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-932
COMMONWEALTH
vs.
VINCENTE DEJESUS, JR. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the District Court, the defendant was
convicted of resisting arrest and found not guilty of disturbing
the peace. On appeal, the defendant argues that the trial judge
abused her discretion by admitting evidence that the police
arrested him on suspicion of brandishing a firearm, that the
arresting officers were members of the gang unit, and that one
of the officers was fearful during the arrest because he had a
family; as well, the defendant argues the judge erroneously
denied his motion for a mistrial. We vacate the defendant's
conviction.
1 We spell the defendant's name as it appears in the criminal
complaint. The defendant informs us that the correct spelling
of his first name is Vicente.
1. Gun evidence. Prior to trial, two counts of the
criminal complaint, including a charge of assault with a
dangerous weapon, were dismissed. At the outset of the trial,
the defendant moved in limine to preclude the police witnesses
from testifying that the arrest he was accused of resisting was
based on information that he had brandished a handgun during a
road rage incident, the basis for the dismissed assault charge.
The Commonwealth argued that such evidence was necessary to
explain why the police were arresting the defendant and the
strong showing of force they used when they did. The judge
agreed with the Commonwealth and denied the motion, but she
stated the evidence was limited "to putting the actions of the
police in context." Before opening statements, the judge
instructed the prosecutor on the parameters of her ruling:
"I'm allowing you to put into context the reason that so
many police officers arrived, or they arrived in the manner
in which they did; that information had come to them that
someone had pointed a gun or whatever it is that was given
to them.
"But you're going to -- Commonwealth, you're going to need
to make clear as you put it in context that there was no
gun found. There was no gun charge." 2
2 After the defendant's arrest, the police obtained a search
warrant for a different car, which belonged to the defendant,
and found a BB gun. The defendant was never charged with
unlawful possession of any firearm, and as the charge of assault
with a dangerous weapon had been dismissed, the judge ruled
clearly and unequivocally that the later discovery of a BB gun
would not be admitted.
2
In the first sentence of her opening, the prosecutor stated
that the police "received information that a civilian had
pointed a firearm, a gun, in the face of two other individuals."
Defense counsel immediately objected that saying "in the face"
was a prejudicial characterization of the anticipated evidence.
The judge sustained the objection, told the jury to disregard
the statement, and ordered the prosecutor to start again. The
prosecutor reopened, stating that the police heard information
that someone "had brandished a firearm at two individuals."
The defendant preemptively objected before the first
witness, Officer Jared Brady, broached the subject. The
prosecutor was permitted to lead the witness, and Brady
testified that prior to the defendant's arrest, Brady received
information that "a firearm had been brandished" by a person in
the target vehicle. He also testified that he shielded himself
behind the door of his cruiser when he initiated the arrest
"[b]ecause there was a threat of a firearm used" and, for the
same reason, that he drew his own firearm when it appeared that
the defendant was reaching for something. On cross-examination,
defense counsel elicited testimony that no gun was found.
Officer Kevin DeCarvalho also testified, over objection,
that he responded to a report that the police were looking for
someone who had brandished a firearm. Captain Megan Pare then
testified, without objection, that the police were investigating
3
a "road rage incident" in which someone had smashed another
car's window with a handgun. When this evidence was admitted
through the testimony of the three officers, the defendant did
not request a limiting instruction, and the judge did not give
one. The prosecutor's closing argument emphasized that the
police's mindset and actions during the arrest were in response
to the report that the suspect had brandished a gun. No
limiting instructions were requested, or given, during the final
charge.
The defendant argues that the evidence suggesting he had
brandished a gun against two individuals prior to the arrest was
not relevant, and that any relevance was outweighed by the risk
of unfair prejudice. We review a judge's decision to admit
evidence, and the balancing of probative value versus unfair
prejudice, for abuse of discretion. See Commonwealth v.
Philbrook, 475 Mass. 20, 26 (2016); Commonwealth v. McGee, 467
Mass. 141, 156 (2014).
The judge did not abuse her discretion in determining that
the evidence was relevant to provide context for the arrest.
"[A]n arresting or investigating officer should not be put in
the false position of seeming just to have happened upon the
scene; he should be allowed some explanation of his presence and
conduct" (quotation omitted). Commonwealth v. Doyle, 83 Mass.
App. Ct. 384, 389-390 (2013). The evidence was also relevant to
4
explain the degree of force used to arrest the defendant,
particularly where a theme of the defense was that the police
employed unreasonable force against him, warranting him to
resort to self-defense during the arrest.
