Commonwealth v. Carter , 475 Mass. 512 ( 2016 )

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SJC-11525
COMMONWEALTH vs. VERNON T. CARTER.
Plymouth. April 8, 2016. - September 19, 2016.
Present: Gants, C.J., Spina, Botsford, Duffly, & Hines, JJ.1
Homicide. Robbery. Firearms. Felony-Murder Rule. Assault and
Battery. Joint Enterprise. Identification. Evidence,
Identification, Joint venturer. Intoxication.
Constitutional Law, Right to bear arms. Practice,
Criminal, Capital case, Duplicative convictions, Witness,
Assistance of counsel, Argument by prosecutor, Instructions
to jury, Conduct of judge.
Indictments found and returned in the Superior Court
Department on December 30, 2009.
A pretrial motion to suppress evidence was heard by Thomas
F. McGuire, Jr., J., and the cases were tried before Raymond P.
Veary, Jr., J.
Russell C. Sobelman for the defendant.
Gail M. McKenna, Assistant District Attorney, for the
Commonwealth.
1
Justices Spina and Duffly participated in the deliberation
on this case prior to their retirements.
2
HINES, J. In April, 2013, a jury convicted the defendant,
Vernon T. Carter, of murder in the first degree of Scott
Monteiro on a theory of felony-murder, based on the predicate
felony of armed robbery.2 The defendant was also convicted of
armed robbery, assault and battery of Sheldon Santos, possession
of a firearm, and possession of ammunition.3 On appeal, the
defendant asserts error in (1) admission of identifications
obtained through procedures alleged to be suggestive; (2)
testimony from a last-minute Commonwealth witness; (3) the
prosecutor's closing argument; (4) omission of jury instructions
regarding involuntary manslaughter, "humane practice," and
intoxication; (5) judicial bias; and (6) firearms-related
convictions without evidence that he was not licensed.4 The
2
The jury did not find the defendant guilty on the theory
of deliberate premeditation.
3
The defendant was sentenced to life imprisonment in the
State prison without parole on the murder conviction; to from
nine to twelve years on the armed robbery conviction, to be
served from and after the murder sentence; and to from three to
five years on the firearm conviction, to be served from and
after the armed robbery sentence. He was also sentenced to a
house of correction for two years for unlawfully possessing
ammunition and for two and one-half years for assault and
battery, to run concurrently with the murder sentence.
4
The defendant also claims that trial counsel provided
constitutionally ineffective assistance. Because his claim of
ineffective assistance is based on counsel's failure to act
appropriately to prevent some of the errors claimed on appeal or
to preserve the defendant's rights regarding those alleged
3
defendant also argues that he is entitled to relief under G. L.
c. 278, § 33E. We vacate, as duplicative, the defendant's armed
robbery conviction, because it was the predicate felony for his
felony-murder conviction, the only theory on which the jury
found him guilty of murder in the first degree. See
Commonwealth v. Alcequiecz, 465 Mass. 557, 558 (2013). We
affirm the defendant's remaining convictions, and we discern no
other basis to exercise our authority pursuant to G. L. c. 278,
§ 33E.
Background. We summarize the evidence as the jury could
have found it, reserving certain facts for later discussion. At
approximately 10 P.M. on Friday, September 4, 2009, a group of
twenty to thirty people, in their late teens or early twenties
and generally from the Wareham area, gathered at a residence in
Wareham for a "house party." People were socializing and
drinking, "[j]ust teenage and adolescent kids having fun."
Monteiro, who had turned twenty-one years of age approximately
one month before the party, arrived with three of his friends.
Santos was there wearing a gold chain.
One of the young women at the party had asked the host if
she could invite her friend "Justin." Between 11:30 P.M. and
midnight, Justin arrived with a group of ten to fifteen people.
errors, we shall address this claim when we address the other
claims.
4
They introduced themselves to one or more partygoers as being
from the "United Front" in New Bedford. The party became more
"tense" after the group's arrival, and someone in the group
started to complain, "This party is whacked. . . . There's no
bitches." A short time later, the majority of the New Bedford
group left the house. Within a few minutes, two to five people
reentered and approached Santos. Santos had been sitting on a
sofa with his girl friend, and Monteiro was sitting on a nearby
chair. Santos stood up when approached, and a few people from
the New Bedford group surrounded the sofa area so as to prevent
anyone from leaving. The defendant pulled a gun out of his
pants, pointed it at Santos's head, and said, "Run your chain."
