Commonwealth v. Fisher ( 2023 )

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revision and are superseded by the advance sheets and bound
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SJC-13340
COMMONWEALTH vs. DERRELL FISHER.
Middlesex. May 5, 2023. - September 20, 2023.
Present: Budd, C.J., Gaziano, Cypher, Kafker, & Georges, JJ.
Homicide. Felony-Murder Rule. Constitutional Law, Admissions
and confessions, Voluntariness of statement. Evidence,
Admissions and confessions, Voluntariness of statement,
Opinion, Identification. Jury and Jurors. Practice,
Criminal, Capital case, Motion to suppress, Admissions and
confessions, Voluntariness of statement, Jury and jurors,
Question by jury, Instructions to jury, Argument by
prosecutor.
Indictments found and returned in the Superior Court
Department on September 15, 2015.
Pretrial motions to suppress evidence were heard by Kenneth
J. Fishman, J., and the cases were tried before Bruce R. Henry,
J.
Chauncey Wood (Caroline Alpert & Danya Fullerton also
present) for the defendant.
Christa Elliott, Assistant District Attorney, for the
Commonwealth.
Caitlin Glass & Joshua M. Daniels, for Boston University
Center for Antiracist Research & others, amici curiae, submitted
a brief.
2
Anton Robinson, Daniel B. Goldman, & Steven Rivera, of New
York, & Radha Natarajan, for New England Innocence Project &
another, amici curiae, submitted a brief.
CYPHER, J. From the night of July 1, 2015, to the early
hours of the morning on July 2, Derrell Fisher, the defendant,
and Epshod Jeune, his codefendant,1 engaged in a scheme to rob
women they found advertising sexual services on a website
(Backpage). After one successful robbery of a victim at a
Woburn hotel, the defendant and Jeune traveled to a second hotel
in Burlington (Burlington hotel), where a second victim was shot
after she began to scream for help. The defendant was convicted
of murder in the first degree based on a theory of felony-
murder, among other charges.
On appeal, the defendant argues that his motion to suppress
was denied erroneously; the judge erred in dismissing two jurors
from the venire; a police officer improperly identified the
defendant in a video recording at trial, which was exacerbated
by the prosecutor's statements and the judge's instructions; the
evidence was insufficient for his murder conviction; the judge's
instructions to the jury in response to a question regarding
third prong malice was incorrect; and the prosecutor's closing
argument misstated the evidence. For these claimed errors, the
defendant requests that the court reduce his verdict pursuant to
1 The two were tried together but have separate appeals.
3
G. L. c. 278, § 33E, or order a retrial. We hold that the
officer's identification testimony was admitted improperly, but
that its admission did not prejudice the defendant. Concluding
that there was no other error, we affirm the defendant's
convictions.2
1. Background. a. Facts. i. The crimes. Because the
defendant disputes the sufficiency of the evidence for his
conviction of murder in the first degree, we recite the facts in
detail, in the light most favorable to the Commonwealth.
Commonwealth v. Oberle, 476 Mass. 539, 540 (2017).
A. Sanisha Johnson. On the evening of July 1, 2015,
Sanisha Johnson was in her Burlington hotel room. That night,
Johnson had posted a listing on Backpage for sexual services,
which included her cell phone number.
Sometime after midnight on July 2, a couple staying in room
116 heard knocking at their door, to which they did not respond.
Soon after, from a nearby room they heard a woman call out,
"Help me. Help me," and a loud bang, followed by silence.
Other guests also heard cries for help and a loud bang at around
2 We acknowledge the amicus briefs filed by the Boston
University Center for Antiracist Research, Massachusetts
Association of Criminal Defense Lawyers, Felony Murder
Elimination Project, National Council for Incarcerated and
Formerly Incarcerated Women and Girls, Kat Albrecht, and The
Sentencing Project; and by the New England Innocence Project and
The Innocence Project.
4
half past midnight, two of whom identified the sound as a
gunshot.
A hotel employee, Cherin Townsend, heard a loud bang from
inside the building on July 2, 2015, between 12:20 and 12:30
A.M., and received a telephone call informing her that somebody
heard gunshots. After several telephone calls from guests,
Townsend walked to the front desk and called police.
Sergeant Daniel Hanafin of the Burlington police
department, the officer in charge on July 2, 2015, at 12:30
A.M., responded to a telephone call from the hotel, along with
several other officers. On entering the hotel, officers spoke
to individuals gathered in the lobby and to Townsend. After
looking through the hallway at issue, officers began calling
each occupied room in the corridor and asking occupants to come
out into the hallway. After knocking on the doors of rooms
whose residents the officers were unable to connect with by
telephone, the only room without a response was Johnson's room.
Hanafin and Sergeant Tim McDonough entered Johnson's room
to conduct a well-being check. Immediately, they noticed blood
droplets on the floor just inside the doorway. Johnson was
lying in an odd position on the floor, partially face down and
on her side, with blood around her. Hanafin noticed a gunshot
wound on her side. Blood smears were located by the telephone
on the nightstand and on the bedspread. The telephone cord was
5
stretched out under Johnson's body. Officers suspected that
Johnson was deceased, which was confirmed by emergency medical
responders.
After they found Johnson, Detective James Tigges arrived at
the hotel at around 4 or 5 A.M. and secured the exit and
entrance at the wing of the building closest to the street.
Tigges retrieved a wallet found by a guest at the front desk,
which contained a tissue and a receipt from a store in Florida.
Tigges also searched Backpage and located Johnson's
advertisement. When he called the number listed, Johnson's cell
phone in the hotel room began to ring. Upon examining Johnson's
cell phone records, officers observed a cell phone number ending
in 9575 was used to contact Johnson at around the time of the
911 call (9575 number).
B. Emily.3 From July 1 to July 2, 2015, Emily was staying
at a hotel in Woburn (Woburn hotel). At that time, Emily was
working as an escort and advertising for her services on
Backpage. On July 1, before the shooting of Johnson, she was
contacted by someone using the 9575 number to ask about her
availability that evening; she made an appointment to meet with
3 A pseudonym.
6
the caller.4 She received a text message at 11:52 P.M. from the
9575 number asking for her room number, which she provided.
Emily heard a knock on her door and looked through the
peephole in her door to see a young Black man with his hair in
shoulder-length braids and wearing a baseball cap. As soon as
she opened the door to let him in, a second man barged into her
room along with the first man, pushing Emily into the closet
area behind the door and grabbing her face. The second man also
was Black, had medium-toned skin and big brown eyes, and
appeared to be very angry.5 At the same time that the second man
grabbed her, he put a gun to her forehead. She believed that
the gun they used was black and not a revolver, and that both
the men were about her height, five feet, four inches tall. She
did not remember seeing tattoos or facial hair on either man.6
The second man said to Emily, "If you scream, believe me, I
can scream louder. Where da money at? I'm not playin'. Where
da money at?" The first man, who had braids, was standing
4 The 9575 number contacted her at 10:49 P.M. on July 1,
2015, and they had additional telephone calls at 11:21 and 11:53
P.M.
5 In comparison, she believed that the first man seemed
intimidated by the second man and "empathetic" toward her,
despite the fact that it was clear that the use of the gun was
apparent to the first man who took her property.
6 The defendant had tattoos on his right arm and a small
amount of facial hair. He is approximately six feet tall.
7
beside the second man at his left. Emily told them that she
would give them her money, and the second man kept the gun to
her side as she went to her dresser. When she opened a drawer
to remove her purse, she remembered that she had hidden her cash
under the table between the two beds. The gun remained pointed
at her as she walked toward the table. The first man was with
them between the two beds.
When she went to reach under the table to get the money,
the second man with the gun moved her away from the area and
forced her to the front of the bed and to the floor; he directed
the first man to look for the money while the second man kept
the gun on Emily. The first man grabbed the money, in the sum
of $700.
