Commonwealth v. Mendez ( 2017 )

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SJC-11869
SJC-11870
COMMONWEALTH vs. CHARLES MENDEZ
(and eleven companion cases1).
Bristol. October 11, 2016. - February 22, 2017.
Present: Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ.
Homicide. Firearms. Robbery. Assault and Battery by Means of
a Dangerous Weapon. Felony-Murder Rule. Constitutional
Law, Search and seizure, Reasonable suspicion. Search and
Seizure, Reasonable suspicion. Practice, Criminal, Capital
case, Motion to suppress, Trial of indictments together,
Argument by prosecutor, Instructions to jury. Witness,
Credibility. Jury and Jurors.
Indictments found and returned in the Superior Court
Department on January 7, 2011, and February 11, 2011.
Pretrial motions to suppress were heard by Renee P. Dupuis,
J., and a motion for joinder was also heard by her; and the
cases were tried before D. Lloyd Macdonald, J.
Cathryn A. Neaves for Charles Mendez.
Jennifer H. O'Brien for Tacuma Massie.
Yul-mi Cho, Assistant District Attorney, for the
Commonwealth.
1
Five against Charles Mendez and six against Tacuma Massie.
2
BUDD, J. On the evening of November 18, 2010, Edward
Platts was shot and killed while sitting in his motor vehicle at
a housing complex in Fall River. The defendants, Charles Mendez
and Tacuma Massie, were each indicted on charges of (1) murder
in the first degree2; (2) carrying a firearm without a license;
(3) carrying a loaded firearm without a license; and (4) armed
robbery. They additionally were charged with assault and
battery by means of a dangerous weapon and armed robbery on
separate indictments in connection with a separate incident
involving a different individual. The motion judge denied the
defendants' motions to suppress evidence seized in connection
with their warrantless stop. At the conclusion of a joint jury
trial in September, 2013, the defendants were convicted of all
charges.
Each defendant filed a timely notice of appeal. Both
assert the following errors: the denial of his motion to
suppress; the joinder at trial of the indictments for two
separate incidents; and portions of the prosecutor's closing
argument. Massie further argues that there was insufficient
evidence to convict him of the armed robbery and felony-murder.
Each defendant separately asserts additional errors pursuant to
Commonwealth v. Moffett, 383 Mass. 201, 208 (1981).
2
Both defendants were charged on a theory of felony-murder;
Mendez was also charged on a theory of deliberate premeditation.
3
We affirm the defendants' convictions and decline to
exercise our extraordinary power under G. L. c. 278, § 33E.
1. Background. We summarize the facts in the light most
favorable to the Commonwealth, reserving certain details for
discussion of specific issues.
On the evening of November 18, 2010, just after 6 P.M., the
defendants ambushed and robbed Ryan Moitoso in a parking lot.
Moitoso thought he was meeting Mendez's girl friend to sell her
marijuana. The girl friend drove the defendants near the area
where she was to meet Moitoso and let them out of her vehicle.
As Moitoso spoke with the girl friend, the defendants approached
him from behind. One of them hit him in the head with a hard
metal object and told him to empty his pockets. Moitoso turned
over some cash and marijuana, and heard a clicking noise that
sounded like a gun being cocked, before being allowed to return
to his vehicle. The defendants got back into the girl friend's
vehicle, and she drove away. When she asked what had happened,
one of the defendants replied, "That's life," and tossed a bag
of marijuana into the front passenger area.
Next, the girl friend dropped the defendants off at a
nearby housing complex where Massie had arranged to meet Platts
(victim) on the pretext of wanting to make a marijuana purchase.
The defendants intended to rob the victim of the approximately
$4,000 that, Massie had learned, he was carrying that day.
4
Prior to the meeting, a witness was parked in the housing
complex and, while sitting in his vehicle, observed two men
fitting the description of the defendants walk by him. The
victim, who had a puppy with him, parked his vehicle behind the
witness's vehicle. The witness then observed the same two men
walk toward the back of his vehicle. Within seconds, the
witness heard a gunshot and a vehicle engine accelerate, and
then he felt the victim's vehicle hit the back of his vehicle.
The witness telephoned 911 and told the dispatcher that a man
had been shot. A resident of the complex looked out of her
window at the sound of the gun shot to observe an individual
matching Mendez's description get out of the passenger side of
the victim's vehicle and quickly leave the scene carrying
something clutched to his chest.
