Commonwealth v. Jessup , 471 Mass. 121 ( 2015 )

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SJC-11376
COMMONWEALTH vs. ANTHONY EUGENE JESSUP.
Hampden. December 5, 2014. - April 8, 2015.
Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.
Homicide. Firearms. Felony-Murder Rule. Constitutional Law,
Imprisonment, Freedom of speech and press. Wanton or
Reckless Conduct. Robbery. Practice, Criminal, Capital
case, Motion to suppress, Instructions to jury, Assistance
of counsel.
Indictments found and returned in the Superior Court
Department on July 30, 2010.
A pretrial motion to suppress evidence was heard by
Constance M. Sweeney, J., and the cases were tried before
Richard J. Carey, J.
Elaine Pourinski for the defendant.
Deborah D. Ahlstrom, Assistant District Attorney, for the
Commonwealth.
HINES, J. In the early morning hours of May 30, 2010,
Jonathan Santiago was shot and killed as he sat in his vehicle
parked near a Springfield sports bar. The defendant was
indicted for the shooting, and a jury convicted him of murder in
2
the first degree on the theory of felony-murder (with attempted
armed robbery as the underlying felony), unlawful possession of
a firearm, and unlawful possession of a loaded firearm.1,2
Represented by new counsel on appeal, he argues (1) error in the
denial of his motion to suppress a letter he wrote to another
detainee while he was detained awaiting trial; (2) that a
substantial likelihood of a miscarriage of justice arose from
the trial judge's failure to instruct on involuntary
manslaughter; and (3) that his trial counsel was ineffective in
not requesting an instruction on involuntary manslaughter based
on wanton or reckless conduct. We affirm the order denying the
defendant's motion to suppress as well as the defendant's
convictions, and discern no basis to exercise our authority
pursuant to G. L. c. 278, § 33E.
Background. Based on the evidence adduced by the
Commonwealth at trial, the jury could have found the following
facts. On May 29, 2010, the victim met up with his friends,
1
The defendant also was convicted of armed assault with
intent to rob, which was dismissed as duplicative of the
predicate felony underlying the felony-murder conviction, and of
unlawful possession of ammunition, which was dismissed as a
lesser included offense of unlawful possession of a loaded
firearm.
2
The defendant was tried together with Jason Jamal Stovall,
who was charged with the same offenses as the defendant, but as
an aider and abettor or joint venturer, see Commonwealth v.
Zanetti, 454 Mass. 449, 466-467 (2009). The jury found Stovall
not guilty on all charges against him.
3
Andrew Cooke, Marquis Chase, Kasheef Sheppard, Timothy
Henderson, and Alan Bamber, outside a sports bar in Springfield
where Virgil Vargas was celebrating her twenty-first birthday.3
Vargas previously had attended high school in Springfield with
the victim, the defendant, and James Jamal Stovall, who was
tried with the defendant. Stovall was her friend. She spoke
with Stovall and the defendant outside the bar about fifteen to
twenty minutes before the shooting.4 According to Vargas, both
men wore black hooded sweatshirts, and hats.5 The defendant's
braided hair was visible under his hat. At the time of the
shooting, which Vargas estimated had occurred at approximately
12:35 A.M., she had returned inside the bar.
The victim, who was wearing a "long, big chain," was parked
in a lot across the street from the bar. He waited by the trunk
3
Virgil Vargas had promoted the party on social media
sites.
4
Others saw the defendant and Stovall in the area outside
the bar before the shooting. Andrew Cooke, who previously had
worked at a restaurant with Stovall and "knew of" the defendant,
testified that he saw the defendant and that the defendant was
wearing a black "pilot's" jacket and a black baseball cap. He
did not "get a good look" at Stovall. Marquis Chase also saw
the defendant and Stovall before the shooting. Chase testified
that the defendant was wearing a black sweatshirt and hat and
had braided hair, and that Stovall was wearing a black
sweatshirt. Another person present testified that he saw the
defendant and Stovall before the shooting and that both were
wearing hooded sweatshirts and one wore a hat.
5
In her invitations to her party, Vargas had asked people
to wear black clothing.
4
of his automobile while some of his friends were deciding
whether to stay or leave. When the group decided to leave,
Cooke approached the victim, who was then seated in the driver's
seat of his automobile, to inform him.
