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14-P-1208                                             Appeals Court

                    COMMONWEALTH   vs.   JOSE LUGO.


                           No. 14-P-1208.

        Suffolk.       November 9, 2015. - March 18, 2016.

            Present:    Cypher, Trainor, & Rubin, JJ.


Assault and Battery by Means of a Dangerous Weapon. Joint
     Enterprise. Evidence, Joint venturer, Knife. Practice,
     Criminal, Argument by prosecutor, Instructions to jury.



     Indictments found and returned in the Superior Court
Department on June 27, 2012.

    The cases were tried before Linda E. Giles, J.


     Jacob B. Stone for the defendant.
     Matthew T. Sears, Assistant District Attorney (Megan E.
O'Rourke, Assistant District Attorney, with him) for the
Commonwealth.


    CYPHER, J.     The defendant, Jose Lugo, appeals from his

convictions by a jury of assault and battery with a knife,

assault and battery with a shod foot, and assault with a knife.

He argues that the trial judge's denial of his motions for a

required finding of not guilty was error because there was
                                                                    2


insufficient evidence of his participation in a joint venture to

support his convictions of assault and battery with a knife and

assault with a knife.   He claims error also in the prosecutor's

closing argument and the jury instructions on prior inconsistent

statements.   We affirm the defendant's convictions.

    Background.     On April 12, 2012, friends Victor Ramos,

Milton Henriquez, Edwin Colon, and Alejandro Naranjo spent the

evening together at a Boston nightclub.   At closing time, around

2:00 A.M., the four friends returned to their car, which was

parked across the street in a multilevel garage.   Waiting in a

line of vehicles to exit the garage, the friends were approached

by a man from a vehicle in front of theirs who, thinking that

they had been honking the horn, punched Colon and Naranjo

through their open passenger's side windows.   The four friends

got out of their car and Henriquez traded blows with the man

before being separated by the friends and others from

surrounding vehicles.

    When the brawl subsided and the crowd of people who had

gathered to watch or take part in the fight began to disperse, a

sport utility vehicle (SUV) from an upper level of the garage

approached the area and stopped and two men emerged.    One was a

tall, skinny man, later identified as Javier Fernandez, and the

other was a short man with braids, later identified as the

defendant.    According to testimony by Ramos, the two men
                                                                    3


appeared to be intoxicated and angry, "[L]ike they wanted to do

something."

       After greeting and shaking hands with people from the

surrounding vehicles, the two men approached Ramos and Henriquez

and engaged them in a tense verbal exchange.    During the

exchange, Fernandez and the defendant stood side by side facing

Ramos, and Henriquez stood behind Ramos, facing the defendant.

Fernandez and the defendant talked to Ramos and Henriquez, but

did not speak to one another.    Ramos, attempting to defuse the

situation, suggested that they all go home and touched Fernandez

on the shoulder or arm, provoking Fernandez, who asked, "[A]re

you disrespecting me?"   Fernandez left the group and went back

to the SUV while the defendant continued talking to Ramos and

Henriquez.

       Returning from the SUV, Fernandez circled around the group

and, approaching Henriquez, stabbed him in the side, under his

armpit.    Henriquez put his hand on Ramos's shoulder and declared

that he had just been stabbed.   Ramos saw a knife in Fernandez's

hand as Fernandez stepped forward, twice jabbing the knife at

him.    Ramos grabbed Henriquez and took off running up a ramp to

an upper level of the garage.    Fernandez and the defendant

immediately gave chase, running shoulder to shoulder with

another man, identified only as wearing a black polo shirt.    As

Ramos and Henriquez ran, Fernandez stabbed at Henriquez, who
                                                                      4


stumbled and fell to the ground.     Fernandez slashed and stabbed

at Henriquez and the defendant kicked and stomped on him as he

lay on the ground.

    Security guard Jeffrey Swanson testified that he observed

the defendant stomping on Henriquez with the open sole of his

shoe, "like he was trying to put out a fire."      While Henriquez

was being kicked and stabbed, Ramos grabbed hold of him and

tried to drag him away from the assailants.      The attack, which

lasted about two or three minutes, was interrupted when security

guards arrived and ordered the men to stop.