In the meantime, Mendez's girl friend received several
telephone calls from Massie between 6:41 and 6:49 P.M. She
returned to the complex and picked up both Massie and Mendez,
pulling away quickly from the curb where they entered her
vehicle. A State trooper who was in the housing complex
investigating the 911 call observed the vehicle's hasty
departure, and followed it. See part 2.a, infra.
When the defendants were arrested, both were carrying
handguns; Massie's was loaded. Massie had more than $4,000 in
cash, Mendez's clothes were stained with the victim's blood, and
5
police found the victim's puppy in the vehicle. Police found
Mendez's hat in the victim's vehicle.
The victim was shot at close range behind his right ear as
he sat in his vehicle. At trial, Mendez claimed that the victim
had drawn a gun on him and, after a struggle, he shot the victim
in self-defense. He also claimed that the handgun that he had
had in his possession when he was apprehended belonged to the
victim.
2. Discussion. a. Motion to suppress. The defendants
claim error in the denial of their motions to suppress evidence
seized as a result of a warrantless stop that took place soon
after the shooting. The constitutionality of the stop depends
on the police officer having reasonable suspicion of criminal
activity at the time it occurred. Commonwealth v. DePeiza, 449
Mass. 367, 371 (2007). Reasonable suspicion "must be grounded
in 'specific, articulable facts and reasonable inferences
[drawn] therefrom' rather than on a 'hunch.'" Id., quoting
Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
When reviewing a ruling on a motion to suppress, "we accept
the [motion] judge's subsidiary findings of fact absent clear
error and leave to [that] judge the responsibility of
determining the weight and credibility to be given oral
testimony presented at the motion hearing." Commonwealth v.
Wilson, 441 Mass. 390, 393 (2004). However, "[w]e review
6
independently the application of constitutional principles to
the facts found." Id.
We summarize the facts found by the motion judge. After
the witness's vehicle was hit by the victim's, the witness
telephoned 911 to report that a person had been shot in the head
in his vehicle and was dead, and that the individuals involved
had fled.3 A State police trooper with the violent fugitive
apprehension section, who was dressed in plain clothes and
traveling nearby in an unmarked police cruiser, heard the police
transmission of this report and headed toward the housing
development. Approximately two blocks from the development he
observed a person moving quickly toward a parked vehicle.
Without stopping, the trooper relayed the registration plate
number and learned that the vehicle was registered to a woman
with no criminal history. Moments later, and less than ten
minutes after the initial 911 transmission, he arrived at the
complex and began to patrol, looking for suspicious activity.
As the trooper drove through the housing complex, which he
found to be unusually quiet, he observed an individual, later
identified as Mendez, make a "beeline" to a white Honda Civic
automobile that was stopped at the curb with its engine running.
Mendez entered at the rear passenger side of the vehicle, which
3
The witness told the 911 operator that the perpetrator or
perpetrators fled in another motor vehicle. In fact, the
defendants initially fled on foot.
7
started to pull away quickly, before Mendez had fully entered or
closed the door. Because of what appeared to the trooper to be
a very unusual absence of any other people and lack of any other
activity on the streets or sidewalks in the housing complex, and
the vehicle's quick departure from the area, the trooper
followed the vehicle while it traveled in a "serpentine route,"
meandering through the city streets.4 Meanwhile, police who had
responded to the scene at the housing complex confirmed to the
trooper that a man had been shot in the head and killed.
While following the vehicle, the trooper reported its
registration plate number and learned that an individual
associated with the address of the vehicle's owner had "lots of
violence" on his record, including a firearms charge, and
4
Mendez claims that it was error for the motion judge to
find that there were no other suspect vehicles in the area when
the trooper saw the white Civic because the trooper earlier had
observed and relayed the registration plate number of another
vehicle that was located two blocks away from the complex and
had its motor running. There was no error. The motion judge
made clear in her findings that, aside from the first vehicle,
which the trooper had eliminated from suspicion before he even
saw Mendez, the trooper "did not observe a pedestrian, a car
containing people, a running motor vehicle or any other normal
activity for that time of day in such a large housing complex."
