Opinion
No. 15–P–1255.
12-07-2016
COMMONWEALTH v. John GRAHAM.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, John Graham, appeals from his convictions on a number of charges, all stemming from two incidents: the October 10, 2011, shooting death of Ciaran Conneely and the October 30, 2011, robbery and shooting of John Bui and Huoang Yo. The grand jury returned a separate indictment for each incident. The defendant argues that the judge abused his discretion by allowing the Commonwealth's motion for joinder of the two indictments. We affirm.
Background. In the early morning of October 10, 2011, Ciaran Conneely was shot and killed near his home on Nahant Avenue in the Dorchester section of the city of Boston. Detectives suspected that the firearm was a revolver because there were no shell casings recovered from the scene. A .22 caliber projectile was recovered from the victim's body and submitted for ballistics testing.
The defendant's friend, Joel Winslow, testified at trial that the defendant, who at the time of the shooting was residing with Winslow, came to his apartment and told him that he had just shot an older white man after attempting to rob him. Winslow testified that the defendant told him that he had approached a man in the area of Adams Street in Dorchester, demanded money, and counted down from five. The defendant told Winslow that the victim did not speak English, and when the defendant reached the end of the count, he shot the victim.
Twenty days later, on October 30, 2011, John Bui and Hoang Vo were walking in the area of Dorchester Avenue and Monsignor Lydon Way when they passed a man sitting on a stoop. The man asked Bui and Hoang Vo for a cigarette; they responded that they did not have any cigarettes and walked away. Shortly thereafter, the same man pulled out a revolver, demanded money, and began counting down from five. Before the robber reached the end of the count, Bui interrupted and began to walk away. The robber opened fire on Bui and Hoang Vo, shooting Bui four times and Hoang Vo once. Both men survived. Ballistics evidence revealed that the firearm used in the shootings of Bui and Hoang Vo was the same one used in the shooting of Conneely.
Following the October 30, shooting, the defendant again fled to Winslow's apartment. Upon entering, the defendant told Winslow that he had attempted to rob and then shot two Asian men. He described his robbery attempt as brandishing a gun, demanding money, counting down from five, and opening fire when the victims did not comply.
Upon his arrest, the defendant was charged on two indictments with murder, three counts of armed assault with intent to rob in violation of G.L. c. 265, § 18, two counts of carrying a firearm without a license in violation of G.L. c. 269, § 10, one count of assault with intent to murder while armed, one count of aggravated assault and battery by means of a dangerous weapon in violation of G .L. c. 265, § 15A, and one count of assault and battery by means of a dangerous weapon. The Commonwealth filed a motion for joinder of the two indictments. On December 26, 2013, following a hearing, the judge issued a comprehensive written memorandum of decision explaining why he allowed the Commonwealth's motion for joinder.
The jury found the defendant not guilty of murder, one count of armed assault to rob, and one count of possession of a firearm. The jury found the defendant guilty on the remaining charges. The defendant appeals, arguing that joinder was improper because the incidents were not sufficiently related and had the effect of exposing the jury to prejudicial propensity evidence.
Discussion. We review the judge's decision to join charges for abuse of discretion. See Commonwealth v. Pillai, 445 Mass. 175, 179–180 (2005) ( Pillai ). See also Commonwealth v. Aguiar, 78 Mass.App.Ct. 193, 198–199 (2010) (Aguiar ). Offenses may be joined when the evidence "in its totality shows a common scheme and pattern of operation that tends to prove all the indictments." Commonwealth v. Delaney, 425 Mass. 587, 594 (1997), cert. denied, 522 U.S. 1058 (1998). The defendant "bears the burden of demonstrating that the offenses were unrelated, and that prejudice from joinder was so compelling that it prevented him from obtaining a fair trial." Pillai, supra at 180, quoting from Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005). In deciding whether to join cases, a judge may consider factors such as "the time and place of the charged offenses, the presence of factual similarities suggesting a common modus operandi, and whether evidence in the trial of one offense would be admissible in the separate trial of another." Commonwealth v. Magri, 462 Mass. 360, 364 (2012) (citations omitted).
