Commonwealth v. Garcia , 470 Mass. 24 ( 2014 )

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SJC-11127
COMMONWEALTH vs. JOONEL GARCIA.
Essex. December 6, 2013. - October 29, 2014.
Present: Spina, Cordy, Botsford, Duffly, & Lenk, JJ.
Homicide. Home Invasion. Burglary. Armed Assault with Intent
to Rob. Felony-Murder Rule. Joint Enterprise. Evidence,
Joint venturer, Impeachment of credibility, Cross-
examination, Redirect examination, Accident.
Constitutional Law, Assistance of counsel. Practice,
Criminal, Required finding, Instructions to jury,
Assistance of counsel, Capital case. Witness, Impeachment,
Cross-examination, Redirect examination.
Indictments found and returned in the Superior Court
Department on March 1, 2006.
The cases were tried before David A. Lowy, J.
Jeffrey L. Baler for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the
Commonwealth.
DUFFLY, J. The defendant was indicted on charges of murder
in the first degree and five related offenses in connection with
the death of Rafael Castro on August 26, 2004.1 A Superior Court
1
The other indictments charged home invasion, G. L. c. 265,
2
jury found the defendant guilty of murder in the first degree on
theories of extreme atrocity or cruelty and felony-murder, based
on the underlying felonies of both home invasion and armed or
assaultive burglary. The jury also found the defendant guilty
of the other charges. The jury did not specify whether they
found the defendant guilty of any of the offenses as a principal
or as a joint venturer.
On appeal, the defendant maintains that the evidence was
insufficient to show that he shared the requisite intent to
commit the crimes charged. The defendant contends also that his
right to a fair trial was denied when he was not permitted to
impeach a Commonwealth witness by confronting her with a child
she observed outside the court room, whom she testified she
believed to be her deceased child, although the witness was
permitted on redirect examination to testify to the reasons she
had formed that belief. In addition, the defendant asserts that
a new trial is required because the judge erroneously declined
to give two requested jury instructions, and because his counsel
was ineffective for failing to object when the judge instructed
that accident was not a defense to the killing. The defendant
§ 18C, armed or assaultive burglary, G. L. c. 266, § 14, armed
assault with intent to rob, G. L. c. 265, § 18 (b), and two
counts of kidnapping, G. L. c. 265, § 26, one with respect to
Rafael Castro and one with respect to Norma Cedeno.
3
also requests that we exercise our authority to provide relief
pursuant to G. L. c. 278, § 33E. We affirm the convictions, and
discern no reason to grant a new trial or to reduce the verdict
of murder in the first degree to a lesser degree of guilt.
Background. We summarize the facts the jury could have
found, reserving certain facts for later discussion.
1. The shooting on August 26, 2004. Castro, whose street
name was "Calvo," was a drug dealer. In August, 2004, Castro
lived with Ramona Gonzalez in a sixth-floor apartment in an
apartment building in Lawrence. At times, Gonzalez also was
involved in drug dealing, as was her daughter, Norma Cedeno, who
lived primarily in the Dominican Republic. On August 26, 2004,
Gonzalez was in New York. Castro drove to Logan airport in
Boston to pick up Cedeno, who was to arrive that evening from
the Dominican Republic. After picking up Cedeno, Castro drove
her back to the apartment building, where they arrived at
approximately 11:15 P.M. Castro used his key to unlock the
front door to the apartment. Cedeno entered the darkened
apartment first, putting down some takeout food they had
purchased en route, and heading directly to the bathroom.
Although the apartment lights were off, there was some
illumination from exterior street lighting. As Cedeno took a
step into the bathroom, a man grabbed her and threw her to the
4
floor, holding her down while putting a gun to the back of her
neck and ordering her to look down. Cedeno cried out, "Oh my
God."
Earlier that day, the defendant and his girl friend,
Jessica Encarnacion, had been in their apartment when a man
known as "Gringo"2 arrived with two other men, Cesar Santana and
Alfredo Catalino. Another man, "Propeto," had arrived at the
defendant's apartment separately several hours earlier in the
day, and was there when Gringo and the other two men arrived.3
The four men often socialized together. Gringo, who was
acquainted with Castro, told the defendant that there was "a job
to do," and that they were going to "take something from Calvo
. . . some drugs that he had" that had been brought from Texas.
If the defendant agreed to help, they would be able to live as
"retirees." Around 2 P.M., Gringo drove the defendant to
Castro's apartment building and pointed it out to him. Later
that night, Gringo drove the defendant, Santana, and Catalino to
the apartment building.4 Gringo said that he had learned that
2
The defendant rented the apartment from "Gringo," who was
also known by several other names, including Ramon Ortiz, Ramon
Ortiz Peralta, Josue (or Joshua or Joseph) Martinez Vargas, and
Santo Delarosa.
3
Although the spelling "Propito" also appears in the
record, we refer to "Propeto" for convenience.
4
Propeto did not go with the others to Castro's apartment,
5
Castro was not there, and they would wait for Castro to return.