They brought her purse over to the bed and looked through
it. In her wallet, she had medical, identification, and Social
Security cards belonging to her and her children, and receipts
from her neighborhood stores in Florida. In her purse she had
two money orders. When the first man found the money orders, he
asked the second man whether they should take them, and the
second man responded, "No. Leave those." As the gun was
trained to her head and she was on the floor, the first man, at
the direction of the second man, ransacked her room, flipping
over the mattresses, looking in the bathroom, and trying to get
into the adjoining room through a locked door. They took
8
Emily's marijuana from one of her dresser drawers. One man
asked her, "Where da work at?," which she took to be a request
for cocaine. She told them that she did not have any. As they
were leaving, the second man with the gun told her he would
"holler at" her. The men exited to the right, which led her to
believe they were going out the back entrance to avoid the
lobby.
Although she called the front desk immediately after this
incident, when the clerk answered Emily hung up because she
needed to continue working. For that same reason, she did not
report the incident to police right away. Later, while still in
Woburn, she heard about Johnson's murder.
When she tried to extend her stay, the manager confronted
her with her Backpage advertisement and told her that she had to
leave. She traveled to Maine and had a flight scheduled to
return to her Florida home on July 4, 2015. On the evening of
July 3, she called the Burlington police department and reported
what had happened to her at the Woburn hotel.
C. Sarah.7 From July 1 through July 2, 2015, Sarah was
staying at a hotel in Saugus (Saugus hotel). On July 1, Sarah
7 A pseudonym. No charges were filed against the defendants
in relation to the incident involving Sarah, but evidence of its
occurrence was admitted to show the defendants' state of mind,
intent, plan, pattern of operation, common scheme, and identity,
over the defendants' objection. The judge instructed the jury
that the evidence was not to be considered for propensity or to
9
had an advertisement on Backpage, to which she received a
response. At 10:55 P.M., there was a call from the 9575 number
to Sarah's cell phone. There were two more calls placed from
the 9575 number to Sarah's cell phone at 11:24 and 11:30 P.M.
After she told the caller her room number, she went to the door
to admit him. When he knocked on the door and she looked
through the peephole, she said, "I'm sorry, but I don't do Black
guys." The man at the door responded, "I'm not Black, I'm
Spanish." Sarah testified that the man had braids and wore a
hat and baggy clothing. She did not let him in because he "just
didn't look right to" her.
ii. The investigation. In Johnson's room, police did not
find a shell casing. They did find her wallet, which contained
$1,875.
On July 2, 2015, State police Trooper Sean O'Brien returned
to the Burlington hotel to retrieve its video surveillance.
Because the video system was unable to play back the footage at
that time, he went to an office building across the street to
see whether he could obtain footage from that location. O'Brien
discovered that a security camera on the property pointed
directly at the street and included the hotel entrance. Aware
that witnesses heard a loud noise at around 12:20 to 12:25 A.M.
prove that the defendants were of bad character, but only for
the limited purpose stated.
10
on July 2, O'Brien watched the video recording backward from
when police arrived at the hotel. He observed that at 12:14
A.M. that day, a light colored, four-door sedan missing a hubcap
drove toward the hotel.8 At 12:23 A.M., this car took a left
turn from the hotel parking lot and traveled in front of the
office building's security camera, revealing that the front
right quarter panel was a different color from the rest of the
car.
Later that day, O'Brien was able to view video footage from
the Burlington hotel. In the hotel video recording, as viewed
from the front and side door cameras, a Black man wearing black
cargo-style pants, a sweatshirt with thick horizontal stripes,
and a hat with a team logo on the front was seen walking in the
front door to the lobby and looking at his "smart phone" at
approximately 12:19 A.M. At approximately the same time, a man
wearing a black hooded sweatshirt, a hat, and dark pants or
jeans walked in the side door and peered in, seemingly waiting
and watching for something through the glass, and ultimately
entering less than a minute later. At approximately 12:23 A.M.,
both men were observed running from the side door. The man in
the striped sweatshirt had visible thin braids, approximately
shoulder length.
We have independently reviewed the relevant video footage
8
as part of our review under G. L. c. 278, § 33E.
11
There were several text messages and calls between Johnson
and the 9575 number on July 1, 2015, until 12:19 A.M. on July 2.
After speaking with Robert Dingess (a hotel resident) and
looking at his cell phone, police learned that Dingess had been
friendly with a hotel employee he knew as Remy. Dingess later
identified Jeune as Remy. The original telephone number that he
had in his contacts for Jeune was the 9575 number.9
At approximately 12:30 A.M. on July 2, and continuing
through the early hours that morning, the 9575 number contacted
Dingess asking what had happened at the hotel, whether someone
had been shot, and whether news reporters were present. At 3:07
A.M., someone using the 9575 number sent Dingess a text message
to delete that number and the user's messages, that the user
would send Dingess a text message from a new number the next
day, and that "shit's going to be hot." At 4:55 A.M., Dingess
got a text message from a telephone number ending in 8819, which
was Jeune's new number.
As a result of this analysis of the records to determine
who contacted the 9575 number, officers went to a house on
Wildmere Avenue in Burlington at 10:40 A.M. on July 3. O'Brien
and Burlington police Detective Thomas Carlson both went to the
Wildmere address in separate, unmarked cars and wearing plain
9 Additionally, a friend of Jeune testified that she had
used the 9575 number to contact him.
12
clothes. Parked in the driveway was a gold-colored four-door
Toyota Camry that was missing its left rear hubcap and had a
dark front right quarter panel. The Camry appeared to be "an
exact match" to the one that O'Brien had observed in the office
building security camera video footage. They learned from
dispatch that the registered owner of the Camry was Jeune.
Carlson and O'Brien set up surveillance down the street
from the address with other officers, choosing not to park in
front of the house so as to avoid detection. At some point, the
Camry was driven away without drawing the attention of the
officers. After waiting for some time to see whether the Camry
returned, police put out a "be on the lookout" for the car. At
approximately 6 P.M., they learned that the car was in
Winchester, stopped at a fast-food restaurant drive-through
window.
O'Brien took about a minute to arrive; on arrival, he
observed three Black men in the car. Approximately five
uniformed police officers from both Winchester and Woburn were
in the parking lot when he arrived. The Woburn officers left
when O'Brien and Carlson arrived. As time went on, additional
detectives arrived, including Sergeant Bruce O'Rourke from the
State police and McDonough and Tigges.
O'Brien initially had a conversation with the driver of the
car, Jeune. The defendant was the front seat passenger, and
13
Romane Price was in the right rear seat. O'Brien informed Jeune
that they were interested in a car similar to his and told him
that he was not under arrest and was free to go. Jeune
responded that he knew he was free to go, agreed to step out of
the car, and walked to a grassy curbed area in the parking lot
to have a discussion with O'Brien. After being asked where he
was on July 1 and July 2, Jeune responded that he was at a
girlfriend's house in Boston; according to him, the Camry was
parked there all night. He would not divulge the girlfriend's
name or address. During their conversation, Jeune informed them
that he worked at a hotel in Waltham, and that he previously had
worked at the Burlington hotel. Jeune stated that he lived at
the Wildmere address with his mother and another girlfriend.
The conversation lasted from three to four minutes.
O'Rourke approached the car and told the defendant and
Price that the car matched the description of a car used in a
serious crime that occurred on Wednesday night, and that the
occupants of the car might have had nothing to do with that
crime but that the officers had a need to investigate the car.
