# Commonwealth v. Keo

> Massachusetts Supreme Judicial Court · January 21, 2014 · 467 Mass. 25

URL: https://www.frixlaw.com/law-library/cases/6454975

## Case

- **Full name:** Commonwealth v. Kevin Keo
- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** January 21, 2014
- **Citations:** 467 Mass. 25; 3 N.E.3d 55; 2014 Mass. LEXIS 13; 2014 WL 185363
- **Precedential status:** Published
- **Opinion:** Dissent by Gants
- **Judges:** Gants, Ireland
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6454975

## Opinion text

Gants, J.
(dissenting, with whom Botsford and Lenk, JJ., join). In his closing argument in the trial of Bonrad Sok, the prosecutor began by telling the jury, “The defendant [Sok] shot and killed Christian Martinez on November 1st of 2007.” He later argued, “Kevin [Keo] brought the gun and Bonrad [Sok] shot it.” He said that when the victim left the restaurant the second time, when the shooting occurred, “that’s when Bonrad [Sok] had the gun, as again [sr'c] Kevin [Keo], with [Keo’s] dominant hand with the limited mobility, that’s what happened.” In that argument, the prosecutor addressed the testimony of Kathleena Am, who testified that after the shooting, while sitting in an automobile with Sok and Keo, she heard one of them say, “I shot him; I shot him in the heart.” Although Am said she did not know who had made that statement, the prosecutor asserted he could tell the jury “where it came from. It came from him [pointing at Sok].”
However, six months later, in the trial of Keo for the same crime, the same prosecutor, based on what the Commonwealth and the court concede was essentially the same evidence, told a *48 different story to the jury in his closing argument. Here, he argued that Keo “is the shooter, that’s what all the evidence shows.” He said, “It couldn’t have been Bonrad [Sok],” because the fatal shot was fired from within four feet of the victim, and Sok was approximately thirty feet from the victim at the moment of the shooting. Addressing the testimony of Am, who at Keo’s trial testified that Sok had admitted to being the shooter, the prosecutor said that, even if Sok had said that, the inference that he was “confessing right there . . . just flat-out can’t be true based on the evidence.”
In each case, the prosecutor also pursued a joint venture theory, and told the jury that they could convict even if they found that Keo (in the Sok trial) or Sok (in the Keo trial) was the shooter. But a joint venture theory was far harder for the prosecution to prove. Based on the evidence, it reasonably could be inferred that Sok telephoned Keo when he saw the victim at the restaurant, and that Keo then arrived at the restaurant with a gun. When the victim left the restaurant, Keo remained in the restaurant, but Sok, Maverick Tran, and Vannarith Chhay followed the victim out, confronted him outside the restaurant, and assaulted him, but did not shoot him. It was only after the victim unexpectedly returned to the restaurant after this confrontation that he got into a fight with Keo, Sok, Tran, and Chhay, and was shot at close range shortly after he again left the restaurant. There can be no doubt that the shooter intended with premeditation to kill the victim. But if Sok was the shooter, there certainly could have been a reasonable doubt whether Keo shared Sok’s premeditation and intent to kill, particularly where Sok did not kill the victim when he first had the chance outside the restaurant and where Keo could not reasonably have anticipated that the victim would return to the restaurant.
No doubt recognizing the weakness in the Commonwealth’s joint venture theory, Keo’s counsel rested his defense on the argument that Sok was the shooter. That defense would have been immeasurably stronger had defense counsel offered in evidence, as admissions of an opposing party, statements made by the prosecutor in his closing argument in the Sok trial, because the prosecutor told the jury in that trial what defense counsel was arguing in the Keo trial. But Keo’s defense counsel did not *49 seek to do so. The court concludes that defense counsel’s failure to offer these admissions in evidence is without consequence because: (1) the prosecutor’s statements would not have been admissible in evidence if offered; (2) even if these statements were admissible their admission would not likely have influenced the jury’s verdict; and (3) the verdict is consonant with justice under G. L. c. 278, § 33E, even though the jury never learned that the same prosecutor in his closing argument in the Sok trial had declared that Sok was the shooter. I disagree with each of these three conclusions, and therefore respectfully dissent. 1
Before commencing my critique of the court’s opinion, let me first be clear as to what I am not contending. I do not contend that the prosecutor was legally barred from arguing at Keo’s trial that Keo was the shooter where he had argued at Sok’s trial that Sok was the shooter, or that Keo’s right to due process was violated by his doing so. A prosecutor may argue any theory of criminal liability supported by the evidence, and is not bound in a subsequent case to a theory argued in an earlier case. See Commonwealth v. Housen, 458 Mass. 702, 709 (2011).