The testimony varied about what happened next. Cooke
testified that when he reached the victim's automobile, he
leaned over to speak with the victim through the front driver's
side window, which was partially opened. As Cooke was doing so,
he heard a sound and turned back toward it. He saw a light-
skinned African-American male,6 with braids, a hat, and a
"pilot's" jacket approach from behind with a gun. The person
put the gun into the rear driver's side window, and stated,
"Give me some money," or "Give me what you have."7 Cooke
testified that he heard a gunshot, saw the victim's automobile
back up and then move forward, and then heard the automobile
crash into a fire hydrant. Cooke did not see anyone else at or
approaching the victim's automobile.8̓9
6
Cooke testified that he only saw part of the shooter's
face, namely, the shooter's chin.
7
After the shooting and while at the scene, Cooke told one
officer that the shooter had pointed the gun at the victim and
ordered the victim to get out of the automobile and then pointed
the firearm at him (Cooke).
8
During his cross-examination, Cooke acknowledged that he
told a police officer that there might have been someone on the
other side of the automobile.
5
Chase testified that just before the shooting, Cooke was
speaking to the victim through the driver's side window. Chase
heard someone say, "Open the door or I'll kill you." He went to
see what was going on and saw a black male with braids10 behind
Cooke with his arm inside the rear driver's side window of the
victim's automobile (but did not see a gun). Chase testified
that he observed another person, who also was a black male,
standing by the passenger's side mirror of the victim's
automobile. Chase heard a gunshot and then observed the
victim's automobile travel in reverse, eventually crashing into
a fire hydrant. Chase testified that after the shooting, the
two men who had approached the vehicle took off running across
the street.11
Another individual who was present, Kashawn Harris,
testified that he knew Stovall from high school and was familiar
with the defendant. After Harris learned that his friends were
going to leave and not attend the party, he went back to his
automobile. He heard yelling and turned around. Harris saw a
light-skinned black male in dark clothing on the driver's side
9
At trial, Cooke made an in-court identification of the
defendant as the shooter.
10
Chase testified that he did see some of this man's face.
11
When Chase first spoke with police, he did not mention
Cooke's presence or that anyone was in the area of the
passenger's side door.
6
of the victim's automobile reaching into the automobile and
another person in dark clothing running up on the other side of
the automobile. He saw the person on the passenger's side of
the automobile touch the roof and a door. From the direction of
the victim's automobile, he heard a shot, and he then saw the
victim's automobile move and crash into a fire hydrant. Harris
could not recall whether the victim's automobile moved before
the shot was fired, but the two occurrences were close in time.
He testified that after the shooting, the two people he had seen
by the victim's automobile took off running across the street.
After the shooting, the victim's friends rushed over to his
automobile, and Chase and Henderson entered the vehicle and
tried to revive him. The scene was chaotic with people running
and screaming.
Police and medical response personnel arrived at the scene
within minutes. The victim died as the result of a gunshot
wound to his back and chest. The medical examiner who conducted
the autopsy testified that the victim had an entrance wound in
the middle of the left side of his back. The bullet traveled
through his left lung, which collapsed; went through his aorta,
a major blood vessel; and exited through his upper right chest.
The track of the wound was left to right, and back to front.
Although the victim suffered other injuries to his face, the
gunshot wound caused his death. The medical examiner also
7
opined that the gunshot wound was not one which would have
resulted from a gun being fired from within two inches of the
victim, so that the wound could not be characterized as a
contact or close contact wound.
Police searched the area. One officer found a discharged
nine millimeter cartridge casing which he opined likely would
have been fired from a semiautomatic weapon. No weapon was ever
recovered.
The victim's automobile subsequently was processed for the
presence of fingerprints. Fingerprints taken from the front and
rear passenger's side windows matched those of Stovall.
Fingerprints removed from other areas inside and outside the
automobile matched those of Henderson and Chase. There were no
fingerprints matching the defendant's.
Police took statements from various people who were present
at the time of the shooting. They brought several people to the
police station to view (separately) photographs of possible
suspects.
One officer, based on a description that Chase had given of
the shooter, generated about 900 photographs of possible
suspects through a computer search. The officer asked Chase to
view the suspects on the computer, which displayed about twelve
photographs per screen. After viewing approximately 300
photographs, Chase selected the defendant's photograph,
8
identifying him as the shooter. At this point, the police
learned the defendant's name.