The four men, two of whom had guns, entered the building
using a pass card Gringo had and then entered Castro's apartment
using a key that Gringo produced. They waited in the apartment
for approximately thirty minutes before they heard a door
opening. At that point, Gringo told the defendant, Santana, and
Catalino to go into the bathroom and that he, Gringo, would
remain in the living room. Castro entered the apartment after
Cedeno, and started to run toward the living room when another
man "jumped" out to meet him. Castro lunged at the man, and the
man shot Castro in the forehead, seriously injuring him. The
bullet, which did not penetrate Castro's face, traveled
diagonally downward from the top of his forehead, where the
wound was deepest, over his right eye and cheek, lacerating the
skin. He was alive, but bleeding profusely. Some of the men,
including the defendant, took Castro into the smaller of the
apartment's two bedrooms. The men, whose voices she did not
recognize, told Cedeno that they would kill her if she looked up
because she "was going to know who they were," and put a pillow
case over her head, which remained covered until the men left
the apartment. Cedeno was taken to the larger bedroom where one
but was watching television with the defendant's girl friend,
Jessica Encarnacion, when the four men returned at approximately
1 A.M.
6
of the men remained with her.
Some of the men wrapped duct tape around Castro's ankles
and wrists,5 and one or more yelled at Castro, demanding drugs
and money. When Castro denied that he had any drugs, the men
demanded that he make a telephone call. Castro offered to get
them $20,000 if they cut him loose, but the men laughed at this
offer and refused. They continued to yell at Castro, and to hit
him. Cedeno could hear Castro whimpering and groaning in pain,
asking them to remove the tape, and repeatedly asking for water.
At one point, Cedeno was brought into the room with Castro; the
men took off her shirt and threatened to burn her with a hot
iron. Cedeno "could smell the burn of the iron," and she
implored Castro to tell the men what they wanted to know. In a
weak voice, Castro said, "Don't do it." One of the men put
Cedeno's shirt back on and took her back to the other bedroom.
Cedeno could hear the men walking around the apartment making
calls on their cellular telephones, becoming angrier, and saying
things like, "He doesn't want to talk," and, "He doesn't want to
make the phone call. What are we going to do next?" One of the
men said they should "[j]ust kill him."
A man tied Cedeno's ankles with duct tape, but she
5
According to expert testimony, the defendant's right thumb
print matched a latent print on a role of duct tape police found
in the apartment.
7
persuaded him not to tie her hands. The man told Cedeno that
three of them were leaving, but that one was going to stay
behind in case she tried to call the police. In an angry voice,
he told her, "We already know who you are, so if you call the
police, or . . . one of us get[s] caught, we [are] just going to
come back and get you." He said that he had a blade in his hand
and would cut her face, and that they "all [had] guns."
Approximately ninety minutes had passed since the incident
began. When the man left, Cedeno heard the door shut, but was
not sure whether any of the other men remained in the apartment.
She waited before calling out to Castro and asking if he was
there alone; in a faint voice, he asked her to open the door and
help him. Cedeno pulled herself into the kitchen and cut the
duct tape from her ankles with a knife.
The door to the bedroom in which Castro had been placed was
locked, and Cedeno used part of a bracelet to pick the lock.
Castro was lying on the floor and there was a lot of blood,
particularly on his face. She removed the duct tape binding
him, and held his hand for a short time to comfort him. She
tried calling for help on the apartment's telephone, but it had
been pulled from the wall, and the intruders had taken Castro's
cellular telephone. Cedeno found another telephone and
telephone cord in a drawer, and used it first to call her mother
8
and Ricardo Rosa, a former boy friend who lived in the same
building and was a friend of Castro's. She was afraid to
contact police at that point because she did not know if the men
were waiting to see if she would do so. After speaking with her
mother and Rosa, Cedeno telephoned 911; an ambulance, dispatched
at 12:53 A.M., arrived three to four minutes later. Upon
arriving, paramedics saw an "extremely large pool of blood" and
found Castro lying on the bedroom floor. They determined that
Castro was dead and notified Lawrence police at 1:03 A.M. The
cause of death was cardiac arrest resulting from loss of blood
from the gunshot wound to the forehead.
2. Flight from Massachusetts. Encarnacion and Propeto
were watching television when the defendant returned to his
apartment at approximately 1 A.M, accompanied by Gringo,
Santana, and Catalino. The defendant was not wearing the
clothes he had been wearing when he left, but, rather, was
wearing "girl's pants" and a different shirt. When he took off
that shirt, Encarnacion could see the front of the shirt that
the defendant had been wearing earlier, covered with blood
spatter. Encarnacion also observed blood spatter on the
defendant's shoes. When she asked about the blood and the
pants, the defendant said that nothing had happened and not to
worry about it. He told her: "Just, [s]hut up. Get me a bag.
9
I need to take these clothes off and put them in a bag. And
just keep packing. We have to leave here to [go] out of state."