What I do contend is that, although the Commonwealth may take “the same evidentiary clay” it used in the Sok trial and “resculpt” it in a subsequent trial to transform Keo from an aider and abettor to a shooter:
“[t]he jury [are] at least entitled to know that the government at one time believed, and stated, that its proof established something different from what it currently claims. Confidence in the justice system cannot be affirmed if [the Commonwealth] is free, wholly without explanation, to make a fundamental change in its version of the facts between trials, and then conceal this change from the final trier of the facts.”
United States v. Salerno, 937 F.2d. 797, 812 (2d Cir. 1991), rev’d on other grounds, 505 U.S. 317 (1992), quoting United States v. GAF Corp., 928 F.2d 1253, 1260 (2d Cir. 1991). 2
*50 1. Admissibility of the prosecutor’s inconsistent statements in closing argument in the Sok trial. In Commonwealth v. Ar-senault, 361 Mass. 287, 298 (1972), this court held “that in the second trial of a defendant, the defendant was not entitled to introduce the prosecutor’s closing argument made at his first trial ‘as an admission by the Commonwealth.’ ” See ante at note 21. In Arsenault, the prosecutor had argued in the first trial, at which Arsenault was tried with his alleged joint ventur-ers, Arthur L. Devlin and Russell R LeBlanc, “that the defendant LeBlanc was the ‘finger man’ for the robbery which resulted in the alleged murder, that he had selected the house in which the robbery would be committed and that he had brought the defendant and Devlin there for that purpose.” Id. at 297 . At the second trial, which occurred fifteen years later, and where Arsenault was the only defendant, the prosecutor argued that “Arsenault looked at a house and said, ‘That looks like a good place to rob. Let’s rob that house.’ ” Id. The Arsenault court affirmed the judge’s exclusion of the prosecutor’s prior assertions in his opening statement and closing argument in the second trial, stating, “Admittedly the two trials proceeded on different theories of the defendant’s part in the crimes, but the trial of a case on one theory does not, without more, constitute an admission by a party who proceeds on a different theory in a retrial of the case.” Id. at 298 .
The court correctly states that “our earlier holding in Commonwealth v. Arsenault, 361 Mass. [at 298], that in the second trial of a defendant, the defendant was not entitled to introduce the prosecutor’s closing argument made at his first trial ‘as an admission by the Commonwealth, ’ is no longer sound precedent.” Ante at note 21. The court then proceeds to create its own unsound precedent, effectively resurrecting the same holding it just buried.
*51 The court acknowledges that we have stated that prosecutors “are agents of the State.” Commonwealth v. Tucceri, 412 Mass. 401, 406 (1992). See ante at 39-40. The court also acknowledges that numerous Federal courts, including the United States Court of Appeals for the First Circuit, have concluded that “the Federal Rules clearly contemplate that the federal government is a party-opponent of the defendant in criminal cases,” United States v. Kattar, 840 F.2d 118, 130 (1st Cir. 1988), quoting United States v. Morgan, 581 F.2d 933 , 937 n.10 (D.C. Cir. 1978), and that the prosecutor acts as the agent of the Federal government in a criminal prosecution. Kattar, supra at 131 , quoting United States v. Powers, 467 F.2d 1089 , 1097 n.1 (7th Cir. 1972), cert. denied, 410 U.S. 983 (1973) (Stevens, J., dissenting) (“assertions made by the government in a formal prosecution . . . ‘establish the position of the United States and not merely the views of its agents who participate therein’ ”). See ante at 40. The United States Court of Appeals for the Second Circuit adopted the logical corollary to this legal principle and, applying Fed. R. Evid. 801 (d) (2), has ruled that a defendant in a criminal case may offer in evidence prior statements made by an assistant United States attorney that are factually inconsistent with the government’s theory of the case at trial. See, e.g., Salerno, 937 F.2d at 810-812 (judge abused discretion in excluding statements in Federal prosecutor’s opening statement and closing argument at earlier trial that characterized defendant as victim of extortion rather than participant in fraudulent bid-rigging, concluding, “The government, at different times, has urged both [that the defendant was a “culpable bid-rigger” and a “puppet on a string”] — and the jury [were] entitled to know that, because the jury, and not the government, must ultimately decide which he was”); 3 GAF Corp., 928 F.2d at 1262 (judge erred in excluding inconsistent original bill of *52 particulars prepared by assistant United States attorney who tried case, concluding, “Although the Court in no way suggests that the government should not be able to amend its bill of particulars as it sees fit, we do hold that, if the government chooses to change its strategy at successive trials, and contradict its previous theories of the case and version of the historical facts, the jury [are] entitled to be aware of what the government has previously claimed, and accord whatever weight [they deem] appropriate to such information”).