Cooke told Springfield police Sergeant Kevin Devine that
the shooter was a light-skinned black male between five feet,
four inches and five feet, seven inches; wore a black baseball
cap with a "B" on it; wore a dark-colored coat; and had braids
to the back of his neck. Cooke testified that he also told
police that the shooter had a moustache and some markings on his
face. Cooke was not able to positively identify the defendant
from any photographs shown to him on a computer screen, but
later from a photographic array of eight individuals he selected
three photographs depicting individuals who bore a resemblance
to the shooter, one of which was a photograph of the defendant.
Cooke stated that if he were to see the shooter in person, he
would be able to make a positive identification.
On May 31, Cooke returned to look at a photographic array,12
but was not able to make an identification. Again, he pointed
to one photograph (of the defendant), stating that the person
resembled the shooter.
In the early afternoon of June 1, Cooke, Bamber, Sheppard,
and Chase went to a park to go swimming. While there, they saw
the defendant and his girl friend. Cooke "stopped dead in his
12
This photographic array contained the same subjects as
the earlier one referenced, but displayed a profile view of
those subjects.
9
tracks" when he saw the defendant. Someone asked, "Is that
him?" to which Cooke replied that it was.13 Cooke's friends then
attacked the defendant, who eventually was able to escape.
Later, Cooke contacted Sergeant Devine and went to the police
station; there, looking at a different photograph array
containing eight photographs, Cooke positively identified a
photograph of the defendant as the person who had shot the
victim.
Police had Chase return to the police station to view a
photographic array containing eight photographs. Chase selected
the defendant's photograph from the array and stated that the
person depicted therein was one of the two men at the victim's
automobile at the time of the shooting. From a different
photographic array, Chase also identified one of the two men as
Stovall.
Police also had Harris view photographic arrays on June 1.
From an array, Harris selected the defendant's photograph as
depicting the person on the driver's side of the victim's
automobile and, from another array, selected Stovall's
photograph as being one of the two men who fled from the
victim's automobile after the shooting. At trial, Harris
testified that, at the time of the shooting, he had not seen the
13
Cooke testified that it was his cousin Chase who had
asked this question, but Chase denied it at trial.
10
faces of the men who had approached the victim, but had assumed
from the clothing worn by the men who had been by the victim's
automobile that the men were the defendant and Stovall.
After the encounter with the victim's friends, the
defendant and his girl friend fled Massachusetts. They were
apprehended in Virginia on June 2, the next day, and detained at
the Southside regional jail (jail) in Emporia, Virginia, pending
extradition to Massachusetts. While awaiting extradition, the
defendant sent his girl friend, who also was being detained at
the same facility, a letter that was the subject of the motion
to suppress. The Commonwealth introduced a redacted portion of
this letter at trial as admissions of the defendant as well as
consciousness of guilt evidence. In the letter, the defendant
stated:
"I hated being broke. I mean the lights got cut off,
there was no cable, . . . gas, . . . et cetera. I wanted
to do so much with so little and it didn't help, you kept
reminding me that I wasn't shit and I didn't have shit. I
. . . felt worthless and it hurt, so it caused me to not
think clearly and to go out and do some dumb shit.
"But I got good news, I'm not going to do life, first
the bullet didn't kill him, the accident did, and second,
they don't have any evidence just those stupid school kids
saying I did it, but you know how that is that. All I know
is that I was driving with you all day and left and went
home, so I don't know what them kids are talking about.
"I'm going to beat this case so stick by me please and
then we can move if you want and start a new life, I swear.
I don't know about you, but I was kind of glad this shit
happened because we went on a road trip together. I was so
11
excited to go to ATL with you. I couldn't wait to start
over."
Neither the defendant nor Stovall testified. The defendant
presented a case of misidentification. His former attorney
testified that while interviewing Sheppard on May 20, 2011,
Sheppard stated that he had spoken with Chase, Bamber, and Cooke
before they were interviewed at the police station on the
morning of the shooting and that none of them had seen who shot
the victim. The defendant's trial counsel argued that the
identifications made by Harris, Cooke, and Chase were not
credible. Defense counsel also underscored the absence of
physical evidence connecting the defendant to the crime and
argued that the defendant had to flee the Commonwealth for his
own safety.