The defendant was asked to step out of the car, and he was pat
frisked. When O'Brien approached the defendant, he already was
out of the car and standing toward the rear of it. Over
objection, O'Brien testified that he recognized the defendant to
be "the Black male who walked in through the front door of" the
14
Burlington hotel. The defendant told O'Brien that he lived in
Boston and worked at Logan Airport. He said he was working
there on July 1 from 11 P.M. until 6:30 A.M. on July 2. Later,
this was shown to be false; he worked the night before and the
night after, but not July 1 to July 2. The defendant provided
O'Brien with his cell phone number, ending in 0046 (0046
number). O'Brien noticed that the defendant's cell phone number
appeared on the 9575 number records. O'Brien seized the
defendant's cell phone as evidence and, after a conversation of
from three to four minutes, told the defendant that he was free
to go.10
The car was seized as evidence and towed to the Burlington
police department. After their brief conversations with the
officers, Jeune, the defendant, and Price went into the
restaurant to eat. O'Brien was there for a total of
approximately forty minutes. A local freelance photographer
took photographs of the encounter, which were admitted in
evidence at trial.
O'Brien first heard about Emily on the evening of July 3,
2015, after he had the interaction with the codefendants and
Price in the parking lot. Emily spoke with Carlson after the
stop. That night, police obtained search warrants for the
10The defendant's cell phone was not searched until police
secured a search warrant.
15
residences of both the defendant and Jeune. In the early
morning hours on July 4, officers executing the search warrant
at the defendant's home seized baseball hats, a sweatshirt, and
dark colored pants from the defendant's home. O'Brien testified
that the hats and the sweatshirt taken from the defendant's home
were not those seen in the video recording, and that he could
not say that the pants they seized were the pants in the
recording with one hundred percent certainty.
At Jeune's address, in a Jeep registered to Jeune that had
a flat tire, officers located Social Security cards, health
cards, debit cards, Medicaid cards, and identification cards
belonging to Emily and her children. They also found a bag with
ammunition in it.11 In Jeune's house, they found a baseball
team's hat with stickers on the brim, a box for an Alcatel brand
cell phone, various items of clothing, cash, and a keycard that
matched the brand of the Burlington hotel.
When officers searched the Camry, they found, among other
items, two cell phones (an Alcatel cell phone and a Kyocera
brand cell phone) and a hotel employee nametag with the name
"Remy." Police also did reenactments of the Camry being driven
11A State police trooper assigned to the firearms
identification section opined that the spent projectile
recovered from Johnson's body was .38 caliber. He testified
that the ammunition recovered from Jeune's house appeared to be
.38 special caliber designed for use in a revolver.
16
to the Woburn hotel and the Burlington hotel, and the video
recordings of the reenactments were entered in evidence.
State police Trooper Edward Keefe examined the Alcatel cell
phone (Alcatel), with a telephone number ending in 9096 (9096
number), and found that it had been used on July 2, 2015,
numerous times throughout the day to search for articles about
the shooting at the Burlington hotel. Keefe also found that it
had been used to view Backpage 199 times, including on July 1.
The Alcatel was used to visit Backpage advertisements for Emily,
Sarah, and Johnson on July 1 through July 2. The Alcatel was
used to send several text messages to Bethzaida Hernandez, a
worker at the Burlington hotel, the morning after the shooting
asking about the incident.12 Also on July 2, at around 12:30
P.M., the Alcatel was used to send a text message to a contact
named "Mama Bear" stating, "Its on da news now." The text
messages continued, "Delete any n all text or phones kalls from
my flip. N this message." Right after the Alcatel was used to
send a text message to Mama Bear, at 12:36 P.M. the user sent a
text message to the defendant, "Ima kall u in a min. Its on da
news." At 12:37 P.M., the Alcatel was used to send another text
message to Mama Bear, "I don't wanna be here. They didn't even
12Hernandez testified at trial and identified the coworker
she knew as "Remy" to be Jeune. She said that he asked about
the murder during their conversation.
17
search the room yet." At 1:40 P.M., the Alcatel was used to
send a text message to Mama Bear asking, "Did u Google it?" At
1:42 P.M., Mama Bear sent a text message to the Alcatel, "I'm
bout to now." At 2:28 P.M., Mama Bear sent another text
message: "No suspects."13
Someone using the Alcaltel contacted the defendant's cell
phone number (listed in the Alcatel's contacts list as "Staxx")
ninety-eight times. The defendant's cell phone was used to
contact the Alcatel (listed in the defendant's contacts list as
"Eps") at 10:44 and 11:48 A.M. on July 2, and someone using the
Alcatel called the defendant at 10:59 A.M. that same day. At
12:44 P.M., after the Alcatel was used to send the text message
that the user would call regarding what was on the news, the
Alcatel was used to call the defendant. The defendant called
the Alcatel at 1:08 and 1:09 P.M. The last contact between the
Alcatel and the defendant's cell phone was on July 3 at
approximately 1:14 P.M.
The defendant's cell phone also received an incoming call
on July 3 at 2:19 P.M. and was used to make an outgoing call to
the telephone number ending in 8819 at 2:22 P.M. This was the
third telephone number connected to Jeune; Dingess received a
13 There were further text messages between Mama Bear and
the Alcatel regarding the news throughout the day.
18
text message from this number stating that it was the new cell
phone number for "Remy."
On July 1, 2015, the defendant and the 9575 number had
contact at 12:08 and 8:48 P.M. On June 12, the defendant was
asked by another individual what was "Eps"'s cell phone number:
the defendant's cell phone was used to send a text message with
the 9575 number in response to the inquiry. On July 3, after
the shooting of Johnson, when the same individual asked the
defendant for the cell phone number again, the defendant gave
the 9096 number.
There was no outgoing activity on the defendant's cell
phone on July 1, 2015, from 11:56 P.M. to July 2 at 12:09 A.M.
Again from 12:09 through 12:35 A.M., there was no outgoing
activity. State police mapped the available cell site location
information (CSLI) for the defendant's cell phone. The CSLI on
July 1 at 8:54 P.M. put the cell phone and its user at 1010
Massachusetts Avenue in Boston. On July 2, just past 1 A.M.,
CSLI placed the cell phone near Hyde Park Avenue in the
Roslindale section of Boston. At 1:08 A.M., it placed the cell
phone on Brookway Road in Roslindale. At 1:09 A.M., CSLI put
the cell phone on Hyde Park Avenue, by the Forest Hills transit
station. At 1:26 A.M., CSLI showed the cell phone to be near
the intersection of Morton Street and Blue Hill Avenue in the
Mattapan section of Boston. The window of time in between 8:54
19
P.M. on July 1 and 1 A.M. on July 2 was not produced by the
defendant's cell phone provider.
The CSLI for the Alcatel put the cell phone in Saugus at
11:30 P.M. on July 1, the time at which the Camry was seen at
the Saugus hotel. The CSLI jumped ahead to 3:13 A.M. on July 2,
when the Alcatel used a tower on Massachusetts Avenue in Boston.
Also at 3:13 A.M., it used a tower on Blue Hill Avenue in Boston
to receive a text message. Between 3:30 and 3:45 A.M., the CSLI
placed the Alcatel near Neponset Avenue in the Dorchester
section of Boston. At 5:07, 7:27, 8:46, 9:19, and 9:21 A.M.,
the Alcatel used a tower located on Mountain Road in Burlington.
According to CSLI, the cell phone associated with the 9575
number was in the area of 500 Morton Street in Dorchester at
9:40 P.M. on July 1. At 9:44 P.M., the 9575 number activated a
tower on Cummins Highway in Roslindale. The 9575 number also
activated towers in Saugus, Woburn, and Burlington at the times
it was being used to communicate with the cell phones of Sarah,
Emily, and Johnson. On July 2, from 12:30 to 12:38 A.M., it
activated towers in Woburn, Stoneham, and the Charlestown
section of Boston. At 12:42 A.M., its CSLI disclosed its
location in the area of Traveler Street in Boston. In going
through the 9575 number records, the last call made from the
9575 number was at 1:35 A.M. on July 2, 2015.