At least two State courts and the District of Columbia have also recognized that in certain circumstances a prosecutor’s prior statements may be admissible as admissions against interest by a party-opponent. See Harris v. United States, 834 A.2d 106, 120 (D.C. 2003) (“The language of the party admission rule provides no basis for creating a prosecutorial exception or an exception where the government is the party opponent. . . . [T]he prior statements of an Assistant United States Attorney can be treated as party admissions”); State v. Cardenas-Hernandez, 219 Wis. 2d 516, 531 (1998) (“We find persuasive the reasoning of Salerno and McKeon. We therefore refuse to adopt a per se prohibition on the use of prior statements of prosecutors as admissions of a party-opponent . . . We agree that to adopt such a rule could invite abuse and sharp practice by prosecutors and could weaken the public’s confidence in the justice system itself by denying the function of trials as truth-seeking proceedings”); Hoover v. State, 552 So. 2d 834, 838, 840 (Miss. 1989) (prosecutor’s statements at earlier trial of codefendant that codefendant killed victim should have been admitted in evidence at defendant’s subsequent trial).
To be sure, not every inconsistent statement by a prosecutor is admissible in evidence. “The defense is allowed to introduce a prosecutor’s statement from a prior trial when: (1) the prosecution offered an inconsistent assertion of fact at the prior trial; and (2) the prosecution can offer no ‘innocent’ explanation for the contradiction.” United States v. Orena, 32 F.3d 704, 716 (2d Cir. 1994). See Poulin, Party Admissions in Criminal Cases: Should the Government Have to Eat Its Words?, 87 Minn. L. Rev. 401 , 443 (2002). Thus, a prosecutor’s assertion of fact is not inconsistent and therefore not admissible where the prosecutor at a subsequent trial offered “additional, not conflicting, *53 theories” as to the defendant’s motivation to commit the murder. Orena, supra. Nor would an inconsistent assertion of fact be admissible where new evidence was discovered after the first trial that caused the prosecutor to alter his understanding of the facts of a case. See United States v. James, 712 F.3d 79 , 86 n.1, 102-103 (2d Cir. 2013) (government provided “innocent explanation” for inconsistency between its stated position at earlier trial and at subsequent trial where defendant in first trial, after conviction, proffered new information that led government to different view as to her culpability for murder). And a judge always retains the discretion to determine whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice to the Commonwealth. See Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418, 422-423 (1988); Mass. G. Evid. § 403 (2013).
Applying these principles to this case, it is plain that the prosecutor’s statements in closing argument at the Sok trial that Sok was the shooter is an assertion of fact that is inconsistent with his statements in closing argument at the Keo trial that Keo was the shooter. The court contends that the prosecutor’s statements are not inconsistent because, in both trials, he argued that the defendant was guilty regardless of whether he was the shooter or an aider or abettor, but any fair reading of the prosecutor’s closing arguments would reveal that he made a forceful factual (and inconsistent) assertion that the defendant on trial was the shooter; he did not merely identify the evidence supporting the theory that the defendant on trial was a shooter and the theory that he was an aider and abettor. 4
Because the defendant did not seek to offer in evidence the prosecutor’s inconsistent assertion that Sok was the shooter, the *54 prosecutor did not have an opportunity to offer an “innocent” explanation for his contradictory assertions of fact at the two trials. Even though essentially the same evidence was offered at both trials, the prosecutor should be given this opportunity, which requires remand of the case to the trial judge. 5 , 6 Unless *55 the prosecutor can provide an “innocent” explanation, the jury in this case were entitled to know that the prosecutor in his closing argument at the Sok trial had told the Sok jury what Keo’s attorney had told the Keo jury — that Sok was the shooter — and give this inconsistent statement whatever weight they believe it deserved.