Additionally, Mendez points to no testimony that indicates this
vehicle's motor was running. Mendez further contends that there
was no basis for the judge's finding that residents of the
housing development stayed inside after the shooting because
they were afraid of being shot. This finding, even if
conclusory, is a reasonable inference given the uncontested fact
that, according to the trooper and credited by the judge, there
was no activity to speak of in the area at the time the white
vehicle made its hasty exit.
8
pending drug charges. The trooper, who could see that there
were two persons seated in the back of the vehicle, radioed for
backup. Approximately four miles away from the housing complex,
the driver of the vehicle stopped in front of a three-family
home but kept the motor running. As the trooper was without
backup or a place to park, he stopped his vehicle in the middle
of the street and waited. Approximately fifteen to thirty
seconds later, the two defendants got out of the back seat of
the vehicle at the same time and turned to face him. They were
speaking to one another and both had their hands in their jacket
pockets. In fear of his safety, the trooper got out of his
vehicle, showed his badge and said, "Police, don't move." The
two men fled in opposite directions. Mendez ran toward the
trooper but soon returned to the white vehicle, getting in and
telling the driver to "take off." The trooper drew his weapon
and ordered the driver, later identified as Mendez's girl
friend, to shut off the motor; she did so. Once another officer
arrived, police recovered a handgun that was tucked into
Mendez's waistband.
In the meantime, a third officer saw Massie, who was less
than one block away from the white vehicle and running with one
hand in his pocket. The officer chased him and ordered him to
stop. Massie did not comply, but he was apprehended; he was
carrying a loaded semiautomatic pistol and cash.
9
All parties agree that both defendants were seized in a
constitutional sense when the trooper announced that he was a
police officer and ordered the men not to move. On appeal, the
defendants argue that the trooper stopped them on a hunch rather
than reasonable articulable suspicion of criminal activity.
They claim that the information available to the trooper should
not have caused him to follow them; that that they could just as
easily have been on a "leisurely" drive through the city,
without any particular place to be; and that when the vehicle
finally stopped, all the trooper observed was two men getting
out and looking into the headlights of a vehicle parked behind
them in the street, with their hands in their pockets due to the
cold weather.
Given that "[s]eemingly innocent activities taken together
can give rise to reasonable suspicion," Commonwealth v. Watson,
430 Mass. 725, 729 (2000), and that "[t]he gravity of the crime
and the present danger of the circumstances may be considered in
the reasonable suspicion analysis," Commonwealth v. Depina, 456
Mass. 238, 247 (2010), the trooper clearly had reasonable
suspicion for the stop. See Commonwealth v. Meneus, 476 Mass.
231, 239 (2017) (violent nature of crime relevant when coupled
with "totality of the information known to police, including the
defendant's geographical and temporal proximity to the scene of
10
the crime and his suspicious behavior in the wake of the
shooting").
Police received a 911 call from a witness who identified
himself and who relayed firsthand knowledge of what he believed
to be a fatal shooting in a housing complex. See Commonwealth
v. Stoute, 422 Mass. 782, 790-791 (1996). In less than ten
minutes, the trooper was driving through the housing complex,
having already eliminated a suspect but on the lookout for
others.5 See Depina, 456 Mass. at 246. Mendez's rush to enter
the motor vehicle and its subsequent hasty exit comprised the
only activity that the trooper observed in the housing complex.6
See Commonwealth v. Quinn, 68 Mass. App. Ct. 476, 480 (2007).
5
Massie places much weight on the fact that the witness's
report of two people fleeing in a vehicle immediately after he
heard the gunshot was at odds with the trooper's observation
(and suspicion) of a vehicle pulling quickly away almost ten
minutes later. As it turned out, the defendants initially fled
on foot. That the witness did not get the description exactly
right about what happened in the immediate aftermath of the
shooting does not mean that the trooper was obliged to ignore
his own observations. See Commonwealth v. Mercado, 422 Mass.
367, 368, 369-371 (1996) (finding officer's suspicion reasonable
despite conflicting descriptions of shooting suspects).
6
Massie's reliance on Commonwealth v. Warren, 475 Mass. 530
(2016), is misplaced. There we held that it was unreasonable to
stop pedestrians twenty-five minutes after, and one mile away
from, a breaking and entering where they did not match the
description provided to police. Id. at 535-536. Here, the
white vehicle was temporally and geographically closer to the
crime and there was no description of the suspects. Compare
Commonwealth v. Depina, 456 Mass. 238, 246-247 (2010)
(reasonable to stop person matching vague description of shooter
when found approximately ten minutes after gunfire and three
blocks away).