20
After the search of the defendant's home, on July 4,
O'Brien watched video footage from the Woburn hotel from July 1
to July 2, 2015.14 On July 1, 2015, at approximately 11:52 P.M.,
the video recording showed a car being driven around the parking
lot. The car was a light-colored four-door sedan missing its
left rear hubcap and with a different color gasoline cap cover
(which he noticed on the Camry during the stop), appearing also
to be a match to the car in the office building security camera
video recording. The car was driven around the hotel several
times before it stopped, and a Black man got out of the car and
walked into the hotel at approximately 11:54 P.M. The man
walking into the hotel was wearing a hat with a baseball cap
with an "A's" logo on the front, a black sweatshirt, a white
shirt with a design on the front, and dark pants. The man
walked over to a side door and appeared to manipulate it before
walking out the front door while using a cell phone. The car
then was driven to the side door; two men got out of the car --
the same man who previously had manipulated the side door, along
with a second man who walked to the side door and went into the
Also on July 4, Carlson and two other police officers
14
picked up Emily in Maine. When Emily was shown a photographic
array that included Jeune (and not the defendant), she suggested
that someone who was not Jeune may have been involved. She
identified the wallet and the receipt found by police as having
been stolen from her.
21
hotel at approximately 11:58 P.M.15 The second man was wearing a
striped sweatshirt, black pants, and a hat, and had his hair in
braids. The car was parked, and the two men came out of the
side door at approximately 12:05 P.M. after coming from the side
stairwell area. As the car was driven away, the different color
front quarter panel was visible. Both men appear to be the same
men who appeared in the Burlington hotel video recording.
O'Brien also observed video footage from the Saugus hotel
where Sarah stayed on July 1 and July 2. On this video footage,
he observed the same Camry. O'Brien observed that the same men
who appeared in the Burlington hotel and Woburn hotel footage
were in the Saugus hotel video recording. O'Brien identified
the man wearing the striped sweatshirt as the defendant. At
approximately 11:32 P.M. on July 1, the man wearing the striped
sweatshirt walked in the front door of the hotel and to a side
door, where he let the second man in, and both men ascended the
stairs. A little more than five minutes later, the two men came
out the side door with their hoods up, and the Camry was driven
away.
The defendant's girlfriend at the time of the crimes
testified that she knew Jeune as a friend of the defendant, and
that Jeune drove a brown or tan car. She braided the
15The car then was driven off, suggesting a third
individual was involved.
22
defendant's hair at that time, and he had a "bunch" of single,
chin length "unattached braids." She had seen the defendant
with a gun on one occasion in early to mid-May 2015.
b. Procedural history. On July 5, 2015, the defendant
agreed to accompany officers to the Woburn police station, where
he was arrested. The defendant was indicted on charges of
murder in the first degree, G. L. c. 265, § 1; attempted armed
robbery, G. L. c. 274, § 6; unlawful possession of a firearm,
G. L. c. 269, § 10 (a); armed robbery, G. L. c. 265, § 17; home
invasion, G. L. c. 265, § 18C; and armed assault in a dwelling,
G. L. c. 265, § 18A.
On July 18, 2016, the defendant filed motions to suppress
statements of the defendant, evidence recovered during the stop
of the Camry and from the defendant's home, and Emily's
identifications of the defendants as she saw them in a news
article online. The motion to suppress Emily's identifications
was allowed, but the other motions to suppress were denied.
A jury trial was held in November 2017. The defendant was
found guilty of murder in the first degree on a theory of
felony-murder and of attempted armed robbery of Johnson, guilty
of the lesser included offense of unarmed robbery of Emily, and
not guilty of unlawful possession of a firearm, home invasion,
and armed assault in a dwelling. The defendant was sentenced to
a mandatory term of life in prison for the murder conviction and
23
a concurrent term of from five to ten years in prison for the
unarmed robbery conviction.
2. Discussion. a. Motion to suppress statements. The
defendant argues that he was in custody when police asked him
questions about his whereabouts at around the time of the
crimes; therefore, he should have been given his Miranda
warnings. The Commonwealth argues that the defendant was not in
custody when he was questioned.
We discuss the facts as found by the motion judge,
supplemented only by uncontroverted evidence from witnesses
credited by the motion judge. Commonwealth v. Privette, 491
Mass. 501, 518 (2023). The motion judge found that, at 5:58
P.M. on the day of the stop, Officer Edward Chisholm of the
Woburn police department parked his cruiser at an angle to
prevent the Camry from exiting the drive-through and approached
the passenger's side with his gun in his holster.16 After
observing Chisholm approach, Woburn police Detective John Walsh
approached the car with his gun drawn in the "low ready"
position. There was no evidence that the defendant, Jeune, or
16The defendant does not challenge any factual findings by
the motion judge, except that police never conveyed to the
defendant that he was a suspect.
24
Price saw Chisholm with his weapon out of his holster.17
Chisholm "calmly" told the occupants of the car that he needed
their identifications, and that the car may have been involved
in a crime; the defendant, Jeune, and Price were cooperative.
O'Brien and Carlson arrived at the fast-food restaurant
soon after 6 P.M. There were as many as thirteen officers from
different agencies at various times, but a large portion of
these officers left the scene or were standing near the
perimeter of the parking lot.18 Walsh and Chisholm left the
scene minutes after O'Brien and Carlson arrived.19
O'Brien asked Jeune to get out of the car and told him that
he (O'Brien) wanted to speak with him regarding a similar car
and an investigation in Burlington. They spoke as Jeune sat on
a curb in an area away from the car. O'Rourke was present for
this conversation, and O'Brien told Jeune he was not under
arrest and was free to leave, which Jeune acknowledged by
stating, "I know." He was not provided with Miranda warnings,
17Price, who testified at the hearing on the motion to
suppress, said that the officer approaching the car had his hand
on his gun, but did not have his gun out.
18Winchester police stood by on the main street as a
uniformed presence as the stop was conducted in their
jurisdiction, but they were not near the car.
19A photograph taken by a freelance photographer depicted a
police car leaving the scene while an officer, presumably
Carlson, stood next to the defendant at the passenger's side
door.
25
but ultimately ended the conversation when he was asked whether
officers could search the car, and he responded in the negative,
telling the officers, "I think I need a lawyer." Jeune was then
told that they would be seizing the car, but that he was free to
leave.
Carlson, O'Rourke, and O'Brien all noticed that the
defendant looked similar to the Black male with braids depicted
in the Burlington hotel surveillance video recording. O'Rourke
told the defendant and Price that police were interested in the
car as it potentially had been involved in a serious crime where
weapons were used, and the defendant was asked to step out of
the car. O'Rourke asked the defendant whether he had any
weapons on him, and the defendant said that he did not.
O'Rourke conducted a patfrisk of the defendant at the rear of
the car; Carlson had his hand on the defendant, and a few other
officers were off to the left out of arm's reach of the
defendant. The defendant was told that he was not under arrest,
and he was not provided with Miranda warnings. O'Rourke
testified at the hearing on the motion to suppress that the
defendant was not free to leave until the patfrisk was complete,
and O'Rourke did not tell the defendant that he was free to
leave after he concluded the patfrisk.
When Carlson and O'Brien spoke to the defendant in a grassy
area to the right of the pavement near the entrance, however,
26
they advised him that he was free to leave. The defendant
responded, "O.K.," and proceeded to answer the officers'
questions about his whereabouts on the day of the crime, his
home address, and his telephone number. His cell phone was
seized, and the car was towed. The defendant, Jeune, and Price
went into the restaurant and were allowed to leave. The motion
judge found that the fact that the defendant and Jeune had
become suspects was not conveyed to them during the stop.20
Price, the defendant's cousin, testified that he twice
asked officers whether he could leave, and that he was told in
response that he could leave when the officers were finished.
The motion judge found it "noteworthy" that in none of the
photographs taken of the encounter were officers seen standing
in the area where Price stood behind the car.21
"In reviewing a ruling on a motion to suppress, we accept
the judge's subsidiary findings of fact absent clear error 'but
conduct an independent review of his ultimate findings and
conclusions of law.'" Commonwealth v. Medina, 485 Mass. 296,
20Connolly, who also was present to speak with the
defendant, testified: "In my eight years in the police, I do[
not] think that I[ have] ever seen a more casual environment for
considerably such a serious incident."