2. Prejudice from the failure to admit this evidence. The court states that, even if it were error to not admit this evidence, the error was “not likely ‘to have unfairly influenced the jury’s verdict.’ ” Ante at 44-45, quoting Commonwealth v. Johnson, 429 Mass. 745, 754 (1999). I recognize that the evidence was sufficient to convict the defendant on a joint venture theory if the jury were to have learned of and adopted the prosecutor’s earlier inconsistent statements that Sok was the shooter. But the sufficiency of the evidence of joint venture does not mean that the defendant was not prejudiced by the jury’s failure to learn of the prosecutor’s inconsistent statements as to who was the shooter. As noted earlier, to convict Keo as an aider and abettor of premeditated murder, the jury would have needed to find beyond a reasonable doubt that, when the fatal shot was fired, Keo, with premeditation, shared Sok’s intent to kill the victim. The difficulty in proving this theory beyond a reasonable doubt was that the victim was not killed immediately after he first left the restaurant, but only after he unexpectedly returned to the restaurant and fought with Keo, Sok, and their two fellow gang members inside the restaurant. If Sok was the shooter, the jury would have needed to consider whether Keo and Sok devised a plan to kill the victim that Sok did not attempt when the victim first left the restaurant, or whether Keo, during or immediately after the fight in the restaurant, somehow directed Sok to kill the victim even though they were many feet apart at the time of the killing and there was no evidence of any verbal communication between them in the moments that preceded the shooting. The evidence was sufficient to permit the jury to find that Keo *56 directed Sok to shoot the victim, but the weight of the evidence of Keo’s premeditation and intent to kill was far weaker if Sok was the shooter rather than Keo. Where Keo’s strategy at trial was to argue that Sok was the shooter, no doubt because he recognized the difficulty of proving beyond a reasonable doubt that Keo was guilty as an aider and abettor if the jury found that Sok was the shooter, it is unreasonable for the court to conclude that Keo was not unfairly prejudiced by the jury’s inability to weigh the prosecutor’s declarations at the earlier trial that Sok was the shooter. 7
3. Is the verdict consonant with justice under G. L. c. 278, § 33E? The court concludes, among other reasons, that the verdict is consonant with justice under G. L. c. 278, § 33E, because the defendant’s counsel cannot be found ineffective for failing to seek to admit evidence that we have yet to declare admissible. Ante at 41-46. Under our broad authority in capital cases under G. L. c. 278, § 33E, we may order a new trial where “the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require.” In view of the breadth of this authority, I do not believe the court needs to decide whether defense counsel was ineffective for failing to recognize that the court might conclude, as did the Court of Appeals for the Second Circuit and various State courts, that an inconsistent factual statement of a prosecutor in an earlier closing argument is admissible where there is no “innocent” explanation for the inconsistency. Regardless of whether counsel was ineffective for failing to offer this evidence, the fact remains that: (1) the prosecutor’s statements in closing argument in the Sok trial that Sok was the shooter may have been admissible; (2) the admission of this evidence would have substantially bolstered defense counsel’s argument that Sok was the shooter; and (3) we cannot be certain, or even confident, that the jury would have found *57 Keo guilty of murder in the first degree as an aider and abettor if they had a reasonable doubt whether Keo was the shooter. This alone is more than sufficient to justify remand to the trial judge to determine whether the prosecutor had an “innocent” explanation for arguing that Keo was the shooter after having earlier argued that Sok was the shooter. If there is no “innocent” explanation, this conviction is not consonant with justice and must be vacated, so that a new trial may be conducted where the jury learns that, when Sok was on trial, the prosecutor argued that Sok was the shooter. 8
To affirm this conviction without first remanding it is to affirm that the truth does not matter in criminal trials, that a prosecutor who lacks an “innocent explanation” may, without consequence, argue in one trial that one codefendant is the shooter where that theory will more easily lead to that codefendant’s conviction and, in another trial, argue that a different codefendant is the shooter where that approach offers an easier path to securing a conviction. In short, I am convinced that affirming this conviction without first remanding it “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.” Salerno, 937 F.2d at 811 , quoting United States v. McKeon, 738 F.2d 26, 31 (2d Cir. 1984). Therefore, I respectfully dissent.
concur with the court that, given that the defendant’s conviction of murder in the first degree is affirmed, the defendant’s sentence should be reduced to life with the possibility of parole.
I have inserted in brackets the words “the Commonwealth” in place of the words “any party” that are used in this quotation because I limit my discussion *50 to the admission of the prosecutor’s statements in closing argument and do not address whether an inconsistent statement by a defense counsel in opening statement or closing argument may also be admissible in evidence as an admission of an opposing party, as it was held to be in United States v. McKeon, 738 F.2d 26, 34 (2d Cir. 1984). Because a prosecutor plays a “special role ... in the search for truth in criminal trials,” Strickler v. Greene, 527 U.S. 263, 281 (1999), the admission of a prosecutor’s contrary assertion in a previous opening statement or closing argument warrants a legal analysis different from that for the admission of a defense counsel’s contrary prior statement.
The court states that the conclusion of the United States Court of Appeals for the Second Circuit in United States v. Salerno, 937 F.2d 797, 811-812 (2d Cir. 1991), rev’d on other grounds, 505 U.S. 317 (1992), that the judge abused her discretion in refusing to admit the prosecutor’s inconsistent statements in an earlier closing argument, was “dicta.” Ante at 40, 41. To the extent this characterization suggests that the court’s conclusion was without practical consequence, it is misleading. Although the Court of Appeals reversed the convictions on other grounds, it recognized that a retrial was “likely” and reached the issue to “offer some guidance on this subject.” Salerno, supra at 811.