He reached toward Santos, and Santos dropped to the floor.
Monteiro then stood up, held his hands out with palms facing up,
and calmly said, "Chill, we are all just chilling." The
defendant fired three shots, and a single bullet hit Monteiro
above his right eye. At some point during this altercation,
Santos suffered a face injury that required sutures; he also
lost his gold chain.
One of Monteiro's friends attended to him as the remaining
partygoers dispersed. The police and emergency medical services
personnel arrived a few minutes after the shooting. Monteiro
was lying on the floor, breathing but unresponsive. He was
5
transported by ambulance to a nearby hospital. Monteiro died
from a gunshot wound to the head.
The police recovered a spent shell casing from the
ambulance and, during Monteiro's autopsy, recovered three
fragments of a shell casing from Monteiro's head. The shell
casing from the ambulance was from a .22 caliber firearm, and
the fragments were consistent with being from the same firearm.
The police spoke to witnesses the night of the party, many
of whom gathered outside of the house after the incident. At
least one of the partygoers knew the defendant by name and
provided that information to police.5 Using that information,
Wareham police compiled two photographic arrays containing the
defendant's photograph. The following morning, the police
showed the first array containing eight photographs to the
witness who knew the defendant. The witness did not identify
the defendant's photograph in this array. Less than one hour
later, the police showed the witness the second array containing
six photographs. The witness identified the defendant in the
second array, explaining that he recognized the defendant in the
first array but did not identify him because he was "nervous."
Approximately one and one-half hours after the
identification, Wareham police notified police in New Bedford
5
This witness had seen the defendant approximately five
times during the prior three years.
6
that the defendant was a suspect in a homicide investigation and
requested that they question him. Within one hour of the
dispatch, New Bedford police officers observed the defendant
walking and stopped their cruiser to speak to him. The
defendant stopped and agreed to accompany them to the police
station for questioning. At the police station, the officers
recorded the interview. The defendant told them that he had
been at the party but stayed outside the house. After
questioning the defendant for approximately one hour, the police
released him.
The following morning, the defendant went to the house of a
woman he had known since he was a child and asked if he could
stay with her because the police were looking for him in
connection with an incident at a party in Wareham. She said,
"no," because her family was there. As she hugged him goodbye,
she felt something "heavy" and "hard" in the defendant's waist.
State police arrested the defendant later that day pursuant
to a warrant. He was wearing a black hat displaying the word
"Invincible." The State police interrogated the defendant on
September 6 and 7, 2009.6 The defendant told police that he was
at the party, he did not have a gun, but he knew that at least
6
In total, police interviewed the defendant four times
between September 5 and 7, 2009. All four interviews were
recorded. Redacted versions of the first three recordings were
played for the jury.
7
four people in his group were carrying firearms. He said that
Santos and his "squad" had guns and threatened someone in the
New Bedford group. He said he saw the shooter "cock" the
firearm and "pistol whip" Santos, and that he was about five or
six feet from the shooter when the gun was fired. The defendant
also told police that one of the people in his group, "Justin,"
hid a gun after the party, and he directed police to the
apartment where the gun could be found. The police seized a .38
caliber firearm from the apartment, which did not fire the shell
casing obtained from the ambulance and was not consistent with
the firearm used as the murder weapon.7
Within forty-eight hours of the shooting, four witnesses
identified the defendant as the shooter in photographic
arrays.8,9 They and other witnesses described the shooter as
7
A man who lived in the apartment testified that the
defendant had asked him to hide the firearm "one or two days"
before the search on September 7, 2009, and a woman, the man's
wife, testified that the defendant's visit occurred before the
date of the party.
8
Sheldon Santos testified that the defendant was at the
party, but "nothing happened" between them. A State police
trooper testified that Santos had previously pointed to the
defendant in a photographic array and said, "he was in the house
acting cool, then he went outside, then he came back in. I
think I might have been fighting him." Santos, however, became
uncooperative after police asked him to circle the defendant on
the array for identification, and he refused to speak further
with the police.
8
between five feet, five inches and five feet, nine inches tall,
skinny, "light skinned," and wearing a black hat. One of the
witnesses testified that the shooter was wearing a hat
displaying the word "Invincible." The police showed the
witnesses an additional photographic array containing other
people mentioned by the defendant as being at the party. Except
for one witness who identified a photograph of Justin as being
at the party, no other potential suspects were identified.
