NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-139
COMMONWEALTH
vs.
KEVIN AQUINO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant
was convicted of assault and battery by means of a dangerous
weapon (shod foot), causing serious bodily injury, G. L. c. 265,
§ 15A (c) (i). On appeal, the defendant claims error in the
denials of his motion to suppress and motions for a required
finding of not guilty. The defendant also contends that the
prosecutor's cross-examination concerning the defendant's
prearrest silence, and comments made by the prosecutor during
closing argument on the same, deprived him of a fair trial. We
affirm.
Discussion. 1. Motion to suppress statements. a. Facts.
We summarize the facts as found by the motion judge,
supplemented with the uncontroverted testimony of the sole
witness at the suppression hearing, Detective Jason Gangi of the New Bedford police, whose testimony the judge explicitly or
implicitly credited, and with the documentary evidence admitted
at the hearing. See Commonwealth v. Tremblay, 480 Mass. 645,
654-655 (2018).
Shortly after midnight on June 2, 2019, the New Bedford
police responded to a report of a male victim who had been
beaten unconscious near Acushnet Avenue. A surveillance video
recording from a nearby residence captured the assault.
Detective Gangi testified that the recording showed a vehicle
parked in the back parking lot of a building. Moments later,
two men stepped out of the back seat of the vehicle and attacked
the victim. Next, the driver, later identified as the
defendant, and the front passenger stepped out of the vehicle
and approached the beating in progress. The front passenger
joined in the assault; the defendant did not. The defendant
did, however, place a hat over the victim's face following the
attack. The four men then returned to the vehicle and drove
away. Police tracked the vehicle by reviewing surveillance
video footage retrieved from the area. From this footage police
learned that the vehicle was a dark Nissan Altima, and that the
vehicle's driver's side headlight was out. Police also obtained
2 the vehicle's registration number from a license plate reader1 in
the area, which listed the defendant as the registered owner.
A few days later, police observed the Nissan parked on a
street near the defendant's residence. The vehicle was towed
and secured at a local New Bedford police station, known as
"station three," pending a search warrant. That afternoon, the
defendant and a companion arrived at station three and asked
about his missing vehicle. Detective Gangi was notified and
traveled to station three to speak with the defendant. When he
arrived, he met the defendant in the lobby and asked him if he
would accompany him and another detective to police headquarters
to discuss his vehicle. The defendant agreed, and the three
traveled to headquarters in an unmarked cruiser with no barrier
between the front seat and rear passenger seat. Consistent with
his general practice, Detective Gangi pat frisked the defendant
before having him sit in the back of the cruiser.
After a short drive, the three arrived at police
headquarters and Detective Gangi and his partner escorted the
defendant through a side entrance of the building to an
interview room. The detectives were dressed in plain clothes,
with their guns and badges visible. The defendant entered the
1 "Automatic license plate readers are cameras combined with software that allows them to identify and 'read' license plates on passing vehicles." Commonwealth v. McCarthy, 484 Mass. 493, 494 (2020).
3 interview room and sat down in a chair. He was not restrained
in any way. The detectives gave the defendant a cup of water
and left him alone for several minutes.
When the detectives returned, Detective Gangi thanked the
defendant for "coming down on [his] own time" and "[o]n [his]
own free will" to speak with them and advised the defendant that
they were investigating an incident that occurred Saturday night
into Sunday morning. Detective Gangi asked the defendant where
he was around that time. The defendant responded that he was
out drinking. Detective Gangi then asked if the defendant had
his vehicle that evening, to which the defendant stated that he
did. The defendant also acknowledged that his vehicle's
driver's side headlight was not functioning.
In response to further questioning about his whereabouts,
the defendant stated that he was at the Whiskey Lounge bar and
that he had left sometime between 11 P.M. and midnight. The
defendant was with three others; he stated that the only stop
they made after leaving the bar was to get food near Dean Street
and Coffin Avenue. In response, Detective Gangi advised the
defendant that "in that stretch, there's a lot of video," and
that he knew "exactly where [the defendant was]" and "what went
on." After the defendant denied that he had stopped anywhere
else, Detective Gangi told the defendant that he knew that the
defendant was not telling the truth and that he was going to
4 give him a couple of minutes "to think about what [he was]
saying," as the detectives were investigating "a serious
incident." He then left the room.
A few minutes later, Detective Gangi returned and provided
the defendant with Miranda warnings. After inquiring about the
nature of the police's investigation and his alleged
involvement, the defendant stated that he wanted an attorney.