Encarnacion gave the defendant a trash bag; he put the
clothes he had been wearing into the bag, and left the apartment
with it. Gringo, Santana, and Catalino went with him. They
returned five minutes later, without the bag.6 The defendant was
acting nervous. In response to Encarnacion's questions, he told
her that he had discarded the bag; when she asked why, he said,
"I'll talk to you when we get out of here." He then said that
they would have to go to the Dominican Republic because his visa
was expiring. Less than fifteen minutes later, they left in
Gringo's automobile, headed for John F. Kennedy Airport in New
York.
During the drive, the defendant took a gun from a bag; it
was gray with a laser light. Encarnacion had never seen the gun
before. The defendant said, "Damn, I bought a gun and now I
have to throw it away," then, later, "[s]uch a good gun, and I
have to throw it away." The men discussed how to get rid of the
gun. After approximately half an hour, they took an exit off of
the highway and stopped; the defendant and Gringo took the bag
that held the gun and disappeared into the woods. They were
6
Propeto left with the other men, but did not return with
them.
10
gone seven minutes while the others waited in the vehicle. When
the two men returned, the defendant said that they would go to
New York "as soon as possible" and take "the first plane to
[the] Dominican Republic." No one responded when Encarnacion
asked what had happened.
At the airport, Gringo gave the defendant $1,000 in cash,
which Encarnacion used to purchase two one-way tickets on a
flight leaving for the Dominican Republic at 7 A.M. During the
flight, the defendant told Encarnacion that something really bad
had happened, but that he was not going to talk until he had a
chance to calm down and get some rest. Once they had landed and
had reached the defendant's brother's house, the defendant told
Encarnacion that he had gone to claim some money that someone
owed him for drugs, and that he, Gringo, Santana, and Catalino
waited in the man's apartment until the man arrived. The
defendant said that he was with Gringo in the bathroom, and
Gringo had the gun because he planned to scare the man into
giving him the money that the man owed. When the man opened the
bathroom door and turned on the light, he was shocked to see
Gringo with a gun. The man was trying to take the gun from
Gringo when the gun went off accidentally and shot the man. The
defendant said that they had not expected the man's daughter,
who had walked into the apartment with the man, to be there.
11
The defendant and Catalino tied the man up using duct tape and
told the man that they would make a call for the money, but they
did not get anything and left.
Encarnacion eventually returned to Lawrence and spoke with
police several times concerning the events of August 26. The
defendant was arrested after he, too, returned to Lawrence.
While at the Suffolk County house of correction, the defendant
gave an audiorecorded statement to police, in which he admitted
to going to Castro's apartment with the other three men on
August 26, intending to rob Castro, but stated that Gringo had
been the one holding the gun, which the defendant said
discharged accidentally when Castro lunged at Gringo.
Discussion. 1. Sufficiency of the evidence. The
defendant claims that the evidence was insufficient to establish
that he shared the intent required to support his convictions of
murder, home invasion, armed or assaultive burglary, and armed
assault with intent to rob.7 In reviewing a claim of
insufficient evidence, we ask whether, viewing the evidence in
the light most favorable to the Commonwealth, "any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Commonwealth v. Perez, 460
7
The defendant conceded at trial that the evidence was
sufficient to support a finding of guilt as to both charges of
kidnapping.
12
Mass. 683, 702 (2011), quoting Commonwealth v. Latimore, 378
Mass. 671, 677 (1979). We take this view of the evidence
notwithstanding any evidence to the contrary presented by the
defendant. Commonwealth v. Latimore, supra at 676-677.
In reviewing the sufficiency of the evidence on a theory of
joint venture, we consider whether the evidence supports a
finding that "the defendant knowingly participated in the
commission of the crime charged, alone or with others, with the
intent required for that offense." Commonwealth v. Norris, 462
Mass. 131, 138-139 (2012), quoting Commonwealth v. Zanetti, 454
Mass. 449, 468 (2009). "The felony-murder rule 'imposes criminal
liability for homicide on all participants in a certain common
criminal enterprise if a death occurred in the course of that
enterprise.'" Commonwealth v. Hanright, 466 Mass. 303, 307,
(2013), quoting Commonwealth v. Matchett, 386 Mass. 492, 502
(1982). To be liable for felony-murder, a defendant need only
possess the intent necessary for the underlying felony.
Commonwealth v. Hanright, supra. Because the underlying felonies
here of home invasion, G. L. c. 265, § 18C, and armed burglary,
G. L. c. 266, § 14, as well as the separate offense of armed
assault with intent to rob, G. L. c. 265, § 18 (b), require that
the Commonwealth establish that the perpetrator was armed,
"knowledge of a weapon is an element of the Commonwealth's proof
13
when a defendant is prosecuted on a theory of joint venture."
Commonwealth v. Britt, 465 Mass. 87, 99 (2013). See Commonwealth
v. Gorman, 84 Mass. App. Ct. 482, 489 (2013).