Discussion. The defendant challenges a number of issues at
trial, framing them as errors by the judge, the prosecutor,
defense counsel, or some combination thereof. We consider each
claim to determine "whether there was an error in the course of
the trial (by defense counsel, the prosecutor, or the judge)
and, if there was, whether that error was likely to have
influenced the jury's conclusion." Commonwealth v. Wright, 411
Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).
1. Identification evidence. The defendant filed a motion
to suppress the four eyewitness identifications of him as the
shooter, claiming that the photographic arrays were
unnecessarily suggestive and tainted the remaining
identifications because the witnesses discussed the incident in
9
One witness identified a photograph as someone who was at
the party, but the identified photograph depicted someone who
was incarcerated at the time of the party.
9
person and through social media. Two witnesses failed to
identify the defendant in an initial photographic array
containing eight photographs, but subsequently identified the
defendant when shown the second array containing six
photographs. The defendant was the only person depicted in both
arrays. The defendant also argued that the following procedures
caused the arrays to be unduly suggestive: the photographs were
not presented sequentially, the arrays were not blindly
administered, and all arrays should have contained at least
eight photographs.
At the evidentiary hearing, the defendant focused on the
two identifications that were obtained through repetitive
arrays. The judge concluded that the repeat arrays were not
unnecessarily suggestive. First, the photographs in each array
were similar to the defendant's photographs. Next, the second
array contained a more recent photograph of the defendant with
shorter hair, which was more similar to his appearance at the
party, and both witnesses told police that the shooter had
shorter hair than the individuals depicted in the photographs in
the first array. Moreover, the judge found that the witness who
knew the defendant before the party was not swayed by the
presence of his photograph in repeat arrays, crediting the
witness's testimony that he did not identify the defendant in
the first array out of fear.
10
On appeal, the defendant does not claim error in the denial
of the motion to suppress, but argues that the prejudicial
effect of the photographic array procedure; the conflicting
witness testimony; the consumption of alcohol and marijuana by
eyewitnesses; and a "rumor mill"10 created through witness
discussion of the incident prior to the identifications, social
media, and media coverage caused a substantial likelihood of a
miscarriage of justice. The defendant's argument lacks merit.
The defendant "has a due process right to identification
procedures meeting a certain basic standard of fairness."
Commonwealth v. Silva-Santiago, 453 Mass. 782, 794 (2009),
quoting Commonwealth v. Dougan, 377 Mass. 303, 316 (1979). We
discourage the use of repeated arrays containing a suspect's
photograph, see Commonwealth v. Scott, 408 Mass. 811, 826
(1990), and the use of repeated arrays could make identification
procedures unnecessarily suggestive if the police do not have
good cause for the use of such procedure. In this case, the
judge implicitly found good cause because the second array was
given to both eyewitnesses after each commented that the
10
The partygoers gathered outside of the house after the
shooting for fifteen to twenty minutes without being separated
and discussed the incident through social media and other
interactions before being individually questioned by police.
The defendant claims that these conditions created a "rumor
mill" that caused the identifications to be based on
speculation.
11
perpetrator's hair was shorter than was depicted in the
photographs used in the first array. Moreover, we recognize
that police did not follow procedures that we have previously
recommended: "double-blind procedure" and "sequential method."
See Silva-Santiago, supra at 797-800. However, the absence of
the recommended procedures goes only to the weight of the
identifications, not admissibility.11 Id. at 797-799.
Our conclusion that the identifications were not
"unnecessarily suggestive" does not end the inquiry. Even if
otherwise admissible, a judge may suppress identification
evidence if "its probative value is substantially outweighed by
the danger of unfair prejudice." Commonwealth v. Johnson, 473
Mass. 594, 599 (2016), quoting Commonwealth v. Crayton, 470
Mass. 228, 249 n.27 (2014). Mass. G. Evid. § 403 (2016). In
11
We also note that a State police trooper administering
each of the repeat arrays to one witness told the witness during
her first array, after she failed to make an identification,
"just to think about it and it's important if she did see
somebody in there that, you know, she does the right thing, as
we would expect other people to do so." Before each of the two
arrays shown to this witness, the trooper properly notified her
that the alleged wrongdoer may or may not be in the photographs
depicted in the array, as required by Commonwealth v. Silva-
Santiago, 453 Mass. 782, 798 (2009). This comment, however,
detracted from the substance of that notification. Where the
officer properly followed the notification protocol expressed in
Silva-Santiago, we do not conclude that the officer's statement
caused the identification that the witness made during the
second array to be inadmissible. We, again, strongly recommend
that photographic arrays be performed by law enforcement
officers who do not know the identity of the suspect in order to
protect against similar statements being inadvertently made.