    As the security guards assessed the situation and waited

for police to arrive, they observed the defendant walking

briskly away from the scene and Fernandez throwing a knife under

a car.   The two men were detained by security personnel.      When

police arrived, Ramos pointed out the defendant and Fernandez as

the men who had attacked Henriquez.      Sergeant Michael Talbot

testified that while the defendant was in custody at the police

station, his behavior was combative and he refused to allow

Talbot to photograph a scratch on his hand.      A bloodstain taken

from the chest area of defendant's outer shirt was determined to

be consistent with Henriquez's deoxyribonucleic acid profile.

    Discussion.      1.   Sufficiency of the evidence.   The

defendant moved for a required finding of not guilty at the

close of the Commonwealth's case and again at the close of all
                                                                     5


the evidence.   He claims that these motions were improperly

denied because the evidence failed to prove that he participated

in a joint venture with knowledge that his companion was armed

with a knife.   In reviewing the denial of a motion for a

required finding, we examine the relevant evidence in the light

most favorable to the Commonwealth and ask whether "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 from Jackson v. Virginia, 433

U.S. 307, 319 (1979).   "We take this view of the evidence

notwithstanding any evidence to the contrary presented by the

defendant."   Commonwealth v. Garcia, 470 Mass. 24, 30 (2014),

quoting from Latimore, supra at 676–677.

    In reviewing the sufficiency of the evidence on a theory of

joint venture, we must determine whether the evidence presented

supports a finding that "the defendant knowingly participated in

the commission of the crime charged, alone or with others, with

the intent required for that offense."     Commonwealth v. Norris,

462 Mass. 131, 138–139 (2012), quoting from Commonwealth v.

Zanetti, 454 Mass. 449, 468 (2009).     In addition, where, as

here, "the conviction on a joint venture theory is for a crime

that has use or possession of a weapon as an element," the

evidence must suffice to show that the defendant knew that his
                                                                     6


coventurer was armed with a knife.      Commonwealth v. Britt, 465

Mass. 87, 100 (2013).

       There was testimony at trial that the defendant and

Fernandez were friends who had spent the evening together before

they arrived on the scene.      The defendant participated in the

verbal exchange with Ramos and Henriquez and witnessed

Fernandez's escalating agitation during the encounter.        The

defendant stood in a position, facing Ramos and Henriquez, where

he could observe Fernandez circle around and stab Henriquez in

the side.      After Henriquez announced that he had been stabbed,

the jury could also have inferred that the defendant could see

Fernandez jab the knife twice at Ramos.1      The defendant

immediately took off with Fernandez in pursuit of Ramos and

Henriquez and, when Henriquez was on the ground, the defendant

kicked and stomped on him while Fernandez repeatedly stabbed

him.       "At no time during this conflict did the defendant seek to

withdraw."      Commonwealth v. Sexton, 425 Mass. 146, 152 (1997).


       1
       See Commonwealth v. White, 452 Mass. 133, 136 (2008)
(inference drawn from circumstantial evidence "need only be
reasonable and possible; it need not be necessary or
inescapable," nor must every inference "be premised on an
independently proven fact" [citations omitted]); Commonwealth v.
Lee, 460 Mass. 64, 69-70 (2011) (knowledge that coventurer is
armed may be inferred from circumstantial evidence, including
defendant's actions, prior relationship between coventurers, or
shared motive); Commonwealth v. Dosouto, 82 Mass. App. Ct. 474,
480 (2012) (circumstances properly permitted jury to infer that
defendant knew gun was used to commit robbery where defendant
getaway driver watched crime unfold).
                                                                     7


    From the defendant's actions, a rational trier of fact

could conclude, beyond a reasonable doubt, that the defendant

possessed the intent to engage in an assault on Ramos and in an

assault and battery on Henriquez with Fernandez, and that the

defendant was present and saw that Fernandez was armed with a

knife the moment Fernandez first stabbed Henriquez.

Additionally, the defendant was kicking Henriquez as Fernandez

stabbed at him.    "There is no need to have an 'anticipatory

compact.'    It is enough that 'at the climactic moments the

parties consciously acted together in carrying out the criminal

endeavor.'"    Commonwealth v. Young, 35 Mass. App. Ct. 427, 435

(1993), quoting from Commonwealth v. Fidler, 23 Mass. App. Ct.