Questioning then stopped and the detectives placed the defendant
under arrest.
The motion judge's findings on the tone and tenor of the
interview, with which we concur, see Tremblay, 480 Mass. at 656-
657, were as follows:
"Throughout the entire interview, the police were calm and polite toward the defendant. The questioning was not aggressive. They did not raise their voices. They did not pressure or trick the defendant. The tone was conversational. The defendant was able to and did ask questions. Even when Det. Gangi told the defendant that the investigation involved a serious matter and that they knew he was lying, Det. Gangi was respectful. Det. Gangi did not threaten the defendant in any way. He merely suggested that the defendant take some time to think about what he was saying. He told the defendant repeatedly that he did not have to talk to the police. When the defendant invoked his right to counsel, the police immediately respected that decision and terminated questioning."
b. Analysis. The defendant argues that the motion judge
erred in denying his motion to suppress statements he made to
the police. He contends that he was subject to a custodial
5 interrogation and thus the absence of Miranda warnings required
his statements to be suppressed.
"In reviewing a decision on a motion to suppress, we accept
the judge's subsidiary findings absent clear error, but conduct
an independent review of [the judge's] ultimate findings and
conclusions of law." Commonwealth v. Vasquez, 482 Mass. 850,
857 (2019), quoting Commonwealth v. Jones-Pannell, 472 Mass.
429, 431 (2015). We give due deference to the judge's findings
regarding the weight and credibility of witness testimony, see
Vasquez, supra, but otherwise conduct an independent review of
the documentary evidence, see Tremblay, 480 Mass. at 654-655.
Because the defendant's motion was made prior to trial, we
review its denial for harmless error. Commonwealth v. Chalue,
486 Mass. 847, 881 (2021).
It is well settled that the safeguards of Miranda only
apply when a defendant is subject to custodial interrogation.
See Commonwealth v. Larkin, 429 Mass. 426, 432 (1999). "An
interview is custodial where 'a reasonable person in the
suspect's shoes would experience the environment in which the
interrogation took place as coercive'" (citation omitted).
Commonwealth v. Amaral, 482 Mass. 496, 500-501 (2019). To
determine whether the defendant was in custody, we consider:
"(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that the person is a suspect; (3) the
6 nature of the interrogation, including whether the interview was aggressive, or, instead, informal . . .; and (4) whether, at the time the incriminating statement was made, the person was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with an arrest."
Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). "A
single factor rarely is determinative." Commonwealth v.
Cawthron, 479 Mass. 612, 623 (2018).
Here, the defendant voluntarily traveled with the
detectives to police headquarters to be interviewed.2 See
Commonwealth v. Rosa-Roman, 485 Mass. 617, 624-625 (2020), and
cases cited ("a defendant arriving voluntarily at a police
station would suggest that an interrogation there is
noncustodial"). Although the defendant was pat frisked before
entering the unmarked cruiser, he was not restrained in any way,
and the cruiser had no barrier between the front and rear seats.
See Commonwealth v. Molina, 467 Mass. 65, 66-67 (2014)
(defendant not in custody when officers asked if defendant would
go to police station to answer questions, he rode in police
cruiser to police station, and he was not handcuffed or under
arrest). The interview was less than ten minutes in duration.
At no point did the detectives reveal what crime was under
2 That the detectives used the defendant's car as a means to get him to come to headquarters for questioning is not material to our custody analysis. See Commonwealth v. Burbine, 74 Mass. App. Ct. 148, 149-152 (2009).
7 investigation, nor did they convey to the defendant that he was
a suspect.3 Further, the bulk of Detective Gangi's questions
were investigatory rather than accusatory. See Commonwealth v.
Vellucci, 98 Mass. App. Ct. 274, 279 (2020). The detectives
were calm, did not raise their voices, and the tone was
conversational throughout. Even when Detective Gangi told the
defendant that he knew the defendant was not being truthful, he
did so in a cordial manner. Cf. Molina, 467 Mass. at 74-75
(officer stood "almost over" defendant and "his tone was far
more argumentative and aggressive than the one he had previously
used"). We conclude that a reasonable person in the defendant's
position would not have experienced the environment as coercive
and therefore the defendant was not in custody and Miranda
warnings were not required. The defendant's motion to suppress
was properly denied.