12
this analysis, the "probative value of the identification
depends on the strength of its source independent of the
suggestive circumstances of the identification." Johnson, supra
at 601. Relevant factors include "the witness's opportunity to
observe the offender at the time of the crime, the amount of
time between the crime and the identification, whether the
witness's earlier description of the perpetrator matches the
defendant, . . . whether the witness earlier identified another
person as the perpetrator or failed to identify the defendant as
the perpetrator," and "the witness's prior familiarity with the
person identified." Id.
The record reflects, however, that the defendant would not
have been able to meet his burden to establish that the
prejudice resulting from the admission of the identifications
outweighed their probative value.12 The four eyewitness
identifications were made within forty-eight hours of the
shooting, the witnesses observed the shooter from nearby
locations -- one witness being "a foot away" from the gunman at
the time -- and their ability to observe and report the incident
was not impaired by alcohol or drugs.
12
A "defendant must timely file [such a] motion before
trial, . . . and bears the burden of proof by a preponderance of
the evidence" (citation omitted). Commonwealth v. Johnson, 473
Mass. 594, 599 (2016). The defendant did not file such a
motion, but we consider this argument under G. L. c. 278, § 33E.
13
2. Last-minute witness. The defendant claims that he was
unfairly surprised by the testimony of a witness not listed on
the pretrial witness list and that trial counsel was ineffective
for failing to object to this testimony. The Commonwealth has
an affirmative duty to timely disclose proposed witnesses. See
Mass. R. Crim. P. 14 (a) (1) (A) (iv), (v), as amended, 444
Mass. 1501 (2005). A judge has "significant discretion in
deciding whether late-discovered or late-disclosed witnesses
should be excluded from testifying" as a remedy for the late
disclosure. Commonwealth v. Nolin, 448 Mass. 207, 225 (2007),
quoting Commonwealth v. Trapp, 423 Mass. 356, 363-364, cert.
denied, 519 U.S. 1045 (1996). The relevant inquiry is whether
the defendant has sufficient time to investigate the proposed
testimony. Commonwealth v. Lopez, 433 Mass. 406, 413 (2001).
In that regard, "it is the consequences of the delay that
matter, not the likely impact of the nondisclosed evidence."
See Commonwealth v. Baldwin, 385 Mass. 165, 175 (1982), quoting
Commonwealth v. Wilson, 381 Mass. 90, 114 (1980).
Here, the prosecutor told the judge on the fifth day of
trial that he had mistakenly omitted a witness from the list.
He asked that the witness, a Wareham police officer, be
permitted to testify and asserted that defense counsel had
agreed to such the prior day. The judge granted the request.
The officer, who was the first at the scene of the shooting,
14
testified that he saw a shell casing from a small caliber
firearm on the floor near Monteiro's body when he approached to
provide care. Police did not find that shell casing or any
other ballistics evidence at the house.
The defendant has not shown any prejudice from the
testimony or demonstrated that he could have benefited if
defense counsel had objected. The record reflects that defense
counsel agreed to the prosecutor's request, suggesting that he
had an adequate opportunity to prepare for the testimony.
Moreover, he thoroughly cross-examined the witness on matters
relating to the central issue in the trial -- the credibility of
the eyewitness identifications. The officer testified after the
five eyewitnesses, all of whom had been shown photographic
arrays. Defense counsel's cross-examination focused on
differences between recommended procedures for arrays and those
used during this investigation. Defense counsel may have
strategically decided not to object to this witness so that he
could challenge the identification techniques at this stage of
trial.13
13
The defendant raised this and other claims of ineffective
assistance of counsel for the first time on appeal, leaving us
to consider the issues based only on the trial record. Relief
on a claim of ineffective assistance based on the trial record
is the weakest form of such a claim because it is "bereft of any
explanation by trial counsel for his actions and suggestive of
strategy contrived by a defendant viewing the case with
15
3. Prosecutor's closing argument. The defendant
challenges the following two portions of the prosecutor's
closing argument:
"In counsel's closing, experienced and skilled
counsel, . . . he hit on a number of points. The problem
is with his arguments regarding for example social media.
You heard a lot of questions about it. There's one problem
with that argument. There was no testimony to back up the
fact that anyone was influenced in their identification by
social media, by popular media, TV, newspaper.
". . .