506, 513 (1987).

    2.      Prosecutor's closing argument.   The defendant

challenges certain portions of the prosecutor's closing

argument, claiming numerous reversible errors.     In particular,

he claims that the prosecutor made an improper propensity

argument, argued facts not in evidence, misstated evidence,

suggested that she had independent knowledge of the truth,

engaged in burden-shifting, and repeatedly used the term

"victim," in violation of the judge's pretrial order.        The

challenged statements to which the defendant timely objected --

concerning propensity, facts not in evidence, and burden-

shifting -- we review for prejudicial error.      See Commonwealth
                                                                     8


v. Silva-Santiago, 453 Mass. 782, 807-810 (2009).    The portions

of closing argument to which the defendant did not object but

challenges now on appeal -- concerning the suggestion of

independent knowledge, misstatement of evidence, and use of the

term "victim" -- we review for any "substantial risk of

miscarriage of justice."    Commonwealth v. Alphas, 430 Mass. 8,

13 (1999).   "Remarks made during closing arguments are

considered in context of the whole argument, the evidence

admitted at trial, and the judge's instructions to the jury."

Commonwealth v. Whitman, 453 Mass. 331, 343 (2009).

    a.   Propensity argument.    Referring to evidence of the

defendant's consciousness of guilt, the prosecutor stated,

"[T]he defendant had been convicted of this behavior in the

past, resisting arrest.    Well we can see that here today, right,

he tried to walk away once from the security, once from the

Boston police."   To the extent that the prosecutor's remark

equated the defendant's prior conviction with a propensity to

evade responsibility in the present circumstances, it was

improper.    "It is a fundamental rule that the prosecution may

not introduce evidence that a defendant previously has

misbehaved, indictably or not, for the purpose of showing his

bad character or propensity to commit the crime charged."

Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 312 (2011),

quoting from Commonwealth v. Baker, 440 Mass. 519, 529 (2003).
                                                                   9


See Commonwealth v. Chartier, 43 Mass. App. Ct. 758, 763 (1997)

(in using defendant's prior convictions in substantive sense,

"prosecutor strayed over boundary of permissible argument").

    Whether the prosecutor's propensity argument constitutes

reversible error "depends on our consideration of (1) whether

the defendant seasonably objected; (2) whether the error was

limited to collateral issues or went to the heart of the case;

(3) what specific or general instructions the judge gave the

jury which may have mitigated the mistake; and (4) whether the

error, in the circumstances, possibly made a difference in the

jury's conclusions."   Silva-Santiago, supra at 807, quoting from

Commonwealth v. Perez, 444 Mass. 143, 151 (2005).

    As the defendant objected to the prosecutor's argument, we

review for prejudicial error.   The improper statement addressed

only a collateral issue, that is, the defendant's consciousness

of guilt, as opposed to any essential element of the crimes

charged.   See Commonwealth v. Jones, 432 Mass. 623, 629 (2000)

(prosecutor's erroneous remark was aimed only at collateral

issue, not heart of defendant's case).   Both before and after

closing arguments, the judge instructed the jury that those

arguments are not a substitute for evidence.   See Commonwealth

v. O'Connell, 432 Mass. 657, 660 (2000), citing Commonwealth v.

Thomas, 400 Mass. 676, 683 (1987) (prosecutor's inaccurate

statement "regrettable," but not reversible error "where judge
                                                                    10


instructed jury that closing arguments [are] not evidence").

Viewed in the context of the prosecutor's entire argument, the

judge's instructions to the jury, and the evidence at trial, an

isolated reference to the defendant's prior conviction, a fact

that defense counsel had preemptively introduced through the

defendant's testimony, did not make a difference in the jury's

conclusion.

     b.   Facts not in evidence.   The defendant next argues that

the prosecutor's description of "a fresh scrape with blood on

it" on the defendant's finger improperly suggested a fact not in

evidence.    "A prosecutor must limit comment in closing statement

to the evidence and fair inferences that can be drawn from the

evidence."    Commonwealth v. Cole, 473 Mass. 317, 333 (2015),

quoting from Commonwealth v. Kelly, 417 Mass. 266, 270 (1994).