Discussion. 1. Motion to suppress. Prior to trial, the
defendant filed a motion to suppress two letters, one that he
sent to, and one he received from, his girl friend, while both
the defendant and his girl friend were being held pending
extradition to Massachusetts. The Virginia authorities seized
the letters under the jail's policy prohibiting inmate-to-inmate
correspondence without prior approval. The defendant argued
that the letters were seized in violation of the First Amendment
to the United States Constitution, as applied to the States
through the Fourteenth Amendment to the United States
12
Constitution. After conducting an evidentiary hearing, a judge
denied the motion.
One witness, Lieutenant Richard Miles, an employee of the
jail, testified at the evidentiary hearing on the motion. We
recite the facts found or implicitly credited by the motion
judge, supplemented by additional undisputed facts where they do
not detract from the judge's ultimate findings. See
Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450
Mass. 818 (2008).
On June 2, three days after the murder and the next day
after the encounter with the victim's friends, the defendant was
arrested in Virginia. His girl friend was with him at the time
and, shortly thereafter, also was arrested on an outstanding
warrant. At the jail, the defendant and his girl friend were
held in separate units based on their gender. Male and female
inmates were not permitted to communicate with each other. The
jail's written policy precluded inmate-to-inmate correspondence
by mail without prior approval.14 Inmates were notified of this
policy, among others, when they were admitted to jail. The
policies and procedures of the jail were established to ensure
safety and security.
14
Specifically, the policy provided: "Inmate to inmate
correspondence within the facility will only be approved when a
prior family relationship is verified."
13
On June 17, 2010, Miles collected outgoing mail that had
been placed in a window in the common room of the housing unit
in which the defendant and seven other male inmates were being
detained. One item of mail, an envelope addressed to, and with
the same return address of, the defendant's girl friend (the
return address and sending address were that of the jail)15
raised a "red flag." Miles confiscated the letter because, as
indicated by the envelope's return address, "it was mail from a
female [who obviously did not reside] in a housing unit that was
male."
The jail's policy permitted an inmate's mail to be read by
jail personnel only if the mail was first deemed to be
contraband. Miles considered the letter contraband and opened
it to identify the sender, as it appeared to have a female
sender and only a male inmate in the unit would have authored
it. He called out the defendant's name, but the defendant did
not respond. Another inmate went to the defendant's cell and
informed the defendant that his mail had been confiscated.
Miles returned to the defendant the envelope in which the
letter had been contained, but Miles kept the letter itself. He
then verified that the defendant's girl friend was housed at the
jail, that she and the defendant were "codefendants," and that
15
The envelope was addressed to "Cherily Nixon, 244 Uriah
Branchway, Emporia, VA 23847," and had the return address of
"Cherily Nixon, 244 Uriah Branchway, Emporia, VA 23847."
14
neither the defendant nor the defendant's girl friend had
obtained permission to correspond. Miles read the letter16 and
then returned to the defendant's cell to retrieve the envelope.
Miles also confiscated a second letter from the defendant's cell
(that letter was sent to the defendant from his girl friend).17
Miles forwarded the letters to his supervisor.
The defendant maintains on appeal that his letter to his
girl friend18 should have been suppressed because it was
confiscated in violation of his right to free speech under the
First Amendment. In reviewing a decision on a motion to
suppress, "we accept the judge's subsidiary findings of fact
absent clear error 'but conduct an independent review of [the
judge's] ultimate findings and conclusions of law.'"
Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting
Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).
Courts "must take cognizance of the valid constitutional
claims of prison inmates." Turner v. Safley, 482 U.S. 78, 84
16
The relevant portions of this letter appear earlier in
this decision.
17
Lieutenant Richard Miles testified that, pursuant to a
policy of the Southside regional jail, the discovery of
contraband authorizes a cell search.
18
Only some of the contents of the letter that the
defendant had written to his girl friend were admitted in
evidence over his objection at trial. The prosecutor did not
seek to admit the letter that the defendant's girl friend had
written to him.
15
(1987). Because prisoners retain their constitutional rights,
"[w]hen a prison regulation or practice offends a fundamental
constitutional guarantee, . . . courts will discharge their duty
to protect constitutional rights." Id., quoting Procunier v.