11
He did not need reasonable suspicion to follow the motor
vehicle. See Commonwealth v. Williams, 422 Mass. 111, 116
(1996) ("No degree of suspicion, reasonable or otherwise, was
constitutionally required for the police to commence
surveillance" by following suspect vehicle).
As the trooper trailed the defendants for eight and one-
half minutes and approximately four miles, he learned additional
information that contributed to his suspicion. See Commonwealth
v. Wren, 391 Mass. 705, 707 (1984) ("[a] hunch will not
suffice"). The vehicle he was following had returned to a
normal speed but was traveling in a "serpentine route" through
the city, without an apparent destination. See Watson, 430
Mass. at 730. When he relayed the vehicle's license plate, he
learned that it was associated with a person whose criminal
record reflected assault and battery and firearms charges.7 See
Commonwealth v. Wright, 85 Mass. App. Ct. 380, 383 (2014).
Finally, police who had responded to the scene at the housing
7
The defendants argue that it was error to find that the
criminal record could influence the trooper's calculus because
all of the individual's violence-related charges had been
dismissed, including the firearms charge. There was no error;
police knowledge that a criminal history includes weapons-
related charges can add to reasonable suspicion. See
Commonwealth v. Gomes, 453 Mass. 506, 512-513 (2009). See also
Commonwealth v. Dasilva, 66 Mass. App. Ct. 556, 561 (2005)
("police knowledge of a person's arrest record or unspecified
'criminal record' [can] be considered in a reasonable suspicion
evaluation").
12
complex confirmed to the trooper that a person had been fatally
shot in the head. See Mercado, 422 Mass. at 368-370.
By the time Massie and Mendez, who had simultaneously
gotten out of their vehicle, stood face-to-face and staring at
the trooper with their hands in their pockets, the fear that the
two had participated in the killing and presented a possible
threat to his safety and that of the public was eminently
reasonable. See Scott, 440 Mass. at 648, citing Terry v. Ohio,
392 U.S. 1, 21 (1968) (court analyzes justification for stop at
time it occurs).8
b. Joinder of charges. The defendants challenge the
motion judge's decision to join for trial the charges related to
the robbery of Moitoso with those related to the robbery and
shooting of Platts, arguing that it amounted to an unfairly
prejudicial admission of propensity evidence. We review the
motion judge's decision for an abuse of discretion. See
Commonwealth v. Gray, 465 Mass. 330, 335, cert. denied, 134
S. Ct. 628 (2013).
8
Massie argues that his subsequent stop was unreasonable
because the officer who apprehended him had no reasonable
suspicion to do so as all he observed was Massie running with
his hand in his front right pocket. This argument has no merit;
he had already been stopped by the trooper. In any case, the
trooper's knowledge that Massie was a suspect in a shooting is
imputed to the other officer. See Commonwealth v. Quinn, 68
Mass. App. Ct. 476, 480-481 (2007). The subsequent frisk was
likewise justified. See Commonwealth v. Vasquez, 426 Mass. 99,
102-103 (1997).
13
Upon motion, joinder is appropriate where offenses are
related unless such joinder "is not in the best interests of
justice." Mass. R. Crim. P. 9 (a) (3), 378 Mass. 859 (1978).
Offenses are related for the purposes of joinder "if they are
based on the same criminal conduct or series of criminal
episodes connected together or constituting parts of a single
scheme or plan" (citation omitted). Commonwealth v. Hernandez,
473 Mass. 379, 393 (2015). Factors to take into consideration
include "factual similarities, closeness of time and space, and
'whether evidence of the other offenses would be admissible in
separate trials on each offense'" (citation omitted). Id.
Here there was considerable evidence demonstrating that the
two incidents were related. In each case, a jury could have
found that the defendants set up meetings with the victims under
the pretense of buying marijuana and instead robbed them using a
gun (even though the second robbery ended with the victim being
killed). In addition, the events took place within less than
one hour of each other and within a ten-minute drive of each
other. See Hernandez, 473 Mass. at 393 (separate robberies
occurring within time span of five hours and sharing common
method of coercion were related for purposes of joinder).
