This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
We have before us the direct appeals of two defendants, Johan Garcia and Daniel Ek, who were indicted as a result of an early morning brawl that took place on August 21, 2009, on Columbus Avenue in Boston, between two groups of patrons of a nearby nightclub that had just closed for the night. The indictments charged murder in the second degree of Jose Alicea, assault and battery by means of a dangerous weapon (shod foot) on Omar Castillo, assault and battery by means of a dangerous weapon (shod foot) on Gregory Pimental-Perello (hereinafter, Pimental), assault and battery on Pimental, assault and battery on Castillo, and assault and battery on Japhet Mendoza. Garcia was convicted after jury trial of the lesser included offense of involuntary manslaughter of Alicea, assault and battery by means of a dangerous weapon (shod foot) on Pimental, assault and battery on Pimental, and assault and battery on Castillo. Garcia was acquitted of the two other charges. Ek also was convicted of the lesser included offense of involuntary manslaughter on Alicea, assault and battery by means of a dangerous weapon on Pimental, assault and battery on Pimental, and assault and battery on Castillo. Ek was acquitted of the other two charges.
We turn first to the defendants' sufficiency of the evidence arguments. Garcia argues that the evidence was insufficient to prove his participation as a joint venturer in the crimes of which he was convicted. As the judge instructed the jury, the defendants could be convicted upon proof beyond a reasonable doubt that each " knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense." Commonwealth v. Zanetti, 454 Mass. 449, 468, 910 N.E.2d 869 (2009). Compare Commonwealth v. Britt, 465 Mass. 87, 100-101, 987 N.E.2d 558 (2013). The question before the jury was whether with respect to each act, the killing of Alicea and the assaults and batteries of the other victims, Garcia either actually assaulted the victim or was present at the scene with the knowledge that another intended to commit the crime or with the intent to commit the crime, and by agreement was willing and available to assist if necessary. See Commonwealth v. Soares, 377 Mass. 461, 471-472, 387 N.E.2d 499, cert denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979) (" if an individual is, by agreement, in a position to render aid, he is an abettor even if he does not participate in the actual perpetration of the crime, for the presence of the abettor under such circumstances, must encourage and embolden the perpetrator to do the deed, by giving him hopes of immediate assistance" [citations omitted]). See also Commonwealth v. Deane, 458 Mass. 43, 50, 934 N.E.2d 794 (2010). Garcia argues that the evidence established no more than his presence in the vicinity of the assaults with no witness positively identifying his participation in any one specific assault.
In assessing this claim, we must view the evidence and all the reasonable inferences that may be drawn therefrom in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). Viewing the evidence in this light, the jury could have found that the killing of Alicea and the three other assaults of which Garcia was convicted, one on Castillo and two on Pimental, all occurred in spatial and temporal proximity, within three minutes of 2:05 a.m. on the day in question. The jury also could have found that the individual beatings were all part of an ongoing fight between the two groups. Prior to riding in a limousine to Boston, the members of the group that contained Garcia and Ek all had attended the funeral of a mutual friend. Many in the group were wearing black, tuxedo-type clothing with red vests, the decedent's favorite colors (hereinafter, the tuxedo group). The other group included the victims of the assaults.
The fight commenced in response to Alicea's taunting of members of the tuxedo group with profane language and racial epithets, challenging them to a fight despite the fact that he and his companions were substantially outnumbered. Pimental and Alicea were standing together, exchanging insults with the tuxedo group. The exchange became more heated, and at about 2:05 a.m., the tuxedo group charged Alicea, punching and kicking him. Castillo had been trying to get Alicea to leave, but once he realized the futility of that attempt, he retreated across the street, but slipped and fell, at which point some members of the tuxedo group quickly attacked Castillo, punching, kicking, and stomping on him. Shortly thereafter, the group also attacked Pimental, who was on the opposite side of the street from Castillo, and who had been retreating and fighting off members of the tuxedo group. There was testimony that at some point Pimental got away from the tuxedo group, but was chased and fell, and members of the tuxedo group continued kicking him, in a continuation of their fight with him. The jury could have found that some members of the tuxedo group returned towards the limousine before some members, including Ek and Garcia, decided to go back to where the kicking of Pimental continued. There was also testimony the jury could have credited that the beatings of these three victims overlapped and were going on at the same time.
The jury could have found that the beatings of Pimental and Castillo were motivated solely by the fact that they were accompanying Alicea. There was testimony that could have been credited by the jury that none of the members of the tuxedo group who approached the location of any of the beatings held back or hung back. This testimony sufficed to support an inference that any member of the tuxedo group who was present in the vicinity of the beatings shared the intent of those who punched, kicked, or otherwise hit a victim, and was by agreement ready and willing to help.