Martinez, 416 U.S. 396, 405-406 (1974) (Martinez). Regulations,
policies, or practices that restrict the written correspondence
or mail of prisoners no doubt implicate the First Amendment's
guarantee of freedom of speech. See, e.g., Martinez, supra at
406, 408.
At the same time, "[p]rison [officials] are responsible for
maintaining internal order and discipline, for securing their
institutions against unauthorized access or escape, and for
rehabilitating, to the extent that human nature and inadequate
resources allow, the inmates placed in their custody."
Martinez, 416 U.S. at 404. "The Herculean obstacles to
effective discharge of these duties are too apparent to warrant
explication." Id. Running a prison requires "expertise,
comprehensive planning, and the commitment of resources, all of
which are peculiarly within the province of the legislative and
executive branches of government." Id. at 405. As such,
"courts are ill equipped to deal with the increasingly urgent
problems of prison administration and reform." Id.Consequently, "[w]here a [S]tate penal system is involved . . .
courts have . . . additional reason to accord deference to the
16
appropriate prison authorities." Turner, 482 U.S. at 85, citing
Martinez, supra.In Martinez, 416 U.S. at 398, 416, the United States
Supreme Court first addressed the issue of prisoner mail when it
considered the constitutionality of a California Department of
Corrections regulation that censored inmate mail deemed to
magnify grievances or contain other inflammatory statements. In
determining whether "censorship of prisoner mail is justified,"
id. at 413, the Supreme Court set forth a two-part test:
"First, the regulation or practice in question must
further an important or substantial governmental interest
unrelated to the suppression of evidence. Prison officials
. . . must show that a regulation authorizing mail
censorship furthers one or more of the substantial
government interests of security, order, and
rehabilitation. Second, the limitation of First Amendment
freedoms must be no greater than is necessary or essential
to the protection of the particular governmental interest
involved."
Id.Subsequently, in Turner, 482 U.S. at 81, the Supreme Court
considered a Missouri regulation that forbade communication
between inmates at different institutions. The Supreme Court
took care to distinguish its earlier holding in Martinez, noting
that the Martinez case "turned on the fact that the challenged
regulation caused a 'consequential restriction on the First and
Fourteenth Amendment rights of those who are not prisoners'"
(emphasis in original). Turner, supra at 85, quoting Martinez,
17
416 U.S. at 409. The Supreme Court upheld the challenged
regulation and in so doing set forth a standard to be applied
different from that stated in Martinez. Turner, supra at 89,
93. Recognizing that courts must balance First Amendment rights
of prisoners against legitimate penological governmental
interests, the Supreme Court expressly adopted a deferential
standard of scrutiny for the review of regulations and policies
in the prison context that infringe on free speech rights under
the First Amendment.19 Id. at 89. Specifically, the Supreme
Court directs that, "when a prison regulation impinges on
inmates' constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests." Id.Under Turner, the reasonableness inquiry focuses on several
factors, none of which suggests a violation of the defendant's
First Amendment rights in this case.
"The first Turner factor is multifold [and involves
determining] whether the governmental objective underlying the
regulations at issue is legitimate and neutral, and that the
regulations are rationally related to that objective."
Thornburgh v. Abbott, 490 U.S. 401, 414 (1989) (Abbott). The
second factor requires determining whether alternative means
19
We have adopted this standard. See Massachusetts
Prisoners Ass'n Political Action Comm. v. Acting Governor, 435
Mass. 811, 819 (2002), quoting Turner v. Safley, 482 U.S. 78, 89
(1987).
18
exist for exercising the challenged right. Id. at 417. The
third factor considers the "impact the accommodation of the
asserted constitutional right will have on others (guards and
inmates) in the prison." Id. at 418. Last, Turner stated that
"the existence of obvious, easy alternatives may be evidence
that the regulation is not reasonable, but is an 'exaggerated
response' to prison concerns. . . . [I]f an inmate claimant can
point to an alternative that fully accommodates the prisoner's
rights at de minimis cost to valid penological interests, a
court may consider that as evidence that the regulation does not
satisfy the reasonable relationship standard." Id., quoting
Turner, 482 U.S. at 90-91.