Further, evidence of each robbery would be admissible in
the trial of the other if the trials were separated. Although
evidence of one crime is inadmissible to show a propensity to
14
commit other such crimes, prior bad act evidence may be
admissible if relevant for another purpose such as motive, state
of mind, or a common scheme or pattern. Commonwealth v. Walker,
442 Mass. 185, 202 (2004). Evidence of the robbery of the
victim is certainly reflective of a common scheme or pattern in
a trial of the robbery of Moitoso, and vice versa.
Nor have the defendants shown that they were unfairly
prejudiced by the joinder. See Commonwealth v. Sullivan, 436
Mass. 799, 805 (2002). The judge asked the venire during voir
dire to comply with an instruction that evidence of each robbery
be considered independently, and that the evidence of one not be
taken as proof of propensity to commit the other. During his
instructions to the jury prior to deliberations, the judge
explained that evidence of the two incidents was not to be used
to prove that the defendants had a propensity to commit the
crimes of armed robbery or murder and that they were to consider
each episode separately. "The jury are presumed to follow the
judge's instructions." Commonwealth v. Andrade, 468 Mass. 543,
549 (2014).
The motion judge did not abuse her discretion in joining
the indictments for trial.
c. Closing argument. The defendants point to two aspects
of the prosecutor's closing argument as error.
15
i. Comments on Mendez's testimony. Both defendants argue
that the prosecutor made improper comments in his closing
regarding Mendez's testimony.9 During direct examination, Mendez
admitted to assaulting and robbing Moitoso. He testified that
the plan then was to meet the victim at the housing development
and purchase approximately twelve pounds of marijuana from him.
Mendez further testified that while he was in the victim's
vehicle the two men had a disagreement, the victim pulled out a
gun, and, in a struggle for the gun, Mendez shot the victim in
self-defense. He went on to say that after the shooting, he got
out of the vehicle with the gun, then returned for his hat
(which had fallen off) but instead grabbed the puppy. He then
met up with Massie, who had been waiting with the over $4,000 in
cash they had saved to buy the marijuana.
On cross-examination, Mendez testified that his initial
account to police after his arrest was not consistent with his
trial testimony because he had lied to the investigators on the
night of the victim's death. Among other things, he told police
that because of his drug use, he was unable to recall the events
of the evening, and specifically did not remember going to a
housing complex, carrying a gun, or being involved in a
shooting.
9
Massie did not testify, but his counsel endorsed Mendez's
testimony in closing argument.
16
In his closing argument, the prosecutor suggested that
Mendez conformed his testimony to the Commonwealth's evidence:
"[W]hen you talk about the night when he got caught
with the gun on him, there's a puppy, and he's brought down
to the station, oh, I lied about everything. Of course he
lied about everything because he didn't know what we knew,
the police. And of course, then as the evidence is
developed, he now fits it all in a nice little package for
you. . . . Evidence is what is said, not then what you
want to try to shape it at the end." (Emphases added.)
The defendants claim that the prosecutor's statements
improperly commented on Mendez's right to confront witnesses by
being present in the court room during the trial. Because
neither defendant objected to the closing argument, we review to
determine if there was error or misconduct, and if so, whether
it created a substantial likelihood of a miscarriage of justice.
Commonwealth v. Taylor, 455 Mass. 372, 377 (2009).
In arguing error, the defendants point to Commonwealth v.
Person, 400 Mass. 136 (1987), and Commonwealth v. Alphonse, 87
Mass. App. Ct. 336 (2015), where convictions were overturned
because, in each case, the prosecutor improperly argued that the
defendant tailored his testimony to match the evidence
presented. These cases are distinguishable.
"[A] prosecutor may, if there is a basis in the evidence
introduced at trial, attack the credibility of a defendant on
the ground that his testimony has been shaped or changed in
response to listening to the testimony of other witnesses."
17
Commonwealth v. Gaudette, 441 Mass. 762, 767 (2004). See
Commonwealth v. Sherick, 401 Mass. 302, 305 (1987). Here, where
the defendant made pretrial statements to police that were
different from his trial testimony, the prosecutor had a basis
in the evidence for pointing out that his trial testimony did
not match his prior statements to police, and instead conformed
to the Commonwealth's evidence. By contrast, in Person, 400
Mass. at 137, 138, 142, the defendant made no pretrial
statements; thus, while the prosecutor intimated that he had
fabricated his testimony, there was no evidence presented at
trial to support this argument. Accord Alphonse, 87 Mass. App.