We conclude, however, that the judge abused her discretion
in weighing the probative value of the evidence against the risk
of unfair prejudice. "The introduction of evidence that a
defendant possessed a weapon on a prior occasion creates a risk
that the jury will use the evidence impermissibly to infer that
the defendant has a bad character or a propensity to commit the
crime charged." McGee, 467 Mass. at 156. The risk that the
jury will engage in propensity reasoning can be mitigated by
delivering careful limiting instructions. See Commonwealth v.
West, 487 Mass. 794, 807 (2021); Commonwealth v. Wardsworth, 482
Mass. 454, 471-472 (2019); Commonwealth v. Roe, 90 Mass. App.
Ct. 801, 807-808 (2016). Accordingly, when considering whether
unfair prejudice outweighs probative value, judges must consider
the effectiveness of limiting instructions in minimizing the
risk of unfair prejudice. See Commonwealth v. Samia, 492 Mass.
135, 148 n.8 (2023); Roe, supra at 807.
As a general rule, a judge is not required to give limiting
instructions if a defendant does not request them. See
Commonwealth v. Teixeira, 486 Mass. 617, 629 n.7 (2021);
Commonwealth v. Leonardi, 413 Mass. 757, 764 (1992). Here,
5
however, the judge recognized the potential volatility of the
gun evidence and specifically conditioned its admission on the
context it provided for the magnitude and manner of the police
response. Despite opportunities to do so -- contemporaneous
with the three officers' testimony regarding the firearm, and in
her final instructions to the jury -- the judge did not explain
to the jury the limited purpose of the evidence. Without such
guidance from the judge, the jury could consider that the
defendant had reportedly threatened people with a firearm as
evidence of his criminal propensity or guilt. See Roe, 90 Mass.
App. Ct. at 808 ("Although there is no requirement that the
judge give limiting instructions sua sponte," reversible error
to admit propensity evidence where "jury received no guidance
regarding how they should consider the potentially prejudicial
testimony"). Contrast Commonwealth v. Grant, 71 Mass. App. Ct.
205, 210-211 (2008) (in resisting arrest case, permissible for
police to explain they were executing arrest warrant for
defendant, where judge "handled this difficult matter properly"
by repeating forceful, targeted limiting instructions). The
judge's decision to admit this evidence with no limitation on
its use was a clear error of judgment falling outside the range
of reasonable alternatives. See Roe, supra at 807.
Because the defendant sought to exclude the evidence in his
motion in limine, the issue is preserved for appellate review.
6
See Commonwealth v. Grady, 474 Mass. 715, 718-719 (2016).
Accordingly, we must determine whether the error was
prejudicial. "An error is not prejudicial if it 'did not
influence the jury, or had but very slight effect'; however, if
we cannot find 'with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error,'
then it is prejudicial." Commonwealth v. Cruz, 445 Mass. 589,
591 (2005), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353
(1994). We address the question of prejudice infra.
2. Gang evidence. The defendant also moved in limine to
exclude evidence that Brady was part of his department's "gang
unit." The judge denied the motion, reasoning that it was "part
of [Brady's] job." At trial Brady testified repeatedly that he
was a "gang detective" in the "gang unit" for two years of his
service, including on the day of the defendant's arrest. In
addition to Brady, DeCarvalho testified that he got involved in
the arrest after receiving a radio transmission from the gang
unit, and that the gang unit was present when he arrived on the
scene. Pare testified on direct that she too was a member of
the gang unit at the time of the arrest. In closing argument,
the prosecutor encouraged the jury to recall that Brady was a
7
member of the gang unit and was trained in investigating
firearms when evaluating Brady's conduct during the arrest. 3
We agree with the defendant that the officers' membership
in the gang unit had little probative value. We also agree that
its relevance was substantially outweighed by its unfair
prejudicial effect, suggesting that the defendant was a gang
member and that the firearms incident that prompted his arrest
was gang related. See Commonwealth v. Carter, 488 Mass. 191,
206-207 (2021), citing Commonwealth v. Lopes, 478 Mass. 593, 604
(2018) (caution urged in admitting gang-related evidence because
of risk of suggesting that defendant may have propensity for
criminality or violence). To the extent the evidence was
relevant to show that the officers had training in firearms
arrests, it could have been offered without reference to gangs.
Accordingly, it was an abuse of discretion to admit this
evidence.
