. c. 278, § 33E, to reduce his conviction. The SJC found that errors in the admission of autopsy photographs and testimony of the medical examiner created a substantial likelihood of a miscarriage of justice as to Rodriguez’s conviction of murder in the first degree on a theory of extreme atrocity or cruelty, and reduced his conviction to murder in the second degree. Because there was insufficient evidence to sustain Marshall's conviction as an accessory before the fact, the SJC reversed his conviction and set aside the verdict.
Facts
On the night of February 15th, 2001, a group of adults including Marshall’s mother were having drinks at Marshall’s house. When Marshall arrived home he was accompanied with several friends including Rodriguez and his girlfriend Rose. Eventually a few of the adults were leaving the party when they noticed the victim and a youth named Tirado having an argument in the street. When the victim tried to drive away, Tirado slashed his front tire with a knife. While the victim was attempting to change his tire, he again argued with Tirado until several of Tirado’s friends arrived, including Marshall and Rodriguez. At this point the group of men began stomping, kicking, and beating the victim. When police arrived there were roughly 30 people at the scene and the victim was unconscious and bleeding. The victim died at the hospital as a result of internal bleeding resulting from blunt force trauma.
Police arrested Marshall after testimony from Rose saying that Marshall kicked the victim around the legs, and DNA evidence from Marshall’s boots was matched with the victim. Rodriguez was also arrested based on eyewitness testimony that he kicked the victim several times in the torso.
At trial Rodriguez’s defense counsel proceeded on a theory of misidentification by eliciting from witnesses that they hadn’t seen Rodriguez, and by casting doubt on the veracity of Rose’s testimony. Marshall’s counsel presented the defense based on the ME’s testimony that the injuries around the defendant’s knees, where Marshall kicked, were not fatal and did not contribute to the cause of death.
Peremptory Challenge
Rodriguez argued that the prosecutor's peremptory challenge of the sole Hispanic venireperson violated the equal protection clause of the 14th Amendment to the United States Constitution, Batson v. Kentucky, 476 U.S. 79, 84-89 (1986), and art. 12 of the Massachusetts Declaration of Rights, Commonwealth v. Soares, 377 Mass. 461, 486-488.
During the two day empanelment of the jury, the prospective juror in question was asked if she had ever had any involvement with the criminal justice system. She informed the court that her son was on probation from a case in the Juvenile Court in Attleboro, and that she had testified in an assault case against her assailant. When asked why she had checked the box labeled “none”, indicating that she or her family had no involvement in a criminal or civil case, she had no explanation except for stating that she could read the form. The judge declined to allow prosecutor’s challenge of this juror for cause, believing that she just made a mistake on the form. The prosecutor next directed five peremptory challenges jurors including the one in question.
Defense counsel for Rodriguez objected, but was told to wait until the seats were refilled. Rodriguez stated that this person was the only Hispanic juror. The judge asked the prosecutor if he wanted to be heard and the prosecutor said that there was no way to know that this was going to be the only Hispanic juror in the venire, that he had already challenged this juror for cause because of a legitimate concern about her ability to follow instructions due to how she filled out the form, and that the challenge was not based at all on race. The judge said that based on the Commonwealth’s explanation, and the fact that the juror in question may not have been the only Hispanic juror on the list; he ruled that the peremptory challenge stood.
The SJC discussed that while this was not exactly procedurally correct, the end result was what was likely to have occurred anyway, and thus there was no prejudice to the defendant and no error in allowing the peremptory challenge to stand. The SJC stated that once a concern about improper use of peremptory challenges is made the judge must make a finding about whether a prima facie showing of improper use has been made. Next the trial judge must ask the challenged party to provide a “group-neutral” explanation for the challenge, and then must decide whether the explanation is not only reasonable, but accurately reflects the challenged party’s thinking behind the challenge.
Although the judge should have allowed Rodriguez’s counsel to establish a prima facie showing of racial motivation, the fact that this juror was the only Hispanic visible in the venire and that counsel’s challenge was that she was the only Hispanic, was sufficient to establish a prima facie case. The judge’s asking the Commonwealth for comment for was sufficient for the next step of providing a group-neutral reason, and the explanation was subjectively reasonable and substantiated by the record from the voir dire.