Contrary to the defendant's assertion, the prosecutor's

description did not introduce a fact not found in evidence.

Rather, it directly reiterated testimony presented at trial.     We

discern no error.2


     2
       Sargent Talbot's testimony included the following
exchange:

     Q.: "Okay how could you tell the scratch on Mr. Lugo's hand
     was fresh?"

     A.: "It had fresh blood on it; it had a redness around the
     cut itself that led me to believe that it was something
     that occurred recently as opposed to something that was a
     day or two old."
                                                                    11


     c.   Burden-shifting.   The defendant objected also to what

he characterizes as burden-shifting by the prosecutor.    He

contends that, in telling the jury to weigh the defendant's

testimony against the testimony of the Commonwealth's witnesses,

the prosecutor impermissibly suggested that the defendant has an

affirmative duty to produce evidence of his innocence.3   A

prosecutor may not "make statements that shift the burden of

proof from the Commonwealth to the defendant."    Commonwealth v.

Johnson, 463 Mass. 95, 112 (2012), quoting from Commonwealth v.

Amirault, 404 Mass. 221, 240 (1989).    However, a "prosecutor is

entitled to emphasize the strong points of the Commonwealth's

case and the weaknesses of the defendant's case."    Id. at 113,

quoting from Commonwealth v. Feroli, 407 Mass. 405, 409 (1990).

Here, the prosecutor's statement emphasized the discrepancies

between the defendant's testimony and the testimony of all the

other witnesses.   While the prosecutor's statement, "there is no

corroboration for his version," is a type of statement to avoid,

the argument as a whole cannot be properly characterized as


     3
       Commenting on the defendant's credibility, the prosecutor
told the jury:

     "Think of the interest he has, he's the only evidence; his
     version is the only evidence that presents him breaking up
     a fight. Think of the interest he has in the outcome of
     the case and why would he want you to believe that version
     verses [sic] all the other witnesses, all the other
     evidence you sat through the last couple of days. I submit
     to you there is no corroboration for his version."
                                                                    12


burden-shifting, but, rather, as a fair comment on the

credibility of the defendant.     See Commonwealth v. Storey, 378

Mass. 312, 325 (1979), cert. denied, 446 U.S. 955 (1980) ("The

prosecutor's objective, as revealed in the context of [her]

closing argument, was simply to defend [her] credibility, and

that of [her] case, by pointing out contradictions and

inconsistencies in the witness's testimony").

     d.   Independent knowledge of the truth.   The defendant

argues for the first time on appeal that the prosecutor

improperly suggested to the jury that she had independent

knowledge of the truth when she asserted that the Commonwealth's

witnesses were credible "because they told you what actually

occurred."4   As the defendant did not object to this portion of

the closing argument, we review the statement for a substantial

risk of miscarriage of justice.    See Alphas, 430 Mass. at 13.

     "Improper vouching can occur if an attorney expresses a

personal belief in the credibility of a witness, or indicates

that he or she has knowledge independent of the evidence before

the jury."    Commonwealth v. Wilson, 427 Mass. 336, 352 (1998).

Here, consideration of the argument as a whole persuades us that

the "prosecutor did not imply that [s]he had 'special knowledge


     4
       The prosecutor told the jury: "I submit to you the
victims are credible not only because they told you what
actually occurred[,] but they are supported by the evidence of
the other witnesses."
                                                                   13


by which [s]he could verify the witness's testimony.'"

Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 189 (2009),

quoting from Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989).

Rather, her statement was part of an appeal to the jury to draw

the reasonable conclusion from the witnesses' conforming

testimony that those witnesses should be believed, a proper line

of argument where credibility is at issue.     See Commonwealth v.