21The motion judge rejected Price's testimony that he was
subjected to a patfrisk.
27
299-300 (2020), quoting Commonwealth v. Cawthron, 479 Mass. 612,
616 (2018).
When a suspect is subjected to custodial interrogation,
Miranda warnings are required.22 Medina, 485 Mass. at 300. "A
person is in custody whenever he is 'deprived of his freedom of
action in any significant way.'" Commonwealth v. DePeiza, 449
Mass. 367, 375 (2007), quoting Commonwealth v. Almonte, 444
Mass. 511, 517, cert. denied, 546 U.S. 1040 (2005). Two related
inquiries inform the determination as to whether a suspect was
"in custody" at the time of questioning: "first, what were the
circumstances surrounding the interrogation; and second, given
those circumstances, would a reasonable person have felt he or
she was not at liberty to terminate the interrogation and
leave." Medina, supra, quoting Thompson v. Keohane, 516 U.S.
99, 112 (1995).
"Even where a suspect is temporarily seized, '[n]ot every
Terry-type investigative stop results in a custodial
interrogation.'" Cawthron, 479 Mass. at 617, quoting DePeiza,
449 Mass. at 375. See Terry v. Ohio, 392 U.S. 1 (1968);
Commonwealth v. Kirwan, 448 Mass. 304, 312 (2007) (defendant not
in custody, "although the defendant was not free to leave, [the]
22We agree with the motion judge that asking the defendant
where he was on the night of the crimes was "designed to elicit
incriminatory responses from the defendant," and thus
constituted interrogation for purposes of Miranda.
28
interrogation was brief and in the nature of a preliminary
investigation, and the defendant's detention was minimal and
similar to a Terry-type stop").
We recognize that "[t]he custody and seizure inquiries
. . . are not identical." Commonwealth v. Evelyn, 485 Mass.
691, 698 (2020). The custody inquiry, for Miranda purposes,
"primarily protects the right against self-incrimination and the
right to counsel under the Fifth and Sixth Amendments to the
United States Constitution and art. 12 of the Massachusetts
Declaration of Rights." Id. Conversely, the seizure inquiry is
concerned with "the right to be free from unreasonable seizures
under the Fourth Amendment and art. 14." Id. The inquiries
each "consider somewhat different questions." Id. Under both
inquiries, however, the totality of the circumstances are
considered, "limited to the objective circumstances of the
encounter," to determine whether a person has been compelled to
engage with the police. Id. at 698-699. Here, the defendant
argues specifically that he was in custody at the time of the
encounter, rendering his statements unlawfully obtained.
A court considers, at a minimum, four factors when
determining whether the circumstances surrounding an encounter
suggest that a defendant is in custody during an interrogation:
"(1) the place of the interrogation; (2) whether the
officers have conveyed to the person being questioned any
belief or opinion that that person is a suspect; (3) the
29
nature of the interrogation, including whether the
interview was aggressive or, instead, informal and
influenced in its contours by the person being interviewed;
and (4) whether, at the time the incriminating statement
was made, the person was free to end the interview by
leaving the locus of the interrogation or by asking the
interrogator to leave, as evidenced by whether the
interview terminated with an arrest."
Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). "Rarely
is any single factor conclusive." Cawthron, 479 Mass. at 618,
quoting Commonwealth v. Bryant, 390 Mass. 729, 737 (1984). The
Groome factors are not intended to be "a straitjacket," and
"they do not limit the obligation of a court to consider all of
the circumstances that shed light on the custody analysis."
Medina, 485 Mass. at 301. Applying these factors in the
circumstances here, the defendant has not met his burden to show
that he was in custody when he made the incriminating statements
to the officers. See Cawthron, supra.The interrogation took place at around 6 P.M. in a drive-
through and parking lot area of a fast-food restaurant. This
environment, in itself, was not coercive. See Cawthron, 479
Mass. at 618 ("The detectives questioned the defendant in a
public parking lot, during the day, and the defendants were
neither handcuffed nor otherwise physically restrained. This
environment was not police-dominated"). The car was blocked
from exiting the drive-through by a cruiser on its initial stop,
and officers had firearms visible, although there was no
30
evidence that they were seen to be drawn. The defendant was not
handcuffed, nor was Jeune. Although the judge found that there
were as many thirteen officers at the stop at various times,
many officers left quickly after they arrived, or did not
interact with the suspects. See Medina, 485 Mass. at 302 (and
cases cited) ("Although more officers arrived over the following
two hours, it does not appear that they meaningfully restricted
the defendant's freedom of movement within his home"). See also
Commonwealth v. Alcala, 54 Mass. App. Ct. 49, 54 (2002)
("Although some ten to fifteen local, State, and Federal police
and other officers were in the general vicinity, and perhaps six
or seven 'converge[d]' on the three men at the building, no more
than two officers were with the defendant when he was
interrogated").
That the defendant was moved a short distance to be
questioned separately does not alter the conclusion. "[T]he act
of separating defendants briefly for individual questioning does
not create an inherently coercive environment." Cawthron, 479
Mass. at 619. Contrast Commonwealth v. Coleman, 49 Mass. App.
Ct. 150, 154 (2000), quoting Commonwealth v. Gallati, 40 Mass.
App. Ct. 111, 113 (1996) (situation "isolating and coercive"
where three police officers were deployed in small room with
path to closed door "shadowed by the questioner himself").
Where the questioning was very brief, the separation of the
31
defendant to the grassy area of the parking lot alone did not
render the environment a coercive one.
Whether the defendant was questioned in a police-dominated
area, given the circumstances mentioned supra, is a close call.
We assume that he was questioned in such an area for the sake of
our analysis and move on to discuss the other three Groome
factors.
We agree with the motion judge that the officers did not
convey to the defendant that he was a suspect in the murder
investigation. Even before being questioned by O'Brien,
O'Rourke told the defendant and Price that the crime "might have
nothing to do with you but, if you don't mind, just keep your
hands on your lap." The fact that O'Rourke asked the defendant
to step out of the car and pat frisked him did not on its own
communicate to the defendant that he was a suspect. In fact,
O'Rourke testified that he told the defendant, after asking
whether he had any weapons on him, "I[ am] going to pat you down
and make sure. Is that okay with you?"23 He testified that the
23 The fact that O'Rourke subjectively knew that the
defendant was not free to leave until he was frisked is not of
importance because that was not expressly communicated to the
defendant. See Medina, 485 Mass. at 303, quoting Commonwealth
v. Morse, 427 Mass. 117, 123-124 (1998) ("[S]ubjective beliefs
held by law enforcement officers are irrelevant in the
determination whether a person being questioned is in custody
for purposes of the receipt of Miranda warnings, except to the
extent that those beliefs influence the objective conditions
surrounding an interrogation").
32
defendant responded in the affirmative. The officers'
suspicions "remained unexpressed at this point," and there was
no evidence that they indicated to the defendant his similarity
to the individual in the video footage. Medina, 485 Mass. at
302-303 (police did not signal to defendant he was suspected of
committing crime even where they explained they received report
that human remains were in defendant's home). See DePeiza, 449
Mass. at 376 (officer "did not imply that the defendant was
suspected of a crime merely by asking if he was carrying a gun.
Carrying a firearm is not a crime, and the defendant does not
suggest any other criminal conduct of which he was
suspected. . . . Miranda warnings were not required between the
announcement of the patfrisk and the frisk itself").
Even accepting the motion judge's finding that the
defendant was "clearly not free to go at" the time of the pat
frisk, when he spoke with O'Brien afterward, O'Brien explicitly
told the defendant that he was not under arrest and that he was
free to go. These circumstances would not transform the
encounter into a custodial one. See Groome, 435 Mass. at 213(defendant's fear he might be in custody when in police cruiser
voluntarily was addressed by officer "when he told the defendant
that he was not being arrested"). See also Cawthron, 479 Mass.
at 619 (asking defendant what he had just purchased, when
detective believed he witnessed drug transaction, did not convey
33
suggestion defendants were suspects because it could have
referred to innocent activities).