Ct. at 336, 339 (no evidence to support prosecutor's assertion
that defendant had tailored his version of events to testimony
of other witness). Given Mendez's pretrial statements in this
case, the prosecutor fairly commented on "the quality of the
evidentiary picture the defendant was trying to paint."
Commonwealth v. Moore, 408 Mass. 117, 132 (1990). There was no
error.
ii. Arguing facts not in evidence. Massie asserts that
there was no adequate basis in evidence for the prosecutor to
argue in his closing that Massie had been in the back seat of
18
the victim's vehicle, or that Mendez had shot the victim because
he wanted the puppy.10
"[A] prosecutor may analyze the evidence and suggest
reasonable inferences the jury should draw from that evidence."
Commonwealth v. Semedo, 456 Mass. 1, 13 (2010). Here, there was
evidence from which the jury could infer that Massie had been
seated in the back seat of the victim's vehicle just before the
shooting, including the fact that Massie set the meeting up via
several telephone calls to the victim, and the witness
testified that he saw both men walk toward the victim's vehicle
just before the gun was fired. To be sure, there was evidence
tending to prove that Massie was not in the vehicle at the exact
time of the shooting (e.g., the fact that there was no blood on
his clothing, and only Mendez was seen exiting the vehicle after
the shot had been fired). However, contrary to Massie's claim,
this evidence supports, rather than negates, the prosecutor's
version of events, i.e., that Massie left the vehicle with the
cash prior to the shooting.
There was also evidence from which the jury could infer
that Mendez shot the victim because of the puppy. There was
evidence that Massie had left the vehicle with the cash the
10
The prosecutor stated: "Massie now has got the money,
he's out of the car [running]. [Mendez] . . . now wants the
dog. And a tussle, struggle, whatever, you're not getting the
dog. Bang, he's shot in the head. What does he do, and why is
that, as you know why, the purpose was what he wanted."
19
defendants had planned to steal, and it is a fair inference that
there would have been little, if anything, left to argue about.
The fact that Mendez shot the victim and then took the puppy
provided further evidence from which the jury could infer that
Mendez shot the victim because he wanted the puppy.11 There was
no error.
d. Insufficient evidence. Massie argues that the evidence
in support of his convictions of the armed robbery and felony-
murder of the victim was impermissibly thin. He claims that the
$4,120 in cash he was carrying at the time of his arrest could
not have come from the victim because it was not folded and
sectioned as described by a witness who testified to seeing the
victim with the cash earlier in the day. This, he asserts, plus
the fact that other items in the vehicle were not taken ($124 in
cash found in the victim's pocket and several small bags of
marijuana), proves the defendants did not rob, or intend to
murder, the victim. To succeed in a claim for insufficient
evidence, Massie must show that, in viewing the evidence in the
light most favorable to the Commonwealth, no rational trier of
fact could have found the essential elements of the crimes
11
The prosecutor offered a hypothetical scenario complete
with a hypothetical statement made by the victim before he was
shot. The trial judge appropriately reminded the jury that
closing arguments are not evidence, and instructed them to
ignore the suggestion that the victim had told Mendez, "You're
not getting the dog."
20
beyond a reasonable doubt. See Commonwealth v. Latimore, 378
Mass. 671, 677-678 (1979). This he is unable to do.
Evidence of the armed robbery of the victim viewed in the
light most favorable to the Commonwealth included the
following.12 Massie and Mendez earlier robbed Moitoso with a
gun. Thereafter, Massie arranged to meet the victim at the
housing complex. He knew that the victim had a large sum of
cash with him through conversations the two had earlier in the
day. Massie was seen walking toward the victim's vehicle and
was carrying a gun.
That there was an inconsistency between a witness's
observation and the actual organization of the cash when it was
recovered from Massie13 does not prove that the victim was not
robbed. "If the evidence lends itself to several conflicting
interpretations, it is the province of the jury to resolve the
discrepancy and determine where the truth lies" (quotation and
citation omitted). Platt, 440 Mass. at 401. Here there was
more than enough circumstantial evidence for the jury to
12
To make a case for felony-murder, the Commonwealth must
only establish that Massie participated as a joint venturer in
an armed robbery of the victim, and that the victim was killed
in furtherance of that robbery. See, e.g., Commonwealth v.