The evidence presented would have allowed the jury to find
that the defendant intended to aid in robbing Castro and that he
knew that at least one of the intruders was armed. The jury
heard evidence that the defendant agreed to go with Gringo to
take a large quantity of drugs from Castro; that the defendant
went to Castro's apartment with Gringo to become familiar with it
and then returned at a time when they had information that Castro
would not be present; that at least two of the men were armed
when they entered the apartment; that upon hearing Castro
unlocking the door, some of the men secreted themselves in the
bathroom; that one of the men wanted to use a gun to scare Castro
into giving them money, and shot Castro soon after Castro entered
the apartment; and that one of the guns wielded belonged to the
defendant who was in possession of it shortly after the men left
the apartment. This evidence sufficed to show that the defendant
had the requisite intent to commit home invasion, armed burglary,
and armed assault with intent to rob.
The defendant's actions after the men left Castro's
apartment provided additional evidence of an intent to
participate in a joint venture to commit the crimes charged. The
14
four men returned together to the defendant's apartment, where
they discarded his bloodied clothing, and planned and executed a
further escape. See Commonwealth v. Akara, 465 Mass. 245, 255
(2013), and cases cited (defendant seen holding gun and standing
near coventurer immediately before shooting, and fleeing while
laughing with coventurers immediately after shooting);
Commonwealth v. Williams, 422 Mass. 111, 121 (1996) ("Joint
venture may be proved by circumstantial evidence, including
evidence of flight together"). Hence, viewing the evidence in
the light most favorable to the Commonwealth, the jury heard
sufficient evidence to conclude beyond a reasonable doubt that
the defendant was guilty of armed home invasion and armed
burglary and, consequently, of felony-murder, as well as of
assault with intent to rob. See Commonwealth v. Pytou Heang, 458
Mass. 827, 836 (2011).
There was also sufficient evidence from which the jury could
have concluded that the defendant possessed the requisite intent
to commit murder in the first degree on a theory of extreme
atrocity or cruelty. The mental intent necessary to support such
a conviction is malice. Commonwealth v. Szlachta, 463 Mass. 37,
47 (2012), quoting Commonwealth v. Cunneen, 389 Mass. 216, 227
(1983). "Malice is defined in these circumstances as an intent
to cause death, to cause grievous bodily harm, or to do an act
15
which, in the circumstances known to the defendant, a reasonable
person would have known created a plain and strong likelihood
that death would follow." Commonwealth v. Szlachta, supra at 45-
46, quoting Commonwealth v. Chhim, 447 Mass. 370, 377 (2006).
Here, the Commonwealth introduced evidence that, while
Castro was bleeding profusely following the shooting, the
defendant and the other intruders bound and repeatedly struck him
as he moaned in pain and asked for water. See Commonwealth v.
Semedo, 422 Mass. 716, 720 (1996), citing Commonwealth v.
Mahoney, 406 Mass. 843, 848 (1990) (sufficient evidence of malice
based on plain and strong likelihood of death, where reasonable
person would have known that victim could suffer death as beating
progressed); Commonwealth v. Plunkett, 422 Mass. 634, 637 (1996)
(evidence would have sufficed to show malice based on plain and
strong likelihood of death where defendant bound and gagged
victim, resulting in victim's death). Castro's voice became weak
during the time the intruders were in the apartment, while they
were musing aloud on whether they should kill him; the defendant
himself described Castro as barely alive by the time he and the
other men left. Furthermore, before departing, the intruders
locked the door to the bedroom where Castro was restrained at
both his hands and his feet, pulled the apartment telephone cord
from the wall, took Castro's cellular telephone, warned Cedeno
16
not to call for help, and left her in another room with her
ankles bound. The jury could have found that a reasonable person
would have known that all of these actions impeded Castro's
ability, while bleeding heavily, to obtain emergency assistance,
and that there was a plain and strong likelihood that death would
follow. See Commonwealth v. Auclair, 444 Mass. 348, 363-364
(2005); Commonwealth v. Maynard, 436 Mass. 558, 562-563 & n.4
(2002); Commonwealth v. Perry, 432 Mass. 214, 218, 221-224
(2000).
2. Impeachment of Commonwealth's witness. In addition to
challenging the sufficiency of the evidence, the defendant
contends that he was denied his right to a fair trial because he
was not permitted to impeach Encarnacion by confronting her with
a child whom she had observed outside the court room and believed
to be her deceased daughter. On direct examination, Encarnacion
testified that she became pregnant with the defendant's child
while they were in the Dominican Republic, after their arrival on
August 27, 2004. She returned to the United States in February
or March of 2005, and ended her relationship with the defendant
that June. Encarnacion gave birth to her daughter on August 22,
2005.8
8
Encarnacion subsequently testified that she agreed to
surrender the child to the defendant's mother in the Dominican
Republic because of Encarnacion's then drug problems and unstable
17
Toward the end of Encarnacion's direct examination, the
prosecutor questioned her about statements she made to police
soon after returning to Lawrence. Encarnacion testified that she
had lied at that time, in particular regarding her knowledge of
the gun and its disposal, and her trip to the airport in New York
with the defendant in August, 2004. She testified that she had
been afraid, that she believed she could go to jail because she
knew something about a murder, and that she had been depressed,
but that she had since been seeing a therapist and taking
medication. Encarnacion said that she was in court because she
wanted to be honest and tell the truth and she no longer wanted
to put herself in the "middle of anything."