3. Evidence designed to elicit sympathy. On redirect,
apparently to explain DeCarvalho's lack of memory of certain
details and his use of profanity during the arrest, the
prosecutor questioned him extensively about his adrenaline,
stress, and anxiety levels, and his fear during the arrest,
3 As the judge had denied the motion in limine and permitted the
evidence to be introduced, it was proper for the prosecutor to
discuss it in her summation.
8
particularly as it involved the threat of a firearm. At the end
of this line of questioning, DeCarvalho testified that he was
twenty-eight years old and had a family and two children. The
defendant did not then object but claims on appeal that this
testimony was irrelevant and unfairly prejudicial, as it sought
to invoke sympathy for DeCarvalho. See Commonwealth v. Gordon,
422 Mass. 816, 831 (1996) ("We urge caution in admitting
evidence in criminal cases that appears to be more related to
evoking sympathy then to proving the elements of the alleged
crime or crimes"). We agree that this evidence should not have
been solicited or admitted. As the defendant did not object, we
review this error to determine whether it created a substantial
risk of a miscarriage of justice. See Commonwealth v. Alphas,
430 Mass. 8, 13 (1999).
4. Motion for mistrial and cumulative error. As noted
supra, the judge permitted the Commonwealth substantial leeway
in introducing evidence that the arrest was prompted by a report
that a firearm had been brandished, and, during closing
argument, the prosecutor emphasized that the police were
concerned that the defendant might have a gun. When she argued
that the police were conducting "a legitimate investigation into
a violent offense involving a firearm" and that they "responded
to that threat appropriately," defense counsel objected. At
sidebar, the judge reminded the prosecutor that she had been
9
instructed to make it clear that no gun was found. The
prosecutor resumed her argument, "They responded to a firearm.
They searched the vehicle. They found not a firearm in that
car" (emphasis added). Defense counsel immediately objected but
before he could state the basis for the objection the judge
interrupted to admonish the prosecutor, "You know you weren't
supposed to say not in that car . . . [y]ou were fine till you
[threw] in, not in that car." The transcript makes it obvious
that the judge understood the prosecutor's reference to not
finding a gun in "that" car as suggesting to the jury a fact not
in evidence -- that the police in fact found a gun albeit in a
different car. Indeed, the prosecutor defended herself at
sidebar by stating, "Judge, it's misleading to say there was no
gun . . . [t]here was a gun found."
Referring to facts not in evidence during closing argument
is improper. See Commonwealth v. Alvarez, 480 Mass. 299, 305
(2018); Commonwealth v. Holt, 77 Mass. App. Ct. 716, 721 (2010).
Defense counsel moved for a mistrial, which the judge denied,
and the prosecutor resumed by saying, "They searched the car and
there was no gun found in the car."
The defendant argues that the judge abused her discretion
by not declaring a mistrial. We do not reach this argument,
however, because we conclude that the admission of gun evidence
without limiting instructions, repeated references to the gang
10
unit, and testimony about DeCarvalho's family and children
collectively amounted to reversible error requiring a new trial.
See Commonwealth v. Kozec, 399 Mass. 514, 525-526 (1987);
Commonwealth v. Mazzone, 55 Mass. App. Ct. 345, 353 (2002).
Standing alone, the chance that the jury was swayed by
sympathy for DeCarvalho and his family may not have created a
substantial risk of a miscarriage of justice. But the evidence
of reports that the defendant had earlier brandished a firearm,
multiple references to the gang unit, to which defendant's
counsel objected, and the prosecutor's implication that a gun
was found in a different car amounted to prejudicial error. The
jury were left with the impression that the defendant was a gun-
carrying gang member. We cannot say with fair assurance that
the improper evidence suggesting the defendant's criminal
11
propensity did not influence the jury or had but very slight
effect in finding him guilty of resisting arrest. 4
Judgment vacated.
Verdict set aside.
By the Court (Massing,
Henry & Brennan, JJ. 5),
Clerk
Entered: November 8, 2023.
4 We acknowledge that the defendant's acquittal on the charge of
being a disorderly person is some indication that the jury was
not swayed by the improper evidence. However, the acquittal can
also be explained by the fact that the disorderly person charge
was almost completely ignored at trial, no evidence of the
effect of the defendant's conduct on the public was presented,
and neither attorney addressed the elements of disorderly
conduct in their closings.
5 The panelists are listed in order of seniority.
12