Kilburn, 426 Mass. 31, 34-37 (1997).
13
A witness testified that she had seen victim with his
money wrapped in blue and manila rubber bands earlier in the
day. The cash recovered from Massie was folded and wrapped in a
single red rubber band.
21
conclude that both defendants committed armed robbery against
the victim. They could have concluded that the victim
reorganized the cash prior to meeting with the defendants or
that the witness who saw the cash was mistaken. The jury also
could have concluded that departing quickly with the large
amount of cash was more important than grabbing the small bags
of marijuana and checking the victim's pockets for additional
money.
"Whether an inference is warranted or is impermissibly
remote must be determined, not by hard and fast rules of law,
but by experience and common sense" (citation omitted).
Commonwealth v. Giang, 402 Mass. 604, 609 (1988). Thus,
although the jury were free to adopt the defendants' version of
events, they were also free to reach a different rational
result. Platt, 440 Mass. at 401.
e. Moffett claims. Each defendant raises separate
arguments pursuant to Moffett, 383 Mass. at 208. First, Mendez
complains that his due process rights were violated when a
witness to the Moitoso robbery was allowed to testify because he
was not credible. The credibility of witnesses is for the jury
to decide. Commonwealth v. Watkins, 473 Mass. 222, 229 (2015).
The defendants had the opportunity to explore the issue of the
witness's credibility during cross-examination, and argue it
during closing arguments. There was no error.
22
Mendez next argues that his pretrial counsel was
ineffective where, at a motion to suppress hearing, the attorney
told the judge that he was unprepared to comment on the
Commonwealth's motion for joinder. As the court gave counsel
the opportunity to substantively oppose the motion at a later
date both orally and in writing, the argument is without merit.
Mendez also contends that he was deprived of the right to
an impartial jury where the Commonwealth improperly staged a
vehicle for the jury to observe during a view of the crime
scene. Upon objection, the judge struck that portion of the
view, and told the jury to disregard it; Mendez does not argue
that the jury were unable to do so. See Andrade, 468 Mass. at
549.
Finally, Mendez claims that it was error for the trial
judge to refuse to remove a juror who asked a question during
the view that he contends demonstrated a "pro-government
mindset."14 The judge denied the request, concluding that the
juror's question did not "reasonably suggest[] prejudice." The
judge's decision is entitled to deference where he had "the
advantage of face to face evaluation." See Commonwealth v.
Peppicelli, 70 Mass. App. Ct. 87, 94 (2007) (decision whether to
14
After counsel pointed out security cameras at the housing
complex, a juror asked counsel if they had been working on the
day in question.
23
dismiss juror reviewed for abuse of discretion or other error of
law). There was no abuse of discretion.
Massie's three Moffett claims concern the jury
instructions. He first argues that the immunized witness
instruction regarding Moitoso was reversible error, as it
improperly bolstered his credibility. The instruction
accurately described how Moitoso obtained immunity, and it was
preceded by an instruction that the jury may consider any
promises, rewards, or inducements made when assessing witness
credibility. See Commonwealth v. Dyous, 436 Mass. 719, 727
(2002) ("[W]e do not require that a judge give cautionary
instructions specifically mentioning a particular immunized
witness. . . . Rather we consider whether the charge, as a
whole, adequately covers the issue" [quotation and citations
omitted).
Second, Massie contends that the judge failed to instruct
the jury that the Commonwealth had the burden of proving its
case against him on a theory of felony-murder beyond a
reasonable doubt. In fact, the judge properly instructed the
jury, first describing the Commonwealth's burden of proof and
later describing what the Commonwealth had to prove.
Finally, Massie argues that, regarding the lesser included
offense of felony-murder in the second degree, the judge should
have instructed the jury that if they found the elements were
24
satisfied, they were required to find him guilty of the lesser
included offense. This is an inaccurate statement of the law,
as jurors have a duty to return a guilty verdict of the highest
crime proved beyond a reasonable doubt, here felony-murder in
the first degree. Commonwealth v. Kirwan, 448 Mass. 304, 319
(2007). There was no error.
f. Review pursuant to G. L. c. 278, § 33E. We have
reviewed the entire record and find no reason to exercise our
extraordinary power to reduce the verdict for either defendant
or grant a new trial.
Judgments affirmed.