"Did you see anything in these young people . . . that
would convince you that they would come in here and as the
argument was made hold someone accountable; that was the
name that they knew so they want to say that. They want
someone to be held accountable for this and so they just
went with this, this guy over there. I'll say it was him.
Do you believe that they would come in and do that? Did
you hear anything about those individuals, did you see
anything in them as you sized them up that would convince
you that they would come in and do that because someone's
got to pay. It might as well be that guy over there. It's
ridiculous. There's no reason to believe that and you
shouldn't believe that."
"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. Andrade, 468
hindsight." Commonwealth v. Gorham, 472 Mass. 112, 116 n.4
(2015), quoting Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5
(2002). "[T]he factual basis of the claim [must] appear[]
indisputably on the trial record." Commonwealth v. Zinser, 446
Mass. 807, 811 (2006), quoting Commonwealth v. Adamides, 37
Mass. App. Ct. 339, 344 (1994). The defendant's claim here does
not appear indisputably on the trial record where defense
counsel's lack of objection may have been a strategic decision.
16
Mass. 543, 552 (2014), quoting Commonwealth v. Whitman, 453
Mass. 331, 343 (2009).
Specifically, the defendant argues that the prosecutor's
statement regarding social media was not a fair inference from
the evidence. See Commonwealth v. Guy, 441 Mass. 96, 110
(2004), citing Commonwealth v. Stote, 433 Mass. 19, 28 (2000)
("Prosecutors must limit the scope of their closing arguments to
facts in evidence and the fair inferences that may be drawn
therefrom"). We disagree. Although there was evidence that the
partygoers discussed the shooting, the eyewitnesses testified
that they were not influenced by outside sources in making their
identifications. Moreover, the only witness who testified that
she had used social media in an attempt to "look[] for anybody
else that [she] may have seen at the party" identified an
individual who was incarcerated at the time, not the defendant.
The defendant also argues that the prosecutor's discussion
of the eyewitness testimony improperly vouched for credibility.
"While a prosecutor may not vouch for the truthfulness of a
witness's testimony, . . . we consistently have held that, where
the credibility of a witness is an issue, counsel may 'argue
from the evidence why a witness should be believed'" (citations
omitted). Commonwealth v. Brewer, 472 Mass. 307, 315 (2015).
During the defendant's closing, counsel challenged the
credibility of the first identifying witness when he argued that
17
the "police [were] signaling to [him] . . . who they want him to
pick up, and there's no love lost at this point between [that
witness] and anybody from New Bedford who was at that party this
evening." The prosecutor properly responded by arguing that the
jury could reject that suggestion by recalling the
characteristics of the witnesses' testimony.
Because the prosecutor's statements were not improper,
trial counsel was not ineffective for failing to object. Even
if there had been an appearance of impropriety in the
statements, the judge carefully and clearly instructed the jury
that closing arguments are not evidence and that they alone were
tasked with determining credibility. These instructions offset
any prejudice.14 See Brewer, supra.
4. Jury instructions. The defendant challenges the
omission of three jury instructions: (a) involuntary
manslaughter; (b) humane practice; and (c) intoxication. He
argues that these omissions created a substantial likelihood of
a miscarriage of justice and that trial counsel was ineffective
for failing to object.
14
Because the defendant did not object, we would review any
errors to determine whether they created a substantial
likelihood of a miscarriage of justice. Commonwealth v.
Cassidy, 470 Mass. 201, 225-226 (2014), citing Commonwealth v.
Francis, 450 Mass. 132, 140 (2007).
18
a. Involuntary manslaughter. As here, "where a defendant
is charged with murder, an instruction on involuntary
manslaughter is appropriate if any 'reasonable view of the
evidence would [permit] the jury to find 'wanton [or] reckless'
conduct rather than actions from which a 'plain and strong
likelihood' of death would follow.'" Commonwealth v. Tavares,
471 Mass. 430, 438 (2015). After the last witness testified,
but before the Commonwealth rested, the judge advised the
parties that the evidence so far did not warrant an instruction
on "either species of manslaughter." Trial counsel said that he
"would ask for [a manslaughter instruction]," but that he was
"not going to argue" with that ruling.
The judge did not err in concluding that the evidence did
not support such an instruction. In Commonwealth v. Braley, 449
Mass. 316 (2007), we concluded that "intentionally discharging a
firearm in the direction of another person creates a plain and
strong likelihood of death." Id. at 332, quoting Commonwealth
v. Mack, 423 Mass. 288, 290 (1996). Here, witnesses testified
that the defendant pointed a gun at Santos's head, the gun made
a sound as if it was being cocked, the defendant fired three
shots in quick succession, and Monteiro was shot from a distance
of no more than two feet. Because a manslaughter instruction
was not warranted, trial counsel was not ineffective for failing
to object.
