Commonwealth v. Kercado

32 Mass. L. Rptr. 284
CourtMassachusetts Superior Court
DecidedJune 27, 2014
DocketNo. BRCR201000631
StatusPublished

This text of 32 Mass. L. Rptr. 284 (Commonwealth v. Kercado) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Kercado, 32 Mass. L. Rptr. 284 (Mass. Ct. App. 2014).

Opinion

Kane, Robert J., J.

The Commonwealth asks the court to reverse its ruling severing Carmelo Kercado’s trial from the trial of Tfyrell Baptiste and Reggie Greene. All three defendants face indictments charging them with first degree murder. According to the Commonwealth’s theoiy, the three defendants, acting together as joint venturers, murdered Anthony Samedo on June 18, 2006 in the city of New Bedford. The killing of Samedo was purportedly motivated by the group’s desire to retaliate for the shootings of Justin Barry and John Burgos, members of the Gangsta Disciples operating out of the United Front Housing Development. It is posited by the Commonwealth that this retaliatory shooting of Samedo, who was thought to be Minute Silva, had its origins in the historical feuds between the United Front Group and the Monte Park Group.

Persuaded that the evidence would establish Greene and Baptiste’s membership in the United Front gang, known as the Gangsta Disciples and the gang’s desire to retaliate against Silva for the shootings of Barry and Burgos, the court consolidated the trials of Greene and Baptiste. The court severed Kercado’s trial because the Commonwealth’s proffer had failed to establish his proximate membership in the United Front Group and his awareness or belief about Minute Silva’s role in the Burgos and Barry shootings.

COMMONWEALTH’S MOTION

On March 31, 2014, the Commonwealth submitted ' papers in support of its argument that four officers attached to the New Bedford Police Department could offer opinions on the violent relations existing in 2006 between the United Front Group and the Monte Park Group, and Kercado’s membership in the “United Front Group.” The court now examines closely the papers that support the proposed opinion evidence. The papers consisted of: (1) the resumes of Detective David Conceicao and Detective David Brown; (2) a two-page report authored by Sergeant Scott Morton; (3) a two-page gang intelligence report authored by Conceicao; and (5) assorted “reference materials,” including internal security documents prepared by personnel attached to the Bristol County Sheriffs Department and Grand Juiy Minutes.

The documents directly relevant to Kercado’s membership in the “United Front Group” consisted of Morton and Conceicao’s reports. Morton, in his report, recited his patrol activities starting in 2004 that included the United Front Housing Development and his subsequent work as a detective that included investigating conflicts between the United Front and Monte Park Groups. In investigating these acts of violence and other crimes, Morton learned of the United Front Group’s involvement with guns and drugs; as to who belonged to the groups, Morton conceded that the membership fluctuated. He failed to offer any opinion or commentary about Kercado’s involvement in the United Front Group.

Conceicao’s report centered on the arrest of Kercado, John Burgos, and Justin Sebastian on July 17, 2006. The arrests occurred in Roxbuiy and were based on the arresting officer’s belief that the three men had been planning a home invasion. Kercado was incidentally arrested for possession of a .45 magnum pistol that had been found by the police in the area where Kercado had attempted to flee. After Sebastian’s arrest, the police searched his car, finding Percocet pills, ammunition and $753. On September 6, 2006, Burgos had been observed by Conceicao in Sebastian’s vehicle.

Giving “four points” for Sebastian’s arrest with Burgos and four points for Sebastian’s prior association with Burgos, a known member of the Gangsta Disciples, Conceicao “validated” Sebastian’s membership in the Gangsta Disciples.

Giving Kercado “eight points” for the Bristol County Sheriffs Department’s classification of him as a Gangsta Disciple1 and four points for Kercado’s arrest with Burgos, Conceicao “validated” Kercado as a Gangsta Disciple member.

According to the Sheriff Department’s gang classification system2 Kercado received 27 points. Inspec[285]*285tion of the classification sheets revealed that the 27 points accrued from the following: (1) nine points on the basis of a report from an outside law enforcement/criminal justice agency with the supposedly attached report missing; (2) five points because of the alleged but undocumented news report; and (3) other points on the basis of generic criteria.

SUPPLEMENTARY INFORMATION

The court also possesses a one-page report by Julio DeFigueiredo, an investigator attached to the Bristol County Sheriff Department. In that report, DeFigueirido documented the following facts relied upon for the Sheriff Department’s classification of Kercado as a gang member: (1) Kercado’s possession of a firearm in the area of Tremont and Maple Streets in New Bedford that the United Front Gang claims; (2) Kercado’s association with members of the United Front gang; and (3) Kercado’s telephone conversation where he referred to the United Front gang, and to Barry and William Payne, considered to be gang members, and reported that Payne and a Kiana Canto would “make money” to bail him.3

DEFENDANT’S OBJECTIONS

Defendant lodges numerous objections to the opinion testimony’s factual and scientific foundations. He characterizes the underlying information as incomplete, unreliable and misleading. Claiming the evidence of defendant’s gang membership falls under Dauberts scientific regimen, he contends that the proposed opinion testimony fails to satisfy Dauberts scientific scrutiny. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). According to Kercado, the proposed gang membership opinion testimony fails to pass any of the four non-exclusive tests set forth in Daubert.

DISCUSSION

Gang evidence must be carefully considered. It possesses potential to cast a defendant in a light inhospitable to fair trial rights. Commonwealth v. Gray, 463 Mass. 731, 756-57 (2012); Commonwealth v. Smith, 450 Mass. 395, 400 (2008); Commonwealth v. Swafford, 441 Mass. 329, 332-33 (2004); Commonwealth v. Maldonado, 429 Mass. 502, 505 (1999).

Its admission requires as an initial matter a showing that it provides information relevant to the case at hand. Swofford, at 329. Admittedly, Kercado’s purposeful operation of the motor vehicle while Baptiste pursued and shot Silva provides evidence of his participation in a lethal joint venture. The Commonwealth, however, to prove first degree murder by deliberate premeditation must prove an intent to kill, rather than an intent to wound or frighten. Proof of defendant’s affiliation with the Gangsta Disciples, a group that followed a military regimen and used firearms to secure their ends, which included retaliation, would constitute strong evidence of the defendant’s intent and motive.

Admitting an opinion on gang membership and the gang’s relationship with a rival gang rather than the underlying facts serves the interest of introducing relevant evidence without presenting background information that will either cause undue prejudice or distract the jury’s attention from the issues to be decided. Because of its evidentiary framework, opinion testimony allows for introduction of the opinions on gang membership and inter-gang conflicts on direct without mention of the underlying facts. Commonwealth v. Barbosa, 457 Mass. 773, 784 (2010).

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Bluebook (online)
32 Mass. L. Rptr. 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kercado-masssuperct-2014.