Deloney, 59 Mass. App. Ct. 47, 52 (2003) (prosecutor's comments

did not suggest that she possessed knowledge of facts not

contained in evidence).

     e.   Misstatement of evidence.   The prosecutor asserted in

closing that the defendant's story was not believable in part

because, had he been involved in breaking up a fight as he

claimed to have been, "there would be more injuries, there would

be more bruising."5   The defendant now contends that, in light of

Sargent Talbot's testimony that bruising takes a day or two to

appear, the prosecutor misstated the evidence.     We conclude that

there was no error.   "In closing argument, counsel may argue

from the evidence and may argue fair inferences that might be

drawn from the evidence.   Counsel also may call on the

experience and common knowledge of the jury.     Moreover, it is

proper for counsel to use analogy, example and hypothesis as an

     5
       The prosecutor stated: "I submit to you that if he was
really breaking up a fight as he would want you to believe,
there would be more injuries, there would be more bruising."
                                                                    14


aid to effective and aggressive argument."     Commonwealth v.

Ridge, 455 Mass. 307, 330 (2009) (citations and quotations

omitted).   See Commonwealth v. Donovan, 422 Mass. 349, 357

(1996) (prosecutor has right to argue inferences from evidence

favorable to his case).

    f.   Use of the term "victim".    Referring to Ramos and

Henriquez, the prosecutor used the term "victim" eleven times in

the course of her closing argument.     In view of the judge's

allowance of the defendant's motion in limine prohibiting the

use of the term in favor of "alleged victim," the prosecutor's

use of the term was error.    Although defense counsel raised

objections to certain other portions of the prosecutor's closing

argument, he did not object to her characterization of the

witnesses as "victims."    Therefore, "the proper standard of

review is whether the error[] created a substantial risk of a

miscarriage of justice."     Commonwealth v. Letkowski, 469 Mass.

603, 617 (2014).

    The absence of an objection also guides our analysis as to

whether the lapse was prejudicial to the defendant in the

circumstances.   "We consider . . . the lack of objection at

trial as 'some indication that the tone [and] manner . . . of

the now challenged aspects of the prosecutor's argument were not

unfairly prejudicial.'"    Dodgson, 80 Mass. App. Ct. at 313,

quoting from Commonwealth v. Lyons, 426 Mass. 466, 471 (1998).
                                                                  15


"This is especially true, where, as here, contemporaneous

objections were made to the prosecutor's summation."

Commonwealth v. Walker, 421 Mass. 90, 104 (1995).

    Moreover, in the context of the evidence at trial, any risk

of a miscarriage of justice was mitigated by the defendant's

stipulation to the fact that Henriquez was stabbed on that

occasion by the defendant's friend, Fernandez.   Thus,

Henriquez's identity as a victim was not in question, only the

defendant's culpability in that attack.   We are confident that

the error, in these circumstances, did not create a substantial

risk of a miscarriage of justice.

    3.   Judge's instruction on prior inconsistent statements.

The defendant claims that the judge's instruction on prior

inconsistent statements was unclear and failed to provide the

jury with a proper understanding of how such statements may be

considered.   At trial, defense counsel objected to the judge's

charge limiting the use of prior inconsistent statements to

credibility purposes, and requested, instead, an instruction

permitting the jury to consider inconsistent statements made to

the grand jury for their substantive value.

    The judge's instruction on prior inconsistent statements,

though somewhat ambiguous, limits consideration of such

statements to credibility purposes:
                                                                   16


     "If you determine the witness's prior statement differs
     significantly from his or her present testimony[,] the
     prior statement is relevant only as to the witness's
     credibility and you may not take it as any proof of any
     fact contained in it except in the case of a parties [sic]
     prior statement."

     As a general rule, a trial witness's prior inconsistent

statements are not admissible for their substantive truth.      See

Mass. G. Evid. § 613(a)(2) (2015).   However, "[w]hen a trial

witness offers testimony that is directly inconsistent with that

witness's testimony before the grand jury, the inconsistent

grand jury testimony may be introduced substantively if certain

foundational requirements . . . are met."   Commonwealth v.

Santos, 463 Mass. 273, 294 (2012).   See Commonwealth v. Daye,

393 Mass. 55, 75 (1984); Mass. G. Evid. § 801(d)(1)(A) (2015).

     Here, defense counsel confronted three of the

Commonwealth's witnesses with grand jury statements that he then

sought to have considered substantively.6   The defendant asserts


     6
       Defense counsel introduced seven grand jury statements
into trial testimony:

     (1) Henriquez told the grand jury that while he was engaged
     in a fight (before the defendant arrived on the scene), he
     pushed an adversary toward the railing; at trial, he
     testified that he grabbed the man.