Moreover, the nature of the interrogation points to a
conclusion that the defendant was not in custody when he was
questioned. The motion judge found that the "questioning was
not aggressive in any respect." This conclusion was supported
by the evidence presented at the hearing on the motion to
suppress. The defendant was questioned by two law enforcement
officers: O'Brien and Connolly. "[N]othing in the record
suggests that they were 'aggressive,' 'persistent,' or 'harsh,'
which would support a conclusion that the defendants had been
subject to a custodial interrogation." Cawthron, 479 Mass. at
621, quoting Coleman, 49 Mass. App. Ct. at 155. In fact, Price
admitted on cross-examination at the hearing on the motion to
suppress that the officers were polite and courteous. The
questions asked by the officers were "investigatory rather than
accusatory" where there was no indication that they "raised
their voices, threatened the defendant, or expressed disbelief
in response to his answers." Medina, 485 Mass. at 303, quoting
Kirwan, 448 Mass. at 311.
Finally, the brief questioning terminated with the
defendant, Jeune, and Price walking around the area and
congregating among themselves without police supervision. They
went into the fast-food restaurant after the encounter and left
34
the location without being arrested by the officers. Although
freedom to leave "may be a critical factor . . . [but] cannot be
the determinative factor," the fact that the defendant was free
to leave, acknowledged that he was aware of that, and did leave
strongly supports a conclusion that a reasonable person in the
defendant's position would have felt free to leave. Medina, 485
Mass. at 304, quoting Cawthron, 479 Mass. at 623.
We conclude, based on the totality of the circumstances,
that the defendant was not in custody at the time he was
questioned by the officers because a reasonable person in his
position would have felt that he was free to leave during the
questioning.24
The defendant also asks that the court consider race as a
factor in considering whether a person such as he would feel
free to leave a police interaction. We have held that "the more
pertinent question is whether an officer has, through words or
conduct, objectively communicated that the officer would use his
or her police power to coerce that person to stay."
Commonwealth v. Matta, 483 Mass. 357, 362 (2019). We
acknowledge "that the troubling past and present of policing and
race are likely to inform how African-Americans and members of
24The fact that O'Brien characterized the motor vehicle
stop as a "takedown" in his notes does not transform a
noncustodial encounter into a custodial one.
35
other racial minorities interpret police encounters." Evelyn,
485 Mass. at 701. As we determined in Evelyn that other factors
led to a conclusion that the defendant was seized, we did not
decide "whether the race of a defendant properly informs the
seizure inquiry." Id. at 703. Similarly, here, where the
totality of the circumstances discussed supra overwhelmingly
suggest that the defendant was not in custody for purposes of
Miranda v. Arizona, 384 U.S. 436 (1966), consideration of his
race would not tip the scale with respect to whether the
defendant was in custody in this particular case. "We do not
decide constitutional questions unless they must necessarily be
reached." Commonwealth v. Raposo, 453 Mass. 739, 743 (2009),
quoting Commonwealth v. Paasche, 391 Mass. 18, 21 (1984). Thus,
we do not answer the question posed here. Evelyn, supra ("We
. . . attempt to focus attention on the issue of race, while not
establishing bright-line rules that potentially could do more
harm than good").
b. Dismissal of jurors. The defendant argues that the
judge's dismissal of two jurors for their ability to understand
the "legal principles" and "complex issues" in the case was
structural (and prejudicial) error, and the product of racial
bias. The Commonwealth argues that the judge properly excused
the jurors because they were unable to sufficiently understand
the judge's instructions on the legal issues. The Commonwealth
36
also argues that there is no evidence of racial bias on behalf
of the judge. We agree with the Commonwealth that the judge did
not abuse his discretion in excusing the jurors.
Juror no. 14 was a twenty-two year old woman who grew up in
Haiti and, when she was in the eighth grade, moved to the United
States with her adoptive parents, finishing high school in
Middleton. During voir dire, counsel for the defendant asked
her about her "feelings or understanding [of] the presumption of
innocence." She responded, "My feeling is, I don't know, it's
sad, I would say. I don't know. Yeah, but. That's all I have,
that's it really sad, but." After counsel asked her, "What's
sad?", she responded, "From the basic of the beginning of the
paper, and like when I read it over again, it's sad to, like,
read it and listen to it. But, yeah." When counsel pressed
juror no. 14 again on her understanding of the presumption of
innocence, juror no. 14 answered, "I do not exactly know what it
means, so I don't think I really have a position here. It's
sad."
Counsel then asked her whether she knew what it meant to be
innocent. She replied,
"Innocent is just, like, if the person, if there's two
people and then one of the commits something and the other
one was there but did not really do anything, so I would
think he or she was innocent. . . . But I don't know if he
or she is still going to be affected by just being there.
But I would call that person innocent."
37
When asked what presumption meant, juror no. 14 stated that she
did not know. When the judge asked her whether she understood
the legal information about the case when he read it to the
jurors, juror no. 14 responded that she did understand. The
Commonwealth asked her whether she would be able to look at each
defendant individually and determine on the evidence whether the
case was proved against them beyond a reasonable doubt. Juror
no. 14 responded, "Um, I do not know. No?" The Commonwealth
then broke it down for the juror; she understood the defendants
were charged in a joint venture, and that she had to decide
their guilt or innocence individually based on the evidence.
When asked about joint venture, juror no. 14 said, "The words,
joint venture, that someone, like, I don't know, I don't exactly
understand that part. But I think that's the only part that
maybe, like, bring me down in the question a little." After the
Commonwealth read the judge's instructions on joint venture to
the juror again, she said that she thought she would be able to
follow them. Jeune's attorney then asked leading follow-up
questions of the juror. Juror no. 14 indicated that she would
follow the law the way the judge gave it to her.
After asking juror no. 14 to step outside, the judge spoke
with counsel:
"I have a concern about her understanding of the legal
principles, but I'm going to listen.
38
"Her initial response when asked about those aspects did
not demonstrate that she really did have an understanding.
I think everybody was trying to get her to that point, but
I have a concern about her level of understanding.
"So, I'm willing to listen."
Counsel for the defendant stated that her willingness to
learn and her interest suggested that with "more time and
experience," she would be fully capable of understanding the
requisite law. Jeune's attorney discussed juror no. 14's race
and said, "of all the people that have come here this morning,
this is the person that is closest demographically to my
client." He noted his concerns about striking jurors "because
their vocabulary is not the same as our educated vocabulary."
The Commonwealth stated that juror no. 14 was "a remarkable
young woman" who had "overcome tremendous obstacles and is
obviously very bright and very engaged." Nonetheless, the
Commonwealth was unsure that juror no. 14 understood the
presumption of innocence. Defense counsel admitted that he "was
a little perplexed [himself] when she said that she was sad by
it," but he thought her confusion was due to a vocabulary issue.
The judge told counsel:
"It is important to me to make sure that we have a fair and
impartial jury. It is important to me that, if we can,
. . . we have some representation on the jury of people
that have backgrounds and who look like the defendants. I
think that's important.
"But it is important to me that we have jurors who can
understand and who demonstrate an ability to do this. This
39
is an extremely serious matter, and I have a concern about
her ability to understand.
"And we may not know whether she understands a concept.
The concepts that she was asked about, she did not
demonstrate a real understanding of.
"So while I'm torn, I'm going to excuse her."
At the request of Jeune's attorney, the judge allowed a few
more questions in voir dire. Juror no. 14 indicated that she
did her own research into the word "assumption" or
"presumption," and said that it meant, "you think or something
but it's not certainly true. Like, you think of something but
you're not exact of whether or not it is true." When he asked
her whether she believed that the defendants were innocent
unless the government could prove them guilty, she said, "I
don't want to say the wrong thing." After he told her,
"legally, these guys are innocent unless the government can
prove that they're guilty," she said, "Yes."