We recognize that " presence with knowledge of the planned act is insufficient alone to convict a person for the acts of another." Commonwealth v. Soares, 377 Mass. at 471. However, given the facts of this case, in which the assaults were essentially continuous -- either overlapping or immediately following one another -- and the group members' identities were readily discernible, evidence of participation in either the initial assault on Alicea or the assaults on Castillo or Pimental, which took place at the same time, was sufficient to support a jury finding that Garcia and Ek were not merely present at the other assaults, but instead were " by agreement, in a position to render aid . . . even if [they did] not participate in the actual perpetration of" one or another of the assaults. Id. at 471-472.
The Commonwealth presented evidence at trial that after the melee, when the police arrived, a bouncer from the nightclub identified for the police those among the tuxedo group who had been involved in the altercation. The bouncer showed some discernment, identifying two of the men in the tuxedo group, along with several of the women in the tuxedo group, as not having been involved. He identified Garcia as having participated in the melee. There was security camera footage that showed Garcia walking down Cahners Street towards the limousine on Stanhope Street immediately following the beatings of Alicea and Castillo, from which the jury could have inferred that he was one of the tuxedo group around the corner at the site of the altercation when Alicea, Castillo, and Pimental were being beaten.
The evidence set out above suffices to support Garcia's conviction of manslaughter. Regarding the assault of Castillo, Castillo testified that a smaller group of the tuxedo group rushed him and beat him, but because he was blindsided he could not identify the attackers, other than by their attire. The beating happened right as Pimental was attempting to back away and fend off attacks across the street. Castillo testified that no one charging at him was acting as a peacemaker. Because the jury could infer that the members of the tuxedo group participating in the altercation shared the requisite intent and were in a position to render aid, Garcia's conviction can stand for assaulting Castillo even absent direct evidence that he was in the smaller group who actually beat Castillo. Cf. Commonwealth v. Kilburn, 426 Mass. 31, 34 n.5, 686 N.E.2d 961 (1997) (" individuals may be considered present for joint venture purposes even where they are only in the vicinity of the crime" [citations omitted]). Garcia's concerted (with the tuxedo group) actions provide circumstantial evidence from which a jury could infer an implicit agreement to help members of the tuxedo group -- should they need it -- in the assault of Castillo. See Commonwealth v. Carroll, 439 Mass. 547, 554, 789 N.E.2d 1062 (2003) (affirming conviction on theory of joint venture because there was sufficient evidence to infer that the defendant " was willing to help [the coventurer] beat the victim when [the defendant] was present at the time [the coventurer] was carrying out that beating" ).
Likewise with the assaults on Pimental of which Garcia was convicted. There was indirect evidence placing him at the initial assault on Pimental -- namely security footage of Garcia walking from the area where Pimental initially was beaten, back to the limousine -- and at its dé nouement after Pimental's brief escape -- the same footage showing him returning, though this time with Garcia's figure somewhat less identifiable. Again, viewing the facts and making inferences in the light most favorable to the Commonwealth, presence and circumstantial evidence of intent suffice. The facts in Commonwealth
v Chhim, 447 Mass. 370, 378-379, 851 N.E.2d 422 (2006), are instructive: " During the time the defendant remained at the scene, the victim continued to be pummeled, kicked, and stabbed by several attackers and eventually fell to the ground to die. The jury could have inferred from the fact that the defendant remained at the scene during this brutal beating that he kept himself in a position ready and able to help the other attackers." As in Chhim, there was sufficient evidence to find that Garcia was present and ready to render aid during the assaults, even if he never personally struck a blow.
The case against Ek, whose clothes were torn and who had a cut on his hand after the fight, was at least as strong. The bouncer identified Ek as having participated in the melee and identified him as one of the more " aggressive" participants. Ek, whose appearance was distinctive -- he is an Asian man with braids and a teardrop tattooed under his right eye -- was also identified as having run to join the group that was beating Alicea.
Ek places great emphasis on the fact that one of the limousine drivers testified that the beating was coming to a conclusion when Ek arrived. This is not availing. To begin with, given the confusion at the scene, the jury need not have credited the testimony of that eyewitness as to the order in which the members of the tuxedo group ran past him to the scene of the beating. In any event, arriving as the beating is concluding to participate in the crime is not the same as arriving after the beating has concluded. See Commonwealth v. Tavares, 61 Mass.App.Ct. 385, 388, 810 N.E.2d 1242 (2004) (" A defendant need not be at the scene of a crime throughout its occurrence in order to be found a joint venturer" ).
As to his other convictions, the jury could infer that Ek was present for the assaults and, based on his being an aggressive participant in the initial deadly assault, also could infer that he was ready and willing to render aid. ...