19
In any event, the jury convicted the defendant of felony-
murder, but they did not find him guilty of deliberate
premeditation. "Where the felony-murder rule applies, generally
the defendant is not entitled to an instruction on
manslaughter." Commonwealth v. Evans, 390 Mass. 144, 151
(1983), citing Commonwealth v. LePage, 352 Mass. 403, 419
(1967). Because the killing occurred during the commission or
attempted commission of an armed robbery, the instruction was
not warranted. See Commonwealth v. Neves, 474 Mass. 355, 370-
371 (2016).
b. Humane practice. A "humane practice" instruction is
required where a defendant's statements are offered in evidence
and the voluntariness of those statements is "a live issue at
trial." Commonwealth v. Tavares, 385 Mass. 140, 150, cert.
denied, 457 U.S. 1137 (1982), quoting Commonwealth v. Alicea,
376 Mass. 506, 523 (1978). The defendant argues that the judge
erred in failing to give a humane practice instruction and trial
counsel was ineffective for failing to request it because
evidence suggested that the defendant had been intoxicated and
consumed marijuana the night of the party and that he had a
"terrible headache" and was "emotionally upset" during the
interview the following day.
Counsel did not challenge the voluntariness of any
statements through pretrial motions or at trial on these
20
grounds.15 Additionally, counsel specifically declined to have a
humane practice instruction read to the jury. The defendant's
theory at trial was mistaken identity -- that he was at the
party but not involved in the altercation. The statements that
the defendant gave to police align with that theory and, where
the defendant did not testify, produced the only evidence in
support of his claim. It "would be anomalous to require the
judge to inquire into the issue 'where it might be contrary to
the theory and strategy of the defendant.'" Commonwealth v.
Benoit, 410 Mass. 506, 513 (1991), quoting Commonwealth v.
Pratt, 360 Mass. 708, 714 (1972). There was no error.
c. Intoxication. "A jury instruction on voluntary
intoxication is required only where there is evidence of
'debilitating intoxication' that could support a reasonable
doubt as to the defendant's ability to form the requisite
criminal intent." Commonwealth v. Lennon, 463 Mass. 520, 523
(2012). The defendant argues that the judge erred in failing to
give an intoxication instruction and trial counsel was
15
Trial counsel challenged the admission of the first
interview conducted by the New Bedford police, arguing that the
defendant was illegally stopped and seized prior to the
interview, that the statement was not voluntary because the
police impermissibly gave him the impression that he could only
leave if he cooperated, that the police used trickery, and that
the interview was recorded without the defendant's consent. The
judge denied the defendant's motion to suppress. During
pretrial motions and at trial, the defendant only challenged
specific portions of the interviews.
21
ineffective for failing to request it because there was evidence
supporting the defendant's intoxication.16
There was no evidence that the defendant's condition at the
time of the shooting approached the level of "debilitating
intoxication" required for the instruction. Lennon, supra. One
witness testified that people in the group from New Bedford were
drinking liquor, but she did not remember everyone in the group
drinking. Although the defendant told police during the
interrogation that he was "drunk out of [his] mind" and "high"
at the party, these self-serving statements are insufficient to
warrant an intoxication instruction where there was nothing to
support the inference that intoxication impaired the defendant's
ability to form the requisite criminal intent at the time of the
altercation. Commonwealth v. Moses, 436 Mass. 598, 603 (2002).
Cf. Commonwealth v. Gonzalez, 469 Mass. 410, 412-413, 422 (2014)
(error to omit intoxication instruction where evidence showed
defendant had spent evening drinking, was intoxicated two hours
before murder, and had "'red, glassy eyes' and smelled of
alcohol" when police arrived shortly after murder).
16
The judge asked the defendant if he would be requesting
an intoxication or manslaughter instruction, and counsel
responded that he "believe[d]" he would be asking for a
manslaughter instruction. He did not request an intoxication
instruction.