The defendant's counsel asked juror no. 14 whether she
looked up "assumption" rather than "presumption," and she said
she looked up both. Jeune's attorney asked her whether she
would like to serve on the jury, and she said, "Um, no. I don't
know." The judge asked her whether she had a concern about her
ability to disclose her real answer to the questions, and after
some back and forth, juror no. 14 indicated that she was
concerned about whether "to say the right thing or not. I do
40
not want to go down the wrong way with where to answer the right
question or not." She stated that she was concerned about
making the wrong decision in a case such as this. When Jeune's
counsel asked her whether she could figure out the trial, she
said, "If I get -- I don't know. If I learn more about it, I
will say yes." Over the defendant's objection, the judge
excused the juror. Jeune's attorney withdrew his objection.
Later that day, juror no. 65, another Haitian-American
woman, indicated on the juror questionnaire that she had a
scheduling problem. When asked about her problem, she said,
"Scheduling. Language." The judge asked her, as a follow-up,
whether she had a good reason why she could not serve as a
juror, and she answered in the negative. Juror no. 65 indicated
that English was not her first language, and that she had "just
[a] little bit" of difficulty understanding the questions. The
judge asked her whether she had "some difficulty understanding
the discussion that we had about some of the law that applies
here?" She replied, "Little bit." The judge asked her whether
her difficulty with the language would make it difficult for her
to be a juror. She first replied, "I don't know," then she
replied, "No." Juror no. 65, on her own, offered, "I'm gonna
try," but then acknowledged that the language would make it
difficult for her.
41
When the judge asked about her acknowledgment on the
questionnaire that there is something that would make it
difficult for her to participate in the trial, juror no. 65
said, "Because I'm gonna ask you to repeat for me if I not
understand very well this question." When the judge explained
the question further, juror no. 65 said, "Well, I misunderstood.
I don't have any problems. Sorry." Although she checked off on
the questionnaire that she knew someone from the district
attorney's office for Middlesex County or the defense attorneys'
offices, she told the judge, "No, I don't know anyone." Over
objections from both Jeune and defense counsel, the judge
excused juror no. 65. Jeune's attorney opined that juror no. 65
was not given a fair opportunity. The judge explained that he
excused her because she mistakenly answered "yes" to all the
questions stated above. The judge stated: "[In] those
circumstances, I feel that she was not a person who would have
understood the complex issues in this particular case."
We review the judge's dismissal of the jurors for an abuse
of discretion. Commonwealth v. Grier, 490 Mass. 455, 467
(2022). We will only find an abuse of discretion "where 'the
judge made a clear error of judgment in weighing the factors
relevant to the decision . . . such that the decision falls
outside the range of reasonable alternatives.'" Id. at 467-468,
quoting Commonwealth v. Grassie, 476 Mass. 202, 214 (2017),
42
S.C., 482 Mass. 1017 (2019). "We afford a trial judge a large
degree of discretion in the jury selection process."
Commonwealth v. Perez, 460 Mass. 683, 688 (2011), quoting
Commonwealth v. Vann Long, 419 Mass. 798, 803 (1995).
It is a trial judge's duty to ensure that a "prospective
juror will be able to fairly evaluate the evidence and apply the
judge's instructions on the law." Commonwealth v. Williams, 481
Mass. 443, 453 (2019). Voir dire of jurors, in a criminal case,
"shall include questions designed to learn whether such juror
understands that a defendant is presumed innocent until proven
guilty, that the [C]ommonwealth has the burden of proving guilt
beyond a reasonable doubt, and that the defendant need not
present evidence on the defendant's behalf." G. L. c. 234A,
§ 67A. "If the court finds that such juror does not so
understand, another juror shall be called in." Id.
The judge's questions and the attorneys' inquiry of both
jurors were designed to ensure understanding of these crucial
concepts. As to juror no. 14, despite her clear
misunderstanding of the quintessential legal principle of
"presumption of innocence," the judge allowed the attorneys to
question her extensively, presumably with the hope that she
would gain an understanding. The judge explicitly indicated
that he was sensitive to her similarity in race to the
43
defendants, but his concern that she could not understand the
important legal concepts at play resulted in her exclusion.
Although the attorneys were not permitted to examine juror
no. 65 as they were juror no. 14, it was clear based on the voir
dire that juror no. 65 had comprehension problems that likely
would affect her ability to serve as a juror in this complicated
trial. Juror no. 65 herself acknowledged that the language
barrier would make it difficult for her to serve on the jury.
When a "person is not able to speak and understand the English
language," there are grounds for disqualification from jury
service. G. L. c. 234A, § 4.
It is true that, in certain circumstances, "[a] 'lack of
working knowledge of the vocabulary of criminal law . . . simply
does not qualify as a valid, race-neutral basis on which to
exercise a peremptory challenge." Commonwealth v. Rosa-Roman,
485 Mass. 617, 637 (2020), quoting Commonwealth v. Benoit, 452
Mass. 212, 224 (2008) (improper to exercise peremptory challenge
in response to juror's confusion about word "interest" in
context of having "stake in the case"). See Benoit, supra("juror's slip of the tongue" in her use of term "prosecute"
rather than "convict" did not qualify as race-neutral basis to
exercise peremptory challenge). Nonetheless, lack of
comprehension is a "legitimate reason[] to doubt [a] juror's
suitability to serve." Grier, 490 Mass. at 468.
44
In Grier, 490 Mass. at 467, a juror who had been seated was
discovered, following a criminal record check, to have failed to
disclose several prior arrests and charges when filling out the
questionnaire. After an additional voir dire with the juror on
the next day of jury selection, the judge excused him for cause,
citing "concerns about comprehension and about candor." Id.
Defense counsel objected, as this was the only Black male on the
jury. Id. We held that it was a fair inference that the
failures to disclose could be explained by either a lack of
candor or comprehension, which supported the judge's decision to
excuse him. Id. at 468. This conclusion was bolstered by the
juror's nonresponsive answers to the judge's questions during
the additional voir dire. Id.
Similarly, here, both juror nos. 14 and 65 gave answers
that illustrated their lack of comprehension, despite both of
their seemingly genuine efforts to understand. This did not
appear to be connected to any heightened standard imposed by the
judge as to a juror's intelligence, education, or robust
knowledge of legal vocabulary, but rather appeared to be
connected to the jurors' minimal understanding of the
defendant's right to be presumed innocent and their ability to
follow instructions as given to them by the judge. Contrast
Commonwealth v. Robertson, 480 Mass. 383, 396 n.11 (2018)
(Commonwealth's reason for challenge that "juror did not seem
45
intelligent" was "insufficient in these circumstances" to
overcome other considerations in first step of Batson-Soares
analysis). In such circumstances, we cannot say that the judge
abused his discretion in dismissing them.
Nor can we conclude that the judge's dismissal of the
jurors was a product of implicit bias, where he had legitimate,
comprehension-based reasons to excuse them.25 To the contrary,
at least as to juror no. 14, the judge explicitly acknowledged
her race in making the difficult determination to excuse her.
The judge did not improperly "scrub[] [the jury] . . . of a
group of jurors, representative of a substantial segment of
society, who might have been particularly sensitive to the
racial dynamics at play in the case," and did not treat juror
nos. 14 and 65 differently from non-Black jurors, as alleged by
the defendant. Commonwealth v. Alves, 96 Mass. App. Ct. 540,
548 (2019). The judge excused several non-Black jurors,
including Hispanic and white individuals, who expressed a
failure to comprehend core foundational principles or difficulty
25See Commonwealth v. Sanchez, 485 Mass. 491, 516 n.1
(2020) (Lowy, J., concurring), quoting Commonwealth v. Buckley,
478 Mass. 861, 878 n.4 (2018) ("Multiple studies confirm the
existence of implicit bias, and that implicit bias predicts
real-world behavior. . . . That is, even people who do not
believe themselves to harbor implicit bias may in fact act in
ways that disfavor people of color").