‘The court, citing United States v. Orena, 32 F.3d 704, 716 (2d Cir. 1994), claims that “even under the law of the Second Circuit, a transcript of the prosecutor’s closing argument from Sok’s trial would not have been admissible at the defendant’s trial because the Commonwealth properly presented alternative (albeit inconsistent) theories of liability in each trial and in so doing presented different theories that as a matter of law are not contradictory.” Ante at 42. The court also claims that the “dissent ignores this law.” Ante at 42. In fact, the court badly misreads the Orena case and, in doing so, mischaracterizes the law of the Second Circuit.
In Orena, supra at 716 , the prosecutor in the first trial said that the victim was murdered because he was skimming loansharking proceeds; at Orena’s *54 trial, he offered the same claimed motivation, as well as two alternative motivations, to kill the victim:
“At Bonfiglio’s trial, the prosecution postulated that Ocera was murdered because he was skimming loansharking proceeds. At Orena’s trial, the prosecution proffered three bases for Ocera’s murder: (1) Ocera was skimming loansharking proceeds; (2) Ocera had not been able to retrieve the loansharking records seized from his restaurant by the Suffolk County police; and (3) Orena wanted to ingratiate himself with John Gotti, then the boss of the Gambino family, who for his own reasons wanted Ocera to be killed. Thus, the prosecution at Orena’s trial offered additional, not conflicting, theories for the Ocera murder. Further, there is no showing that evidence was introduced at the Bonfiglio trial that would have justified arguing the additional theories to the jury in that case. Accordingly, the district court properly excluded the prosecution’s opening statement at Bonfiglio’s trial from being admitted in evidence at Orena’s trial.”
Offering additional possible motivations for a victim’s murder is a world apart from changing position as to who shot the victim.
The court also cites support for its position, albeit with a “cf.” citation, from State v. Williams, 79 Wash. App. 21, 30-31 (1995), where the Court of Appeals of Washington concluded that a judge erred in allowing a prosecutor to admit in evidence a defense lawyer’s stipulation that his client’s defenses would be “[gjeneral denial, entrapment.” Ante at 42. The Williams court stated, “We hold only that when an attorney is permitted to state alternative or inconsistent defenses on behalf of his or her client, the statement does not qualify as the admission of a party opponent.” Williams, supra. The fact that the court looks to this case for support reflects how little support the court has for its position.
Though, as the court notes, ante at 43, “we do not have the benefit of an affidavit of the prosecutor” explaining why he told the jury in the Sok trial that Sok was the shooter and the jury in the Keo trial that Keo was the shooter, the Commonwealth suggests, and the court agrees, that the jury verdict in the Sok trial that Sok was guilty as a joint venturer justified the change. Even if the prosecutor were to offer this explanation, it is the role of the trial judge, not this court, to determine whether it is credible and whether, in the absence of newly discovered evidence, it suffices as an innocent explanation for the prosecutor’s 180 degree shift in his theory of the case.
The court states that the dissent “misstates the evidence the prosecution had at Sok’s trial that was used to establish that Sok was the shooter,” ante at 44, although it does not identify any misstatement and I am not aware of any. As best I can tell, the thrust of this paragraph is that the fact that Am testified *55 at Keo’s trial that Sok said, “I think I shot a crab,” where she was not sure who made this statement at Sok’s trial, provides an “innocent explanation” for the prosecutor’s change in position at Keo’s trial that Keo, not Sok, was the shooter. Since this evidence more strongly pointed to Sok as the shooter, I cannot see how this can possibly explain the prosecutor’s new assertion that Keo was the shooter.
Where I have twice in my dissent recognized that the evidence was sufficient to convict Keo on a joint venture theory if Sok was the shooter, I fail to understand how the court can state that the dissent attempts “to extinguish any accomplice or joint venture type of liability.” Ante at note 23. My disagreement with the majority rests in their unwillingness to recognize the prejudice that arises from the jury not learning that the prosecutor earlier declared that Sok was the shooter, not the sufficiency of the evidence of joint venture.
The court appears to state that there can be no substantial likelihood of a miscarriage of justice where the defendant “was not deprived of his constitutional right to present a case” or, alternatively, where the evidence was legally sufficient to support a conviction on a joint venture theory. Ante at 45-46. Neither assertion accurately reflects our law.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6454975. Public record. Not legal advice.