2. Motions for required finding of not guilty. The
defendant next contends that the evidence presented at trial was
insufficient to prove that he engaged in a joint venture to
assault and batter the victim. In reviewing the denial of the
defendant's motions for required findings of not guilty, we
3 The defendant argues that any reasonable person in the defendant's shoes would have known they were a suspect. Even assuming that is true, it is not dispositive. See Commonwealth v. Welch, 487 Mass. 425, 436-437 (2021), and cases cited ("Although the defendant . . . believed he was a suspect, officers did not communicate this to him at the time").
8 consider 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).
"To support a conviction on a theory of joint venture
liability, it was the Commonwealth's burden to show that the
defendant (a) participated in the commission of the crime
charged, (b) did so knowingly, and (c) shared the required
criminal intent" (quotations and citation omitted).
Commonwealth v. Sanders, 101 Mass. App. Ct. 503, 508 (2022). A
fact finder is permitted to "infer the requisite mental state
from the defendant's knowledge of the circumstances and
subsequent participation in the offense" (citation omitted).
Commonwealth v. Lendon, 35 Mass. App. Ct. 926, 927 (1993).
"'[T]here is no need to prove an anticipatory compact between
the parties to establish joint venture' if, 'at the climactic
moment the parties consciously acted together in carrying out
the criminal endeavor'" (citations omitted). Commonwealth v.
Sexton, 425 Mass. 146, 152 (1997).
Here, the Commonwealth presented at trial, among other
evidence, the surveillance video recording of the assault. The
footage showed the defendant drive the three assailants to and
9 from the scene of the assault. The defendant parked his vehicle
in the entrance of a back parking lot and shut off the lights.
Once the victim passed by, two of the assailants stepped out of
the vehicle, confronted him, and attacked him. Moments later,
the defendant and front seat passenger also stepped out of the
vehicle and jogged over to the scene, while leaving the
vehicle's front doors open. While the defendant is correct that
he never joined in the assault, once the attack ended, he placed
the victim's cap over his facial injuries while he lay
motionless on the ground. The defendant then ran back to the
vehicle and drove himself, along with the three assailants, away
from the scene. Three days later, the defendant lied to
detectives about his whereabouts around the time of the assault.
See Commonwealth v. Jones, 477 Mass. 307, 317 (2017) (lying to
police about whereabouts at time of murder is evidence of
consciousness of guilt). Contrary to the defendant's assertion,
from this evidence the jury could readily infer that the
defendant was present at the scene and ready, able, and willing
to assist in the commission of the crime, whether that be in the
attack of the victim or in escaping from the scene. See
Commonwealth v. Simpkins, 470 Mass. 458, 462 (2015) (knowing
participation in crime may "take[] the form of agreeing to stand
by at, or near, the scene of the crime to act as a lookout, or
to provide aid or assistance in committing the crime, or in
10 escaping, if such help becomes necessary" [citation omitted]).
See also Commonwealth v. Chhim, 447 Mass. 370, 378-379 (2006)
("The jury could have inferred from the fact that the defendant
remained at the scene during th[e] brutal beating that he kept
himself in a position ready and able to help the other attackers
. . . [and] that [he] was willing and available to assist in the
getaway of the joint venturers after the beating ended"). It
follows that there was sufficient evidence for the jury to
reasonably conclude that the defendant knowingly participated in
and shared the requisite intent to commit the crime of which he
was convicted,4 assault and battery by means of a dangerous
weapon, causing serious bodily injury.5 The defendant's motions
for required findings of not guilty were properly denied.6
4 The defendant argues that his actions of rushing back to his vehicle and driving away is just as indicative of panic of an individual unknowingly involved in an assault as it is of consciousness of guilt. "To support a joint venture conviction, [however,] 'the inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable'" (citation omitted). Commonwealth v. Stokes, 440 Mass. 741, 745 (2004). 5 There is no dispute whether there was sufficient evidence to
satisfy the underlying elements of assault and battery by means of a dangerous weapon, causing serious bodily injury. See Commonwealth v. Brule, 98 Mass. App. Ct. 89, 93-94 (2020). 6 We have also considered "the state of the evidence at the close
of all the evidence, to determine whether the Commonwealth's position as to proof deteriorated after it closed its case" (citation omitted). Commonwealth v. Alden, 93 Mass. App. Ct. 438, 445 (2018), cert. denied, 139 S. Ct. 2010 (2019). The only witness for the defense was the defendant. Because "the jury were free to disbelieve the defendant's account, there was nothing compelling in this evidence which caused the
11 3. Prosecutorial misconduct. Finally, the defendant
argues that the prosecutor improperly cross-examined him about
his prearrest silence, and commented on the same during closing
argument. Because the defendant did not object to the
prosecutor's questions during cross-examination,7 or the
prosecutor's closing argument, we review for error amounting to
a substantial risk of a miscarriage of justice. See
Commonwealth v. McGann, 484 Mass. 312, 322 (2020).