     (2) Referring to the defendant and Fernandez, Henriquez
     told the grand jury, "I was pushing him away, I was trying
     to push him away so trying to kick" and "basically trying
     to get him away but they didn't stab me again, they
     didn't"; at trial, he testified to being stabbed while on
     the ground, then kicked.
                                                                  17


that the prior statements have substantive value because they

corroborate his account of events.   Accepted for their truth and

as substantive evidence, the statements establish that Henriquez

was drunk at the time of the attack; he aggressively engaged in

a brawl before the defendant arrived on the scene; both the

defendant and Fernandez had knives and participated in stabbing

Henriquez; besides the defendant and Fernandez, a third man



    (3) Before the grand jury, Henriquez related that he had
    reported to a police officer that "[the defendant] was
    trying to stab me too because at the moment I just seen
    someone swinging a knife. It felt like they were both
    trying, they were -- both had knives"; at trial, on
    redirect, the prosecutor introduced the omitted portion of
    the grand jury statement, in which Henriquez said: "I was
    clearing out my thoughts, I believe it was just the one
    [stabber]."

    (4) Henriquez told the grand jury that he was chased by
    three men, but testified at trial that only the defendant
    and Fernandez chased him.

    (5) Naranjo told the grand jury that Henriquez and an
    adversary were "both drunk that it wasn't much of a fight,
    it kind of like pushing and misses and swings"; at trial,
    he testified, "I don't know how much he [Henriquez] drank
    so I can't say he was drunk."

    (6) Naranjo told the grand jury that, after the first bout
    of fighting died down, Henriquez and his adversary "started
    running at each other again, now a bigger scuffle
    happened"; at trial, he testified that a group of
    adversaries started pushing Ramos and Henriquez, reigniting
    the fight.

    (7) Swanson told the grand jury that he observed "the
    victim pulled out by his friend and the other two are sort
    of on the tail end, they are sort of maybe lightly
    kicking"; at trial, he described the defendant's kicking as
    "stomping down with the open soul [sic] of the foot."
                                                                  18


chased Henriquez up the garage ramp; once on the ground,

Henriquez was not stabbed again; and, when security guards

arrived, the defendant and Fernandez were kicking Henriquez

lightly.   None of these statements, considered for their truth

as substantive evidence, benefits the defendant's case.

Consequently, "[o]n the record before us, no prejudicial error

arose from the judge's decision not to instruct the jury that

they could consider prior inconsistent statements for their

substantive value."   Commonwealth v. Fritz, 472 Mass. 341, 353

(2015).

     Finally, for the first time on appeal, the defendant claims

that a series of other, unsworn, prior inconsistent statements

should also have been considered substantively, and that the

judge's instruction to the contrary created a substantial risk

of miscarriage of justice.7   While the defendant is correct in


     7
       The defendant points to ten prior inconsistent statements
made to police or medical personnel:

     (1) Ramos told a police officer that he touched the
     defendant's shoulder and said, "hey, bud, let's calm this
     down";

     (2) Ramos also told police that the defendant and Fernandez
     both stabbed Henriquez;

     (3) and (4) Henriquez, too, told police that both the
     defendant and Fernandez stabbed him;

     (5) and (6) Henriquez told a police officer that he saw two
     individuals with knives, and that he distinctly remembered
     seeing the defendant with a knife;
                                                                  19


asserting that prior inconsistent statements may properly be

considered for their truth if admitted without objection, see

Mass. G. Evid. § 613(a)(2), these statements, considered

substantively, do not constitute evidence favorable to the

defendant.   The conflicts between trial testimony and prior

statements served, rather, to focus the jury's attention on the

credibility of the Commonwealth's witnesses.   In view of this,

we discern no risk of miscarriage of justice arising from the

judge's instruction.

                                    Judgments affirmed.




    (7) Henriquez told a police officer that four to six
    unknown men initiated the brawl in the parking garage;

    (8) and (9) Henriquez's medical records indicted heavy
    alcohol use and a diagnosis of closed head injury; and

    (10) Henriquez told medical personnel that he did not see
    his assailants.