22
5. Judicial bias. The defendant argues that the judge
prejudiced his case by demonstrating partiality toward the
Commonwealth. Specifically, the defendant claims that the judge
engaged in the following conduct suggestive of such a bias: (a)
allowing the prosecutors to ask leading questions of their
witnesses; (b) allowing the prosecutor to introduce statements
during trial after asserting pretrial that he did not intend to
admit them; (c) asking questions of a witness; (d) instructing
the jury that their memory controlled after counsel conducted
what the defendant describes as a "very effective cross-
examination" regarding prior testimony;17 and (e) assisting the
prosecutor to introduce evidence against the defendant.
"The role of the trial judge is that of an impartial
arbiter and not that of a prosecutor." Commonwealth v. Sneed,
376 Mass. 867, 870 (1978). A judge "is there to see that
justice is done, or at least to see that the jury have a fair
chance to do justice . . . a first-rate trial judge will find
and tread the narrow path that lies between meddlesomeness on
17
The judge instructed the jury as follows:
"Jurors, I think it is perhaps an appropriate time,
because both sides have referred to what may have been said
by a witness while on this stand, and perhaps other
witnesses as well, I am not going to comment upon the
testimony of any witness in this case, but I do want you to
remember something that I told you right at the outset. It
is your memory of the testimony, your memory of the
evidence, that controls this case. No one else's."
23
the one hand and ineffectiveness and impotence on the other."
Commonwealth v. Brown, 462 Mass. 620, 632 (2012), quoting
Commonwealth v. Haley, 363 Mass. 513, 519 (1973). Here, the
judge performed commendably during this lengthy trial.
The judge sustained defense objections to leading questions
by the prosecutor, and the defendant did not object to other
leading questions that are now challenged. Sua sponte, the
judge alerted the prosecutor to his leading questions before the
defendant objected. These actions conform with the judge's task
to "see that justice is done." Brown, 462 Mass. at 632.
Although the judge allowed the Commonwealth to play three
of the defendant's four recorded statements during trial when it
originally intended to play only the first recording, the
defendant was aware of the remaining recordings and had
submitted his proposed redactions to the judge before trial.
The judge resolved any issues with redactions in favor of the
defendant for the remaining recordings when he ruled that the
Commonwealth would not be allowed to play those interviews
unless the prosecutor obtained the defendant's agreement
regarding redactions.
24
The judge did not err in questioning a witness.18 A judge
may properly question a witness, even where to do so may
"reinforce the Commonwealth's case, so long as the examination
is not partisan in nature, biased, or a display of belief in the
defendant's guilt." Commonwealth v. Festa, 369 Mass. 419, 422
(1976), and cases cited. Although defense counsel requested
that the judge refrain from any further questioning, he stated
that he did not "have a problem with that question[ing]," and
that he "was just raising [his] concerns." We discern no error
where the defendant has failed to establish that the judge's
questions were inappropriate on any of these grounds.
Additionally, the judge did not err in instructing the jury
that their memory controls. This is a proper statement of the
law, and a judge has discretion as to the timing of
instructions. See Mass. R. Crim. P. 24 (b), 378 Mass. 895(1979) (no limitation on timing of instructions).
The judge did not impermissibly assist the prosecutor. The
defendant challenges a number of rulings and comments made by
the judge, none of which falls outside a judge's permissible
18
The defendant argues that the judge demonstrated
partiality by asking questions of a witness. One such example
is the judge's questioning of one of the partygoers during
direct examination to identify on the diagram of the house
locations where the shooting occurred, the "front door," the
"back door," the table where the witness was seated, and the
locations that the witness described as "lit well" and "not lit
very well and dark."
25
discretion to control court proceedings. A judge must be "the
directing and controlling mind at the trial, and not a mere
functionary to preserve order and lend ceremonial dignity to the
proceedings." Wilson, 381 Mass. at 118, quoting Commonwealth v.
Lewis, 346 Mass. 373, 379 (1963), cert. denied, 376 U.S. 933(1964).
Our conclusion that the judge did not exceed his authority
is supported by his instructions to the jury, wherein he
informed them that if he "somehow conveyed to [them] an
impression of some opinion [he] may have as to the outcome of
this trial, [they] should disregard it." Commonwealth v.
Keniston, 423 Mass. 304, 311 (1996).
6. Firearms convictions. The defendant claims that his
rights under the Second and Fourteenth Amendments to the United
States Constitution were violated where he was convicted of
possessing a firearm without a firearm identification card and
the Commonwealth produced no evidence that he lacked a firearms
license. The defendant properly concedes that we have rejected
this claim in previous cases, see, e.g., Commonwealth v. Powell,
459 Mass. 572, 582 (2011), cert. denied, 132 S. Ct. 1739 (2012),
because the defendant bears the burden to come forward with
26
evidence demonstrating that he was licensed to carry a firearm.