On direct examination, the defendant testified that he
placed a hat over the victim's face because he "felt bad" and
"got scared." He explained that he was "scared . . . [he] was
going to get hurt with the people that did the attack. [He]
didn't know if . . . they were going to try to . . . hurt [him]
at the time." The defendant further testified that he did not
call 911 because "[he] was with the people that did this, and
[he] was in fear for [his] life, and [his] family." The
defendant now argues that the prosecutor's questioning during
cross-examination on his prearrest silence went beyond a fair
response to his direct examination, and should have been limited
to his alleged fear.
prosecution's case to deteriorate." Id. at 445-446, quoting Commonwealth v. Walker, 401 Mass. 338, 343-344 (1987). 7 Defense counsel did successfully object to the form of some of
the prosecutor's questions. However, as the defendant appears to concede, these objections did not preserve the issue now argued on appeal.
12 "In general, impeachment of a defendant with the fact of
his prearrest silence should be approached with caution, and,
wherever it is undertaken, it should be prefaced by a proper
demonstration that it was 'natural' to expect the defendant to
speak in the circumstances." Commonwealth v. Nickerson, 386
Mass. 54, 62 (1982). Assuming we agree with the defendant that
it would not have been "natural" to expect him to report the
assault to police in these circumstances, and thus some of the
prosecutor's questions during cross-examination and comments
during closing were improper, we discern no substantial risk of
a miscarriage of justice.
Here, the defendant's prearrest silence was brought to the
jury's attention by the defendant. On cross-examination, the
prosecutor asked the defendant several questions regarding his
failure to report what happened. Each question was followed by
an objection from defense counsel, which was sustained as to
form. Again, even assuming error, we conclude that these
questions were "not likely to influence, or even to seize the
attention of the jury" (citation omitted). Commonwealth v.
Johnson, 32 Mass. App. Ct. 989, 992 (1992).
The prosecutor later elicited testimony from the defendant
confirming that he did not call 911, or in any way report the
crime, on the night of the assault, during the three days
thereafter, or when he arrived at station three to inquire about
13 his vehicle. The prosecutor's questions on this point were
brief, however, and they did not detract from the defendant's
defense at trial -- i.e., that he was scared to report the three
assailants he was with to the police. Had the jury credited the
defendant's account, "the jury could well have viewed the
defendant's failure to [report the crime to] police to have been
the product of fear" of retaliation from the assailants.
Sanders, 101 Mass. App. Ct. at 514.
We also conclude that the prosecutor's challenged comments
during closing do not warrant reversal. The prosecutor was
entitled to respond to the defendant's claim that he was scared
for his life. See Commonwealth v. Fernandes, 478 Mass. 725, 741
(2018) (prosecutor entitled to respond to defendant's argument
and point out weaknesses in defendant's case). In short, we
discern no impropriety in the prosecutor's closing argument.8
And, as argued by the Commonwealth, even assuming error, the
8 The defendant also argues that the prosecutor's comments during closing argument referencing the victim "still laying on the ground waiting for some assistance" as the defendant drove by, followed by a remark stating that the defendant only cared about his missing car, improperly disparaged the defendant's testimony and was an appeal to the jury's sympathy. See Commonwealth v. McLeod, 30 Mass. App. Ct. 536, 538-539 (1991). We disagree, and conclude that the prosecutor's remarks fall within the scope of proper argument in the circumstances of this case. The lack of an objection during the prosecutor's closing remarks is "some indication that the tone, manner, and substance" of the argument were not unfairly prejudicial. Commonwealth v. Toro, 395 Mass. 354, 360 (1985).
14 prosecutor's challenged comments would not have materially
influenced the jury's verdict given the evidence presented. See
Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Moreover, the
judge properly instructed the jury that closing arguments of
counsel are not evidence, and on the limitations of
consciousness of guilt evidence.9
Conclusion. We discern no error, either individual or
cumulative, giving rise to prejudice or a substantial risk of a
miscarriage of justice.
Judgment affirmed.
By the Court (Sullivan, Desmond & Singh, JJ.10),
Clerk
Entered: May 12, 2023.
9 The defendant did not request an instruction advising the jury that they should not consider his prearrest silence for purposes of impeachment unless they found that the defendant naturally should have spoken in the circumstances. See Nickerson, 386 Mass. at 62. 10 The panelists are listed in order of seniority.