Commonwealth v. Leach

901 N.E.2d 708, 73 Mass. App. Ct. 758, 2009 Mass. App. LEXIS 265
Massachusetts Appeals Court·Decided February 27, 2009·No. No. 07-P-1336·Published·Cited by 12 cases

Opinion

Graham, J.

After a trial that resulted in a hung jury, a second Superior Court jury convicted each of the defendants, John P. Dosreis, Jeffrey M. Fonseca, Kevin L. Fonseca, and Charles D. Leach (collectively, defendants), of one count of assault and battery by means of a dangerous weapon, and three counts of assault by means of a dangerous weapon, on a joint venture theory.

On appeal, we address claims that (1) the judge erred in denying motions for required findings of not guilty because the evidence was insufficient to prove involvement in a joint venture to commit the crimes (made by Dosreis, Jeffrey,2 and Kevin); (2) the judge improperly allowed in evidence statements of the defendants under the joint venture exception to the hearsay rule; (3) the judge abused his discretion by denying the motions to sever (made by Dosreis and Jeffrey); and (4) the prosecutor committed several errors during his closing argument, thereby depriv[760] ing the defendants of a fair trial. Dosreis separately contends that the evidence presented to the grand jury was insufficient to establish probable cause to arrest and indict him. We find no merit to any of the claims and, accordingly, affirm the convictions.

Facts. The jury could have found the following facts. At approximately 7:45 p.m., on April 9, 2004, brothers Claudio and Jair Monteiro, their cousin Gilson Monteiro, and Antonio Pires were standing in the driveway of the brothers’ home at 249 Green Street in Brockton, when gunfire erupted. One of the bullets hit Pires in the leg, near his knee. Pires and Jair3 turned and each saw a green motor vehicle driving past them, away from the scene, Jair observing that the vehicle was being pursued by a police cruiser.4 The cruiser was operated by Brockton police Officer James F. Sniger, a thirty-year police veteran who had been at the comer of Green and Lexington Streets, about seventy feet from 249 Green Street, responding to an unrelated call.

After hearing six or seven gunshots coming from the area of 249 Green Street, Sniger saw a green sport utility vehicle (SUV) heading west, and accelerating, on Green Street. Concluding that the SUV was connected to the shooting, Sniger activated the cruiser’s lights and siren, and followed the SUV, never losing sight of it. The SUV stopped behind a car at a posted stop sign at the intersection of Green and Highland Streets, some 700 feet from 249 Green Street. Jeffrey was in the driver’s seat, his brother Kevin was in the passenger’s side front seat, Dosreis was in the driver’s side rear seat, and Leach was in the passenger’s side rear seat. The windows on the driver’s side of the vehicle were rolled up, while the rear passenger’s side window was rolled almost all the way down and the front passenger’s side window was partially down. Once back-up officers arrived, Sniger ordered the defendants out of the vehicle, arrested them, and advised them of their Miranda rights. The defendants later were transported to the Brockton police station.

After the defendants were arrested, the additional Brockton [761] police officers who had arrived at the scene of the shooting walked in an easterly direction on Green Street. On the front lawn of 291 Green Street,* 5 ten feet from the sidewalk, the police found a firearm later identified to be the one used in the shooting, a silver nine millimeter Smith and Wesson. The hammer of the loaded gun was in a cocked position and the ammunition clip was in the gun. A short distance west of 249 Green Street, the police retrieved several spent shell casings later determined to have been fired from the firearm recovered from 291 Green Street.

Meanwhile, at the Brockton police station, Brockton police Detective George Almeida, who is fluent in Cape Verdean Creole and in English, entered the police holding cell area and positioned himself behind a wall so that he was out of the view of the suspects. There he recorded, in shorthand, the defendants’ conversations with each other. At trial, Almeida’s testimony included portions of the statements of the defendants while they were in separate holding cells at the station. The first two defendants brought to the holding cells were Kevin and Dosreis, who made the following statements:6

Kevin: “Yo. We’re lucky they didn’t catch us with the gun.”
Dosreis: “Yeah, dog.”
Kevin: “If my bail’s like 5G’s, I’m out of here. I’m going to Cape Verde.”
Kevin: “Yo, the dog found that shit. Did they tell you?”
Dosreis: “Yeah.”
Kevin: “We’re fucked. They’re probably going to find that shit on the dude’s hands.”
[762] Kevin: “They’re probably going to find it on all of us.”

Detective Almeida temporarily left the holding cell area while Jeffrey and, later, Leach were placed in separate holding cells near Kevin and Dosreis. Almeida then transcribed the following comments:

Leach: “Yo, they just shipped our clothes. Yo Dos . . . . I should have just ran ... on that old mother fucker. Yo, someone’s dropping dime.”
Kevin: “Yeah, I think it’s you.”
Leach: “No. Someone from Green Street. Yo Dos . . . [tjhem niggers were scared, huh?”
Kevin and Dosreis: “Yo, shut the fuck up.”
Dosreis: “Yo, Charlie? Don’t say nothing about that thing,™ okay? . . . Don’t say nothing about that tip, okay?”
Leach: “Okay. I know. I know.”7 8

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Commonwealth v. Leach, 901 N.E.2d 708, 73 Mass. App. Ct. 758, 2009 Mass. App. LEXIS 265 (Mass. Ct. App. 2009).

901 N.E.2d 708 (Commonwealth v. Leach) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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