SJC Justices Disagree as to Effect of Prosecutor's Seemingly Inconsistent Statements at Two Separate Trials

January 22, 2014
By Parker Scheer LLP on January 22, 2014 1:22 PM |

This week, a 4-3 Massachusetts Supreme Judicial Court (SJC) decision highlighted the justices' conflicting views on the prejudicial effect on a criminal defendant when a prosecutor urges a jury to believe that one person was the principal actor in a murder at one trial, and, failing to convince that jury, urges a different jury to believe that the defendant pulled the trigger in the defendant's subsequent trial.

In Commonwealth v. Keo, Keo faced a charge of first degree murder in the shooting death of the victim, who was a member of a rival gang, in Lynn in November 2007. The evidence in that case suggested that, on that date, Bonrad Sok had called Keo, and Keo joined Sok and others at a restaurant where the victim and his girlfriend were also present. About five weeks prior to that time, the victim had stabbed Keo.

After Sok and two others attempted to jump the victim outside of the restaurant, the victim ran inside the restaurant and a fight occurred, during which the victim's girlfriend observed Sok hitting the victim. The fight was broken up, and the group was thrown out of the restaurant. Outside, the victim and his girlfriend stood by the victim's car. The victim's girlfriend saw Sok and other two men from the group walk past them and some distance away. With all three men facing the victim, Sok exchanged words with the victim. The victim was then shot in the torso, and later died at the hospital from the wound. No one, including the victim's girlfriend, saw who shot the gun. The victim's girlfriend did not remember seeing Keo either inside or outside the restaurant. In a search of his home, the police recovered .22 caliber ammunition from Keo's bedroom. The police never recovered the gun that was used in the murder.

Forensic evidence suggested that the victim was shot from no further away than four feet. The victim's girlfriend was unable to quantify the distance between Sok and the others and her and the victim at the time of the shooting. However, two witnesses testified that Sok had admitted to shooting the victim. Two other witnesses testified that Keo made certain statements that suggested his involvement in the shooting, but that Keo had no intention of harming the victim when he went to the restaurant.

Prior to Keo's trial, Sok was tried and convicted of murder in the second degree as a joint venturer. At Sok's trial, the prosecutor urged the jury to believe that Sok was the person who pulled the trigger. In his closing argument, the prosecutor stated that Keo brought the gun to the restaurant, and Sok shot it, killing the victim. The prosecutor correctly told the jury that, in order to convict Sok of the murder, they did not need to find that Sok was in fact the shooter. The jury convicted Sok only as a joint venturer in the crime, indicating that they did not believe Sok shot the gun.

However, six months later at Keo's trial, the very same prosecutor urged a new jury that Keo "is the shooter, that's what all the evidence shows," and contended that Sok could not have been the shooter. Again, the prosecutor alerted the jury that they could convict Keo, even if they did not believe he was the shoote,r under the theory of joint venturer. The jury found Keo guilty of murder in the first degree.

Keo appealed, claiming ineffective assistance of counsel for his trial counsel's failure to attempt to use the prosecutor's statements during his closing argument in Sok's trial saying that Sok was the shooter. He claimed that, had his attorney attempted and been permitted to admit the prosecutor's prior statements into evidence at his own trial, that may have been enough to create reasonable doubt in the jurors' minds as to which person shot the gun.

Four SJC justices declined Keo's request for a new trial. The majority reasoned that, even if Keo's trial counsel had attempted to admit the prosecutor's statements from Sok's trial, such evidence would have been inadmissible. They further reasoned that even if they had been admissible, such statements would not likely have influenced the jury's verdict and thus did not result in unfair prejudice to Keo.

However, Justice Gants pointed out what he believed to be inherent flaws in the majority's reasoning. Importantly, while Justice Gants acknowledged that Keo could have been convicted even if the jury had not found him to be the shooter, he pointed out that such a conviction would have been much more difficult, because the evidence required for that conviction was much weaker. In other words, if the jury had believed that Sok was the shooter - as the admission of the prosecutor's prior statements would have suggested - then the jury would have to go an extra step to find that Keo shared Sok's premeditation and intent to kill the victim in order to convict him as a joint venturer. Had the jury been made aware of the prosecutor's prior advocacy against Sok as the shooter, that information, coupled with the remaining evidence in the case, may have been sufficient to create reasonable doubt in their minds as to Keo's direct participation and his intent.

Quoting a federal case, Justice Gants penned his concern that the majority's decision "would not only invite abuse and sharp practice [by prosecutors] but would also weaken confidence in the justice system itself by denying the function of trials as truth-seeking proceedings." With this concern shared by two other SJC justices, but the majority's opinion prevailing as binding, the issue may be later reconsidered by the Court. The opportunity to revisit the issue may come soon, as Sok's appeal of his conviction is pending before the Massachusetts Appeals Court, and could be further appealed to the SJC thereafter.