On cross-examination, defense counsel elicited testimony
that Encarnacion had sworn to tell the truth when she appeared
before the grand jury, but that she had lied in testifying that,
when the defendant came back to their apartment with blood on his
clothes, he was crying and saying things such as, "I can't
believe Gringo made me do this." Encarnacion insisted that
although she had lied out of fear for her life, she was being
honest in her trial testimony. "At that point, I was trying to
living circumstances. Sometime roughly in December, 2006, after
Encarnacion had begun speaking to police and the defendant had
been charged in this case, the defendant's mother and brother
told Encarnacion that her daughter had died. Encarnacion neither
sought nor received confirmation of her daughter's death.
18
defend him, but now I'm not defending nobody. . . . I have three
kids. I have two living with me. One, his mother took away,
which I'm going to fight back. And I am not here to put him
down. Because if I really wanted to put him down, I would have
just came to the police and made up another story saying maybe he
shot the guy; don't you think?"
At that point, defense counsel asked, "You just told the
jury that [the defendant's] mom -– who's out in the hall,
right? -- has your daughter, [a]nd you're now going to fight to
get your daughter." Encarnacion responded:
"Because she told me my daughter was dead for three years.
She adopted my daughter, and made me believe my daughter was
dead for three years. And she brings her today, to this
court, to make me look nervous and make me look stupid and
maybe put myself in the middle for this: okay. I'm very
nervous right now. My daughter is alive. She made me
believe for three single years. I ended up in a psychology
center, cutting myself, going crazy, thinking my daughter is
dead. And all of a sudden, she's here today? That's not
fair. That's not fair."
See note 8, supra. Defense counsel also asked whether
Encarnacion had attempted suicide because the defendant's mother
had custody of her daughter, to which Encarnacion replied, "No.
Because she made me believe my daughter was dead."
After a brief recess, defense counsel questioned Encarnacion
regarding her perceptions of the child in the hallway whom she
believed to be her daughter. He elicited testimony that
Encarnacion's daughter would have been a little over three years
19
old, and then sought to present the child, whom defense counsel
described as fifteen months old, to the jury, in order to show
that the child could not rationally have been mistaken for a
three year old. The judge denied as collateral and unduly
prejudicial the request to present the child for Encarnacion to
identify and for the jury to see. He noted that the information
could be introduced through other means, such as testimony by
other witnesses.9
The defendant contends that the judge impeded his ability to
cross-examine Encarnacion by denying his request to present the
child in court and by allowing the Commonwealth to rehabilitate
Encarnacion on redirect examination with details regarding the
circumstances in which she saw the child. The Massachusetts and
Federal Constitutions guarantee a defendant's right to cross-
examine prosecution witnesses. See Commonwealth v. Meas, 467
Mass. 434, 449 (2014), quoting Commonwealth v. Allison, 434 Mass.
670, 681 (2001); Commonwealth v. Mercado, 456 Mass. 198, 202 &
n.9 (2010). "Nevertheless, a judge may limit the scope of cross-
examination as long as he or she does not completely bar inquiry
9
At side bar, counsel described Encarnacion as having gone
off "on this tirade that I think is irrational, and shows she's
psychotic." The judge inquired of both attorneys if they thought
the witness was "too distraught to testify" further that day, and
the prosecutor agreed that she was. Encarnacion's testimony
resumed the following day.
20
into a relevant subject." Commonwealth v. Williams, 456 Mass.
857, 873 (2010). A judge has broad discretion in circumscribing
the proper scope of cross-examination, Commonwealth v. Mercado,
supra at 203; Commonwealth v. Vardinski, 438 Mass. 444, 451
(2003), and may impose such limits "based on concerns about,
among other things, harassment, prejudice, confusion of the
issues, the witness's safety, or interrogation that is repetitive
or only marginally relevant." Commonwealth v. Johnson, 431 Mass.
535, 540 (2000), quoting Delaware v. Van Arsdall, 475 U.S. 673,
679 (1986). See Commonwealth v. Avalos, 454 Mass. 1, 7 (2009),
and cases cited. To determine whether a judge acted beyond this
discretion, "we weigh the materiality of the witness's direct
testimony and the degree of the restriction on cross-
examination." Commonwealth v. Mercado, supra, quoting
Commonwealth v. Vardinski, supra. The defendant bears the burden
of proving that the judge acted improperly. See Commonwealth v.
Avalos, supra, quoting Commonwealth v. Weichel, 403 Mass. 103,
105 (1988).