As an initial matter, the defendant argues that the letter
itself was not contraband because it did not contain any
physical items such as drugs or weapons. The term contraband,
however, is not so narrowly construed and includes, in
accordance with its ordinary meaning and usage, any item not
approved for retention. See, e.g., 103 Code Mass. Regs. 403.06
(2001) (defining contraband as "any item[s] not approved for
retention by an inmate at an institution"). See also Webster's
Third New International Dictionary 494 (1993) (defining
"contraband" as "goods or merchandise the importation,
exportation, or sometimes possession of which is forbidden").
Here, the letter was addressed to a female inmate and thus was
19
sent in violation of the jail's policy prohibiting inmate-to-
inmate correspondence without prior approval. The letter was a
prohibited item. Miles properly considered it contraband.
We turn now to application of the reasonableness test,
commencing with an analysis of the first Turner factor. The
policy's prohibition on inmate-to-inmate correspondence in the
absence of a family relationship and where approval to
correspond had not been first obtained is reasonably related to
legitimate penological interests. Here, the policy was
established to ensure safety and security within the prison.
The policy recognizes that inmate-to-inmate correspondence has
the potential to be significantly disruptive, as such
correspondence may involve planned escapes, acts of violence, or
other schemes in the cases of pretrial detainees, including
witness intimidation or tampering with evidence before trial.
See Turner, 482 U.S. at 91-92; Nasir v. Morgan, 350 F.3d 366,
372 (3d Cir. 2003). These concerns justify implementation of
the challenged policy. See Abbott, 490 U.S. at 404-405, 415,
quoting Pell v. Procunier, 417 U.S. 817, 823 (1974) (regulations
authorizing warden to reject inmate's subscription publication
were aimed at protecting prison security, "a purpose [Supreme]
Court has said is 'central to all other corrections goals'");
Turner, supra at 81, 91 (prohibition on correspondence between
inmates of different facilities is logically connected to
20
legitimate security concerns); Martinez, 416 U.S. at 412-413("the legitimate governmental interest in the order and security
of penal institutions justifies the imposition of certain
restraints on inmate correspondence"); Farrell v. Peters, 951
F.2d 862, 863 (7th Cir. 1992) (prison officials may exercise
discretion over delivery of correspondence between inmates in
different correctional facilities based on safety and security
concerns).
Turning to neutrality, the Supreme Court has "found it
important to inquire whether prison regulations restricting
inmates' First Amendment rights operated in a neutral fashion,
without regard to the content of the expression." Turner, 482
U.S. at 90. Here, the prohibition on inmate-to-inmate
correspondence applies to all inmate-to-inmate correspondence,
without regard to the content of the correspondence. We thus
conclude that the neutrality requirement is satisfied.20 See id.Concerning the last part of the first Turner factor, the
challenged policy is rationally connected to the legitimate
safety concerns enunciated above. Of significance, the policy
differentiates between inmates who are family members and
20
The defendant contests neutral application of the policy
because his girl friend was able to send a letter to him. The
defendant points to no other instances where the policy was not
enforced. Under the circumstances and on this record, the fact
that the defendant's girl friend was able to send a letter to
the defendant appears to be an isolated occurrence in which one
parcel of mail inadvertently was not discovered and confiscated.
21
inmates who are not. Recognizing that there may be legitimate
reasons for fellow inmates who are family members to
communicate, the policy focuses "a limited class of other people
with whom prison officials have particular cause to be
concerned," Turner, 482 U.S. at 92, namely other inmates who are
not family members. Because of the legitimate safety concerns
enunciated above, and the dangers inherent in inmates of the
same facility being able to freely converse, the challenged
policy of limiting such correspondence to family members and
requiring prior approval reasonably relates to maintaining order
and security in the jail. While family members who are fellow
inmates also may have ulterior motives behind their
communications, the risk reasonably could be considered less
likely than that concerning those inmates sharing no family
background and is minimized by an approval process.
As to the second Turner factor, the defendant did not have
an alternative means to exercise the challenged right because
the defendant and his girl friend were not family members. We
note, however, that in the defendant's case, the limitation on
communication at the time was to be temporary, as he was
awaiting extradition to Massachusetts. The policy, as applied
to him, did not effect a permanent limitation on his right to
correspond with his girl friend.