We discern no reason to revisit this conclusion.19
7. Relief pursuant to G. L. c. 278, § 33E. In accordance
with our review pursuant to G. L. c. 278, § 33E, we vacate the
defendant's armed robbery conviction. Although we discern no
other basis on which to grant the defendant relief, we have
considered in our § 33E review whether the lack of congruence
between the jury's verdict finding the defendant guilty of
felony-murder "by means of being in joint venture with the
person who performed the acts which caused the death of . . .
Monteiro" and the evidence that the defendant alone shot the
Monteiro was error. We conclude that it was not.
The Commonwealth proceeded at trial on the theories of
deliberate premeditation and felony-murder, with the underlying
felony being the armed robbery of Santos. The felony-murder
theory was supported by evidence that the defendant pointed a
gun at Santos, robbed Santos of his gold chain, and then shot
Monteiro when he intervened. The Commonwealth alleged a joint
venture with other members of the New Bedford group and
requested a joint venture instruction. The judge acquiesced and
instructed the jury on joint venture during the final
19
The defendant also waived the defense of license by
failing to file a pretrial notice as required by Mass. R. Crim.
P. 14 (b) (3), as appearing in 442 Mass. 1518 (2004). See
Commonwealth v. Humphries, 465 Mass. 762, 771 (2013).
27
instructions as he had done in the preliminary instructions to
the jury. Trial counsel did not object to the joint venture
instruction when it was requested or after the conclusion of the
jury instructions. The judge, with the parties' agreement,
prepared a special verdict slip with the following options:
"[1.] Not Guilty
"[2.] Guilty of First-Degree Murder
"[a.] By Deliberate Premeditation
"and/or
"[b.] Felony Murder
"[i.] By means of performing the acts which
caused the death of Scott Monteiro while in the
commission or attempted commission of a life
felony [i.e. armed robbery]
"or
"[ii.] By means of being in joint venture with
the person who performed the acts which caused
the death of Scott Monteiro while in the
commission or attempted commission of a life
felony [i.e. armed robbery].
"[3.] Guilty [of] Second-Degree Murder
"[a.] By means of performing the acts which caused
the death of Scott Monteiro
"or
"[b.] By felony murder [i.e. performing the acts
which caused the death of Scott Monteiro while being
in unlawful possession of a firearm in violation of
G. L. c. 269, (§) 10 (a)]."
28
The parties agreed to this verdict slip notwithstanding the lack
of evidence that anyone other than the defendant shot Monteiro.
The jury found the defendant guilty of felony-murder under the
second option: that the defendant was in a "joint venture with
the person who performed the acts which caused the death" of
Monteiro.
Although the jury's verdict slip answer does not mesh
precisely with the evidence that the defendant alone was the
shooter, the lack of consistency does not vitiate the guilty
finding. Where, as here, the verdict is based on joint venture,
the question we ask is whether the defendant engaged in conduct
sufficiently culpable to establish his participation in the
crime as a joint venturer. Commonwealth v. Zanetti, 454 Mass.
449, 467-468 (2009). As long as there is "sufficient evidence
of the defendant's active participation in the crime and that he
had or shared the necessary intent," it is not necessary that
the jury "determine specifically whether the defendant
participated as an accomplice or as a principal." Commonwealth
v. Rosa, 468 Mass. 231, 246 (2014). In this case, where the
underlying felony was armed robbery, the Commonwealth was also
required to establish that the defendant knew that at least one
of the participants possessed a weapon. Commonwealth v. Garcia,
470 Mass. 24, 31 (2014).
29
In any event, the evidence was more than sufficient to
establish that the defendant was an "active [participant] in the
crime" and "shared the necessary intent" to carry out the crime,
Rosa, supra, and that he knew at least one other participant in
the crime was armed, Garcia, supra. The defendant admitted
through his statements, presented during the Commonwealth's
case, that he was at the party, that he knew that at least four
people in his group were carrying firearms, that he understood
that people in his group "probably were planning on robbing"
Santos, that he saw the shooter "cock" the firearm and "pistol
whip" Santos, and that he was about five or six feet from the
shooter when the gun was fired. Thus, even if the jury, or at
least one juror, discredited the Commonwealth's evidence that
the defendant was the shooter, the jury were warranted in
finding the defendant guilty of felony-murder as a joint
venturer on this alternative theory.
So ordered.