We conclude that the judge did not abuse his discretion in
prohibiting the defendant from presenting the child for
Encarnacion to identify and for the jury to see. Notwithstanding
the materiality of Encarnacion's testimony in corroborating the
defendant's participation in the killing, the judge did not "bar
21
all inquiry into the subject" of her mental state. See
Commonwealth v. Avalos, supra at 7, quoting Commonwealth v.
Allison, supra at 681. Defense counsel elicited testimony that
Encarnacion had struggled in the past with mental health issues,
that no one had told her that the child she saw was her daughter,
that her only reason for believing the child to be her daughter
was that she saw from afar the defendant's mother holding the
child, and that she made no attempt to verify the child's
identity at that time. Furthermore, although he would not allow
the child to be brought into the court room, "[t]he trial judge
provided counsel an opportunity" to present other evidence of the
child's age and physical appearance, which counsel ultimately
decided not to do. See Commonwealth v. Williams, 456 Mass. at
873. The judge had discretion to limit the manner in which
counsel could offer evidence of the child's apparent age. Cf.
Commonwealth v. Mercado, supra at 203-204 (judge could limit
defense counsel's use of "inflammatory" photographs on cross-
examination where counsel thoroughly cross-examined witness
regarding point in question). In particular, the judge noted his
concern that presenting the child in the court room would cause
Encarnacion unnecessary distress. Cf. Commonwealth v. Johnson,
431 Mass. at 540, quoting Alford v. United States, 282 U.S. 687,
694 (1931) (judge should "protect [a witness] from questions
22
which go beyond the bounds of proper cross-examination merely to
harass, annoy or humiliate").
The defendant contends also that Encarnacion's testimony on
redirect examination was overly broad and unduly prejudicial
because it suggested that the defendant and his mother had acted
intentionally to provoke Encarnacion's response to the child.
"The purpose of redirect examination is to explain or rebut
adverse testimony or inferences developed during cross-
examination." Commonwealth v. Borgos, 464 Mass. 23, 35 (2012),
quoting Commonwealth v. Hoffer, 375 Mass. 369, 375 (1978). As
with cross-examination, a trial judge has considerable discretion
over the scope of redirect examination. See Commonwealth v.
Rosario, 460 Mass. 181, 193 (2011); Commonwealth v. Ostrander,
441 Mass. 344, 356, cert. denied, 543 U.S. 867 (2004). A
defendant who asserts an abuse of this discretion on appeal
"assumes a heavy burden." Commonwealth v. Arriaga, 438 Mass.
556, 577 (2003), quoting Commonwealth v. Maltais, 387 Mass. 79,
92 (1982). See Commonwealth v. Ostrander, supra at 356-357,
quoting Commonwealth v. Roberts, 433 Mass. 45, 51 (2000) (judge
has "nearly unreversible discretion" with respect to redirect
examination).
The judge in this case carefully limited the scope of
redirect examination. The defendant's challenge to Encarnacion's
23
credibility, based on her belief that the child she saw in the
court house was her daughter, opened the door for the
Commonwealth to rehabilitate Encarnacion by allowing her to
explain the circumstances that led her to form this belief. See
Commonwealth v. Arriaga, 438 Mass. at 577; Commonwealth v.
Marrero, 427 Mass. 65, 69 (1998); Commonwealth v. Olszewski, 416
Mass. 707, 718 (1993), cert. denied, 513 U.S. 835 (1994). In
particular, the judge permitted Encarnacion to testify that the
defendant's mother had informed her of her daughter's death in
the course of berating and threatening her for cooperating with
police; that she never received confirmation of her daughter's
death, such as a death certificate or photographs from the
funeral; that she saw the defendant's mother holding a baby girl
in the court house hallway; and that the child resembled her
daughter. "Having opened the door to this information, . . . the
defendant's claim of prejudice is highly suspect." Commonwealth
v. Marrero, supra, quoting Commonwealth v. Otsuki, 411 Mass. 218,
236 (1991).
At the same time, the judge minimized the prejudicial impact
of the testimony by preventing the prosecutor from suggesting
that the defendant or his mother intentionally arranged
Encarnacion's encounters with the child in order to provoke her
24
10
reaction. He sua sponte cut-off Encarnacion's testimony when it
appeared that she would begin testifying about the motive of the
defendant's mother. Likewise, when Encarnacion testified that
she thought the defendant's mother was attempting to "intimidate"
her, the judge asked defense counsel if he would like to have
that comment stricken. Defense counsel declined, apparently
based on his strategic assessment that Encarnacion's testimony
sounded irrational and only harmed her credibility; at sidebar,
defense counsel suggested that the longer Encarnacion testified
about the child, the more irrational she appeared. Finally, the
judge repeatedly offered to issue a limiting instruction, which
defense counsel declined, that Encarnacion's testimony on
redirect examination was to be used only to evaluate her
credibility. See Commonwealth v. Stone, 70 Mass. App. Ct. 800,
807 (2007) ("The trial judge's offer to give a jury instruction
to emphasize the limited relevance of [the witness's] testimony
shows the extent to which he analyzed the prejudicial effect
versus the probative value before deciding in favor of
admissibility").