22
Next, concerning the impact of accommodating the asserted
right if the policy is invalidated, we conclude that such
accommodation would likely have a significant potential negative
impact on jail personnel and other inmates. Internal
correspondence to nonfamily members no doubt would increase, and
with no confiscation and review of the content, there would be
no way of knowing if concerted criminal activity were afoot,
thus compromising security. Jail officials would not be able to
prevent, deter, and discover threats, escape plans, or planned
acts of violence. The safety of noncorresponding inmates would
be at risk.
Last, the defendant contends that, as an alternative to
enforcing the policy, Miles could have just reminded him about
the policy and returned the letter to him. Such action,
however, would obviate the need for the policy in the first
instance and, again, would fail to uncover whether in fact any
type of coordinated criminal activity was occurring. We are
satisfied, therefore, that the policy is not an "exaggerated
response" to the problem posed by inmate-to-inmate written
correspondence. See Turner, 482 U.S. at 90-91. We conclude
that an inmate does not have a First Amendment right to
unmonitored written correspondence with another inmate at the
same detention facility and that the policy did not violate
First Amendment guarantees.
23
We address one additional argument made by the defendant.
Relying on Abbott, 490 U.S. at 411-412, in which the Supreme
Court noted that outgoing mail by its very nature does not "pose
a serious threat to prison order and security," or a "danger to
the community inside the prison" (emphasis in original), the
defendant argues that his outgoing mail should be afforded
greater constitutional protection than incoming mail. No doubt,
some Federal courts, relying on Martinez, 416 U.S. at 413, have
applied a different standard to the outgoing mail of prisoners
as opposed to their incoming mail. See, e.g., Koutnik v. Brown,
456 F.3d 777, 784 (7th Cir. 2006), cert. denied, 552 U.S. 809(2007) (inmates' outgoing mail scrutinized under Martinez
standard); Nasir, 350 F.3d at 371 (noting that many Federal
courts apply Martinez standard to outgoing mail and Turner
standard to incoming mail). Other Federal courts, however, have
rejected such a distinction. See, e.g., Gassler v. Wood, 14
F.3d 406, 410 n.6 (8th Cir. 1994) (rejecting distinction drawn
by type of mail); Brewer v. Wilkinson, 3 F.3d 816, 824 & n.10
(5th Cir. 1993), cert. denied, 510 U.S. 1123 (1994) (reasoning
that Abbott suggests that Turner standard could apply to
outgoing mail because in Turner, Court explained that when
determining "whether the existence of other alternatives
evidenced the unreasonableness of a prison regulation or
practice, a court was not to employ a 'least restrictive means
24
test'" set forth in Martinez). The latter approach, rejecting
any distinction between outgoing and incoming mail, recognizes
that outgoing mail may pose just as many dangers as incoming
mail, including escape plans, illegal activities, and threats.
See Smith v. Delo, 995 F.2d 827, 831 (8th Cir. 1993), cert.
denied, 510 U.S. 1052 (1994). We need not offer our own
resolution of the conflict, if any exists, of what standard of
review to apply to outgoing mail as opposed to incoming mail,
because the mail at issue in this case was addressed to a fellow
inmate, thus rendering the mail not only outgoing mail, but also
incoming mail. We point out that the Martinez decision did not
address inmate-to-inmate correspondence. We note also, for
comprehensiveness, that Abbott expressly overruled Martinez to
the extent that it might support the drawing of a "categorical
distinction between incoming correspondence from prisoners . . .
and incoming correspondence from nonprisoners." Abbott, supra
at 413-414.
For the reasons stated, we discern no error in the denial
of the motion to suppress.
2. Other errors. a. Jury instructions. The defendant
argues error in the absence of an instruction on involuntary
manslaughter based on reckless and wanton conduct. Because the
defendant did not specifically request this instruction at
trial, or object to the charge on the ground of its absence, we
25
review whether there was error, and if so, whether it created a
substantial likelihood of a miscarriage of justice. See
Commonwealth v. Tolan, 453 Mass. 634, 648 (2009).
"An instruction on [involuntary] manslaughter is required
where any view of the evidence will permit a finding of
manslaughter and not murder." Commonwealth v. Sires, 413 Mass.