Honest but Mistaken Identification Instruction
Rodriguez argued that there was a substantial likelihood of a miscarriage of justice because his counsel did not request, nor did the trial judge by his own initiative, give an instruction on an “honest but mistaken” identification. Because testimony from Rose identified the defendant as taking part in the beating, and because she was intoxicated at the time, an instruction about mistaken identification could have been given. The SJC noted that counsel did request an instruction on identification, but because he did not use the words, “honest but mistaken”, the judge was not required to give that specific instruction. The court also discussed that the instruction the judge gave about reliability of the identification was adequate, the better instruction would have been “honest but mistaken”, but no substantial likelihood of a miscarriage of justice occurred.
Autopsy photographs and testimony of medical examiner
The medical examiner that actually performed the autopsy and took the autopsy photographs of the victim was unavailable for the trial. The Commonwealth called Dr. Evans to testify about the victim’s injuries and the photographs. Rodriguez’s counsel objected to the photos because they were inflammatory and insufficiently authenticated, because Dr. Evans had not taken them. Defense counsel did not object during trial, but on appeal contended that the introduction of the original doctor’s charts showing the victim’s injuries as well as Dr. Evan’s testimony about the original doctor’s conclusions were inadmissible as hearsay. The Commonwealth conceded that the photos were admitted without proper foundation, however they contended that Rodriguez was not prejudiced by the admission of these photographs because the victim’s cause of death was not challenged by him as his defense was one of misidentification, and that the photographs were cumulative of other properly admitted testimony.
The SJC agreed that while the photos did not affect his defense of misidentification, they were significant in the Commonwealth’s establishing the burden of proof. Because the jury rejected the idea of premeditation, the Commonwealth needed to prove extreme atrocity or cruelty. The SJC found that the photographs were not cumulative, and were improperly admitted. Furthermore, because they were extremely graphic and more vivid than any of the witness testimony, it is very likely that the photos helped the Commonwealth show the only remaining first degree murder theory of extreme atrocity and cruelty.
While some of Dr. Evans’ testimony objected was properly admitted (his testimony about his own conclusion about cause of death and severity of injuries based on ME’s reports and his own inquiry) his testimony regarding the original autopsy doctor’s conclusions and the use of the original doctor’s chart to show the injuries should not have been allowed. This testimony, like the photographs, was not merely cumulative because it affected the jury’s ability to see the severity of the injuries.
Because witness testimony merely described what people saw from a distance about the beating of the victim the SJC could not say with substantial confidence that in the absence of both the graphic autopsy photographs and improperly admitted Dr.’s testimony and chart, the jury verdict on the issue whether the murder was committed with extreme atrocity or cruelty would have been the same.
Accordingly, because the SJC found that the record indicated there was sufficient evidence that Rodriguez committed an unlawful killing and that he intended to cause grievous bodily harm. Additionally because the jury found him guilty of murder, all the necessary elements of murder in the second degree had been established beyond a reasonable doubt. The SJC vacated the verdict of murder in the first degree and directed the entry of murder in the second degree.
Marshall’s Challenge
At the close of the Commonwealth’s case Marshall’s counsel moved for a required finding of not guilty on the charge of accessory before the fact because there was no evidence that Marshall counseled, hired, or otherwise procured the others to commit the offense. This motion was denied, because the judge felt there was sufficient evidence that Marshall aided in the murder, but defense’s claim of error was preserved for appeal. Because the trial judge misconstrued the meaning of G.L. c. 274, § 2 to mean that accessory before the fact was the same as joint venture, the SJC discussed at length the recent updates to Accomplice liability in Massachusetts.
Basically, the SJC talked about how accomplice liability has changed from “principles and accessories” to “joint venture” to finally “aiding and abetting” as far as punishment and classification are concerned. Then, after an analysis of the legislative history and intent, The SJC stated that the charge of accessory before the fact requires different proof than aiding and abetting, namely that the defendant have taken some action to further the commission of the crime, before the crime occurs. In this case there was no evidence of this presented, merely that Marshall aided in the beating. The SJC suggested that the Commonwealth should have proceeded with a murder case against Marshall.
In the end, because there was insufficient evidence, and because in instructing the jury about what was necessary to find Marshall guilty of being an accessory before the fact the judge said, “if he aided in the commission of the murder of the victim”, which was erroneous because it made no reference to the fact that it must have occurred before the commission of the felony. The verdict finding Marshall guilty was set aside.
Concurrence
C.J. Marshall wrote separately, agreeing with the court’s decision, but noting that this case is another example of why peremptory challenges as a whole should be abolished.
- Prepared by AEK
- Prepared by AEK