10
The judge expressed concern that the defendant might be
unduly prejudiced if the jury were to conclude that the defendant
or his family had devised the plan to bring the child into the
court house and display her to Encarnacion in order to unhinge
her, and, on that basis, further conclude that the defendant had
done so because he was guilty of the charged offenses and needed
to impeach the person to whom he had confessed.
25
The defendant argues that presenting alternative evidence of
the child's appearance or requesting a limiting instruction would
have exacerbated the prejudice to him by drawing greater
attention to his possible role in a scheme to manipulate
Encarnacion. Defense counsel was free to make such a tactical
assessment, but we presume that the jury would have heeded any
limiting instruction. See Commonwealth v. Roberts, 433 Mass. 45,
52-53 (2000). There was no abuse of discretion in the manner in
which the judge limited the scope of Encarnacion's cross-
examination and her redirect examination.
3. Failure to instruct on second-degree felony-murder based
on uncharged offense. The defendant argues that it was error to
decline to give an instruction on felony-murder in the second
degree based on the uncharged offense of distribution of cocaine.
Whereas felony-murder in the first degree is predicated on a
felony that is punishable by a sentence of life in prison,
felony-murder in the second degree is predicated on a felony with
a maximum sentence of less than life in prison. See Commonwealth
v. Burton, 450 Mass. 55, 57 (2007). To support a conviction of
felony-murder in the second degree, there must be a homicide that
occurs during the commission or attempted commission of a felony;
the homicide must be a "natural and probable consequence" of the
predicate felony, see Commonwealth v. Stokes, 460 Mass. 311, 315
26
(2011); and the felony must be either "inherently dangerous" or
"committed so that the circumstances demonstrate 'the defendant's
conscious disregard of the risk to human life.'" Commonwealth v.
Burton, supra, quoting Commonwealth v. Matchett, 386 Mass. 492,
508 (1982). A defendant is entitled to an instruction on felony-
murder in the second degree only if there is a rational basis in
the evidence to support such a conviction. See Commonwealth v.
Bell, 460 Mass. 294, 306-307 (2011). "[T]he felony on which a
charge of felony-murder is premised may be uncharged, so long as
the evidence supports it." Commonwealth v. Stokes, supra.
The defendant requested an instruction on felony-murder in
the second degree predicated on the uncharged offense of "drug
distribution." The judge denied the request on the ground that
the evidence did not provide a rational basis for conviction of
that offense. The predicate felony of "drug distribution,"
whether understood as distribution of a controlled substance or
as possession with intent to distribute a controlled substance,
requires proof of possession. See G. L. c. 94C, §§ 32A, 32B,
32C, 32D, 32E. The only evidence supporting the defendant's
theory of "drug distribution" was that the defendant, the joint
venturers, and the victims all were drug dealers, and the
defendant's statement that he went to the apartment to collect
"like a debt" from Castro in the form of drugs that he believed
Castro had "brought . . . from Texas." There was no evidence
27
that controlled substances were present in the apartment, or that
any of the intruders came into possession of the drugs the
defendant alleges they were there to collect. In the absence of
evidence supporting possession or constructive possession of a
controlled substance, the jury could not permissibly have found
that the defendant committed the felony of distribution of a
controlled substance or possession with intent to distribute a
controlled substance. Therefore, there was no error in the
denial of the defendant's request for an instruction on murder in
the second degree predicated on such offenses.11
4. Instruction on intervening cause. The defendant
maintains also that the judge erred in declining to give a
requested instruction on intervening cause, arguing that the
evidence warranted a finding that Castro's death was caused by
Cedeno's intentional delay in contacting emergency personnel.12
11
In his reply brief, the defendant suggests that the
evidence sufficed to show attempted distribution of a controlled
substance. We need not address the merits of this argument
because the defendant was not charged with this offense and did
not request an instruction on the basis of this offense. See
Commonwealth v. Stokes, 460 Mass. 311, 315 (2011). Moreover,
even had there been error, there would have been no prejudice to
the defendant in declining to give such an instruction where, as
here, the defendant "was also convicted under the alternate
theor[y] of . . . extreme atrocity or cruelty." See Commonwealth
v. Brum, 438 Mass. 103, 119 n.23 (2002).
12
This claim hinges in part on the defendant's argument
"that Cedeno had a motive to allow Castro to bleed to death by
delaying the 911 call in order to advance in the drug
organization." The evidence does not support such an inference.
28
This argument is unavailing. If "death follows as a consequence
of [an individual's] felonious and wicked act, it does not alter
its nature or diminish its criminality to prove that other causes
cooperated in producing the fatal result." Commonwealth v.
McLeod, 394 Mass. 727, 744-745, cert. denied sub nom. Aiello v.
Massachusetts, 474 U.S. 919 (1985), quoting Commonwealth v.