292, 301 (1992). "In deciding whether a manslaughter
instruction is supported by the evidence, all reasonable
inferences must be resolved in favor of the defendant."
Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975). As
relevant here, "[i]nvoluntary manslaughter is an unlawful
homicide unintentionally caused by an act which constitutes such
a disregard of probable harmful consequences to another as to
amount to wanton or reckless conduct."21 Id. at 747. However,
"[w]here the felony-murder rule applies, generally the defendant
is not entitled to an instruction on manslaughter."
Commonwealth v. Evans, 390 Mass. 144, 151 (1983).
The defendant's claim that he was entitled to an
instruction on involuntary manslaughter flows in part from his
contention that the shooting could have been accidental. In
21
Involuntary manslaughter may be based on one other
theory, namely, an unintentional killing resulting from "a
battery not amounting to a felony which the defendant knew or
should have known endangered human life." Commonwealth v.
Sanna, 424 Mass. 92, 105 (1997), quoting Commonwealth v. Pierce,
419 Mass. 28, 33 (1994).
26
that regard, he points out that several witnesses, Harris,
Cooke, and Bamber, testified that the victim's automobile moved
before the gun discharged. Thus, the defendant contends, the
movement of the victim's automobile could have startled him or
caused his hand to jerk in such a way that the gun "went off."
This assertion of an accidental shooting is nothing more than a
recasting of the argument made below that correctly was rejected
by the trial judge. See Evans, 390 Mass. at 151-152 ("A
defendant who kills a victim in the commission or attempted
commission of a robbery, while the defendant is armed with a
gun, is guilty of murder by application of the felony-murder
rule. . . . The fact that, according to the defendant, the gun
was discharged accidently, is of no consequence").
The defendant also contends that an involuntary
manslaughter instruction based on wanton or reckless conduct was
warranted because there was evidence that he was not engaged in
the predicate felony, namely, attempted armed robbery.
Specifically, the defendant asserts that the jury could have
concluded, based on an alternative view of the evidence, that
the defendant did not intend to rob the victim. He points to
Chase's testimony that before the shooting, he heard the
defendant say, "Open the door or I'll kill you," and Bamber, who
heard someone state, "Unlock the door before I shoot." This
testimony, he asserts, contradicted the only evidence of an
27
attempted robbery, which the defendant states was Cooke's
testimony that the defendant said something to the effect of,
"Give me what you have." Certainly, the jury were free to
reject Cooke's testimony. The defendant's argument, however,
ignores other evidence of his intent to rob, namely, his letter
in jail to his girl friend in which he complained that he "hated
being broke," that she reminded him that he "wasn't shit and
. . . didn't have shit," and that these circumstances caused him
"to not think clearly and to go out and do some dumb shit."
Defense counsel argued in his closing that the letter should not
be construed as inculpatory, but the defendant did not testify.
Nor was evidence presented to refute the reasonable inference of
a financial motive for attempted robbery that the jury could
have drawn from the letter's content. Thus, contrary to the
defendant's contentions, no view of the evidence supported an
involuntary manslaughter instruction on the theory that an
attempted armed robbery had not occurred.
Assuming, however, the absence of evidence of an intent to
rob the victim, the defendant does not explain how his conduct
otherwise qualified as wanton or reckless. It was undisputed
that whoever killed the victim had a gun because, irrespective
of what any witnesses saw, the unchallenged evidence of the
medical examiner established that the victim had been shot and
died as a result of a gunshot wound. There was no error in the
28
judge not instructing, sua sponte, on involuntary manslaughter
based on wanton or reckless conduct.
b. Ineffective assistance of trial counsel. The defendant
argues that his trial counsel was constitutionally ineffective
because she did not request a jury instruction on involuntary
manslaughter based on wanton or reckless conduct. Where we have
reviewed and rejected the defendant's contention that an
involuntary manslaughter instruction based on wanton or reckless
conduct was warranted, this claim cannot serve as the basis for
a claim of ineffective assistance of trial counsel. See
Commonwealth v. Silva, 455 Mass. 503, 528 (2009).
3. Relief pursuant to G. L. c. 278, § 33E. We have
examined the record pursuant to our duty under G. L. c. 278,
§ 33E, and discern no basis on which to grant the defendant
relief.
Judgments affirmed.