Rule 9(a)(1) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 859 (1979), states that offenses are related "if they are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan."
a. Relationship between the incidents. When determining whether offenses are related, "[f]actors such as time and location play an important role," as well as similarities in the facts of the incidents that demonstrate a common modus operandi. Commonwealth v. Wilson, 427 Mass. 336, 345 (1998). See Commonwealth v. Ferraro, 424 Mass. 87, 89–91 (1997). In this case, the motion judge reasonably concluded that the charges were sufficiently related under Mass.R.Crim.P. 9(a)(1), 378 Mass. 859 (1979), because the October 10, and October 30, incidents were based on a series of criminal episodes that had a significant number of similarities.
One such similarity is the time and location of the incidents. See Pillai, supra. The incidents not only occurred within a span of three weeks, they also took place within the same general area of Dorchester, near a friend's home where the defendant often stayed. This close time frame and distance are similar to Commonwealth v. Sullivan, 436 Mass. 799, 804–805 (2002), in which the Supreme Judicial Court concluded that where robberies occurred within "the same general geographic region" of neighboring towns and within two weeks of one another, the judge did not abuse his discretion in deciding that the crimes were sufficiently connected. Furthermore, the time range here is far shorter than that in Pillai, where the Supreme Judicial Court determined that the judge did not abuse her discretion in deciding that a range of multiple months between episodes was still sufficient to support a finding that the incidents were related. Pillai, supra at 182. See also Commonwealth v. Mamay, 407 Mass. 412, 417 (1990) (reaching similar conclusion for offenses occurring within eight months of one another).
Other factual similarities between the incidents provide additional support for the motion judge's finding. See Pillai, supra at 180, quoting from Commonwealth v. Feijoo, 419 Mass. 486, 494–495 (1998) ("Offenses are related if ‘the evidence in its totality shows a common scheme and pattern that tends to prove’ each of the complaints"). First, ballistics evidence revealed that the same weapon was used in the October 10, and October 30, incidents. Second, the manner of the robberies was similar in both incidents: an assailant approached the victim(s) from behind, brandished a revolver, demanded money, and began a count down from five to zero before firing. Third, after both incidents, the defendant fled to Winslow's home, where he contemporaneously admitted to the shootings. Based on these similarities in perpetrating the robberies and shootings and the subsequent escape, the judge was warranted in finding that the incidents were sufficiently related. See Agiuar, supra at 204 (upholding joinder based on "a common method of operation"). See also Pillai, supra; Feijoo, supra.
b. Prejudice. The defendant argues that evidence from the two incidents constituted prejudicial propensity evidence which influenced the jury toward guilty verdicts. "The propriety of joining offenses for a single trial often turns on whether evidence of the other offenses would be admissible in separate trials on each offense." Pillai, supra. In this case, the defendant was not prejudiced because even if the trials had been severed, it is likely that the evidence from each trial would have been admissible in the other trial. The distinctive manner in which the robberies occurred, coupled with the fact that the same gun was used in both crimes, linked the two incidents together in a way that makes it likely that the Commonwealth would satisfy the requirements for admission of other bad acts. See Mass. G. Evid. § 404(b) (2016). See also Pillai, supra; Commonwealth v. Blackmer, 77 Mass.App.Ct. 474, 481–482 (2010).
The defendant also argues that the list of combined charges, which included murder, unduly influenced the jury to find him guilty, which ultimately led to a "compromise verdict." This claim is based purely on speculation. See Commonwealth v. Wilson, 427 Mass. at 346–347 ("It is not enough for the defendant to show merely that his chances for acquittal would have been better had the indictments been tried separately"). Furthermore, the fact that the jury acquitted the defendant on three of the charges, including murder, while convicting him on the remaining charges suggests that the jury considered each charge separately. Commonwealth v. Spray, 467 Mass. 456, 469 (2014), quoting from Commonwealth% v. Green, 52 Mass.App.Ct. 98, 103 (2001) ("Such discernment by the factfinder in assessing the evidence is a strong indication that a misjoinder of offenses has not resulted in any actual prejudice to the defendant").
Judgments affirmed.