Hackett, 2 Allen 136, 142 (1861). See Commonwealth v. Davis, 403
Mass. 575, 582 (1988). "The general rule is that the intervening
conduct of a third party will relieve a defendant of culpability
only if such an intervening response was not reasonably
foreseeable." Commonwealth v. Rosado, 434 Mass. 197, 203, cert.
denied, 534 U.S. 963 (2001), quoting Commonwealth v. Niemic, 427
Mass. 718, 727 (1998). Although "the judge was required to
instruct the jury on any issues which could be inferred from the
evidence," Commonwealth v. McLeod, supra at 745, he was not
required to give a requested instruction unless competent
evidence proffered by the defendant, viewed in a light favorable
to him, reasonably supported such an inference.
The defendant points to evidence that, viewed favorably to
him, he contends would support a reasonable inference that Cedeno
delayed at least several minutes before calling 911 and
requesting emergency medical assistance: she first made
telephone calls attempting to reach her mother and her former boy
29
friend who lived in the same apartment building as Castro.13 It
was reasonably foreseeable, however, that there would be a delay
before emergency medical assistance would reach Castro. At most,
the effect of Cedeno's delay "was merely to prevent any recovery
that might otherwise have taken place." Commonwealth v. Costley,
118 Mass. 1, 27 (1875). It was not an intervening cause that
then became the proximate cause of Castro's death. Because the
evidence does not support the defendant's theory of an
intervening cause, the judge did not err in refusing to grant the
requested instruction. See Commonwealth v. McLeod, 394 Mass. at
744-745.
5. Instruction that there was no evidence of accident. The
defendant contends that the judge provided an erroneous
instruction in connection with the charge of murder in the first
degree based on the theory of extreme atrocity or cruelty, and
that his counsel was ineffective for failing to object to the
instruction. Because the defendant did not object, we review to
determine whether any error created a substantial likelihood of a
miscarriage of justice. See Commonwealth v. Jewett, 442 Mass.
356, 370 (2004). Likewise, when "the defendant has been
13
Viewing the evidence favorably to the defendant, Castro
was still alive when the men left the apartment. In his
statement to police, the defendant described Castro's condition
as "kind of alive," and said, "Calvo was still sort of alive"
when they left.
30
convicted of murder in the first degree, 'we consider his claim
of ineffectiveness of counsel to determine whether there exists a
substantial likelihood of a miscarriage of justice . . . which is
more favorable to a defendant than the constitutional standard
for determining ineffectiveness of counsel.'" Commonwealth v.
Franklin, 465 Mass. 895, 909 (2013), quoting Commonwealth v.
Walker, 460 Mass. 590, 598 (2011). We conclude that there was no
error.
As to the first element of murder in the first degree on a
theory of extreme atrocity or cruelty, the judge instructed:
"[T]he Commonwealth must prove to you beyond a reasonable
doubt . . . that the defendant committed an unlawful
killing. For a killing to be murder, it must be unlawful.
An unlawful killing is a killing done without excuse. Not
all killings are unlawful. A killing may be excused, for
example, in cases of self-defense, defense of another, or in
some cases, accident. The evidence in this case does not
raise the issue of whether the killing was excused as a
result of self-defense, defense of another, or accident."
The defendant argues that the last sentence of this instruction
prevented the jury from considering accident to mitigate malice.
However, a "judge's comment to the jury regarding the absence of
accident [is] not an invasion of their fact-finding function"
unless the issue of accident is "fairly raised" by the evidence.
See Commonwealth v. Podkowka, 445 Mass. 692, 698-699 (2006).
In support of his argument that the killing occurred
accidentally, the defendant focuses exclusively on evidence
related to the shooting itself. As the judge instructed,
31
however, "As to the charge of murder, the Commonwealth does not
allege that the shooting of Raphael Castro, in and of itself, was
the act that constitutes the killing. Rather, the Commonwealth
alleges that the shooting, along with the acts allegedly taken
thereafter, caused Mr. Castro's death." We presume that the jury
followed this instruction, see, e.g., Commonwealth v. Morales,
461 Mass. 765, 784 (2012), and therefore that they relied on the
evidence introduced regarding the intruders' conduct after the
shooting. This evidence included that the intruders bound Castro
with duct tape, repeatedly struck him, and left him in a locked
room without a telephone, while he bled profusely. Evidence of
such conduct suffices to prove malice, even if the defendant did
not intend Castro's death, see Commonwealth v. Plunkett, 422
Mass. 634, 637 (1996), and there is no suggestion that any of
this conduct was accidental. Hence, because the jury were not
called upon to decide whether the shooting itself was accidental,
the issue of accident was not fairly raised and the judge's
instructions were not erroneous.
6. Relief pursuant to G. L. c. 278, § 33E. Having
carefully reviewed the entire record pursuant to our duty under
G. L. c. 278, § 33E, we discern no reason to reduce the verdict
of murder in the first degree or to order a new trial.
Judgments affirmed.