46
with English during voir dire.26 And just as the judge gave
juror nos. 6 and 39, for example, an opportunity to explain and
clarify their answers (partly, as it related to juror no. 6, in
response to defense counsel's confusingly worded questions), he
also gave juror no. 14 numerous opportunities to clarify her
answers, as discussed in detail supra. As to juror no. 65, the
transcript and her answers in the questionnaire convey that she
had a problem understanding the judge's basic questions, without
even getting into the legal principles in the case. See
Williams, 481 Mass. at 457 ("It is the exclusion of prospective
jurors 'solely by virtue of their membership in, or affiliation
with, particular, defined groupings in the community' that
violates a defendant's constitutional right to a fair and
impartial jury, not excusing prospective jurors for cause
because the judge believes, after voir dire, that they cannot be
impartial" [citation omitted]). There was no error here.
c. O'Brien's identification of the defendant. The
defendant argues that the admission of O'Brien's identification
of the defendant as the man depicted in the surveillance video
recording was improper, and that the error was compounded by the
26The selected jury were comprised of nine white jurors,
one Asian juror, two Brazilian-Hispanic jurors, one Black juror,
one juror who did not reveal race, and two for whom the office
of jury commissioner lacked data on their race, but whom counsel
noted to be white.
47
prosecutor's reference to the "distinctive braids" of the person
in the video recording and the judge's identification
instruction. The Commonwealth argues that the judge properly
allowed O'Brien to identify the defendant in the surveillance
footage, that the prosecutor never mentioned the identification
in closing argument and appropriately responded to defense
counsel's closing argument by mentioning the braids, and that
the judge's instruction was proper.
Prior to trial, the defendant filed a motion in limine to
exclude lay opinion testimony regarding the identity of persons
in surveillance video recordings. This motion was denied as to
O'Brien's identification of the persons in the recordings. The
judge wrote:
"I have reviewed the videos in question and find they are
generally of good quality, but neither unmistakably clear
nor hopelessly obscure. The appearances of the defendants
as they will be seen in court are different than the
appearances of the persons in the videos, where hats and
hooded sweatshirts obscure some of the features. One of
the defendants is wearing glasses in court and it is not
clear that the persons in the video are wearing glasses.
Finally, the Trooper's familiarity with the defendants
based on his investigation of this matter is a factor
weighing in favor of the admissibility of such an
identification."
As mentioned supra, over objection, O'Brien identified the
defendant in the surveillance video recording several times
throughout the trial. Because the defendant objected to
O'Brien's identification of the defendant at trial, we review
48
his identification testimony for prejudicial error. Grier, 490
Mass. at 475-476.
As an expression of opinion, identifying a person from a
video image "is admissible only where 'the subject matter to
which the testimony relates cannot be reproduced or described to
the jury precisely as it appeared to the witness at the time.'"
Commonwealth v. Wardsworth, 482 Mass. 454, 475 (2019), quoting
Commonwealth v. Austin, 421 Mass. 357, 366 (1995). The purpose
of such lay witness testimony is to "assist the jurors in making
their own independent identification." Wardsworth, supra,quoting Commonwealth v. Pina, 481 Mass. 413, 429 (2019). "The
general rule is that a witness's opinion concerning the identity
of a person depicted in a surveillance photograph is admissible
if there is some basis for concluding that the witness is more
likely to correctly identify the defendant from the photograph
than is the jury." Pina, supra at 429-430, quoting Commonwealth
v. Vacher, 469 Mass. 425, 441 (2014). In other words, these
identifications are admissible "when the witness possesses
sufficiently relevant familiarity with the defendant that the
jury cannot also possess." Wardsworth, supra, quoting Vacher,
supra. "If the witness lacks such familiarity, it is the
province of the jury to draw their own conclusions regarding the
identity of the person depicted without the witness's
assistance." Wardsworth, supra, quoting Vacher, supra.49
Here, as in Wardsworth, "the jury were able to view the
same surveillance footage that [O'Brien] watched." Wardsworth,
482 Mass. at 475. Although they were not able to see
photographs taken of the defendant the night of the murder, or
the sweatshirt and hat that he presumably was wearing at the
time of the crimes,27 the jury were provided photographs from the
stop at the drive-through that occurred a little over a day
after the crimes and the defendant's booking photographs taken
three days after the crimes. The only indications that the
defendant's appearance changed between the time the video
recording was made and the time of trial were statements from
his counsel and the judge's decision on the motion in limine
that he was wearing glasses at the time of trial. The defendant
was not wearing glasses in the photographs taken close in time
to the crimes that were provided to the jury. Although we
recognize that O'Brien watched the video recordings numerous
times during his investigation of this matter, and that he
interacted with the defendant at the drive-through, he did not
possess "sufficiently relevant familiarity with the defendant
that the jury [could not] also possess." Wardsworth, supra,
27The Commonwealth introduced pants recovered from the
defendant's home, which the prosecutor argued he wore during the
crime.
50
quoting Vacher, 469 Mass. at 441.28 "The jury were capable of
viewing the videotape and drawing their own conclusions
regarding whether the man in the videotape was the defendant
without the assistance of [O'Brien's] testimony." Austin, 421
Mass. at 366. Therefore, the admission of his lay testimony
identifying the defendant in the video recording was error.
This error, however, does not require reversal. We
recognize that there is "increase[d] potential for inappropriate
prejudice to the defendant stemming from identification
testimony from a police officer who is so designated" (citation
omitted). Wardsworth, 482 Mass. at 476. Nonetheless, we also
have determined that no prejudice existed in specific
circumstances where the evidence against the defendant was
strong, where the identification was fleeting, or where the
defendant admitted to being present at the scene. Id. See
Austin, 421 Mass. at 366.
In this case, the defendant did not admit to being at the
scene. Despite this, where there was no indication that the
defendant's appearance at trial markedly differed from his
28Here, O'Brien gained familiarity with the defendant
through his repeated review of the video recording and one brief
interaction with the defendant. We limit our holding to these
facts and express no opinion on whether a police officer could
identify a defendant on a video recording or in a photograph if,
for example, he specifically had surveilled a defendant over a
longer period of time.
51
appearance in the video recording and in photographs taken after
the crime, the jury were "capable of drawing the same
conclusion" as O'Brien.29 Vacher, 469 Mass. at 442. Contrary to
the defendant's assertion, the jury saw the Burlington hotel
video recording before O'Brien identified the defendant as one
of the people in the recording.30 Based on the photographs and
the recording admitted, the jury could have found that the
defendant resembled the individual on the recording. Although
O'Brien mentioned his identification of the defendant in the
recording approximately four or five times throughout his
extensive testimony, no other witness was permitted to identify
the defendant in the recordings. Contrast Wardsworth, 482 Mass.
at 474 (four officers identified defendant in video footage, one
pointing out similarity to defendant's clothing before jury saw
video recording).
Further, although no other witness identified the defendant
at the scene of the crime, the evidence against the defendant
was strong. Aside from the similarity to the man in the video
footage, on the day following the shooting, the defendant was in
29The video footage admitted was "neither '. . .
unmistakably clear or . . . hopelessly obscure.'" Commonwealth
v. Pleas, 49 Mass. App. Ct. 321, 325 (2000), quoting United
States v. Jackman, 48 F.3d 1, 5 (1st Cir. 1995).
30The fact that O'Brien told the jury he watched the Saugus
hotel video footage "dozens and dozens of times" does not alter
our conclusion here, for the reasons stated infra.
52
the distinct car shown in the video recording. The defendant
lied to the officers about his whereabouts at the time of the
crimes. At 12:30 P.M. on July 2, 2015, after several messages
were found on Jeune's cell phone regarding the murder, Jeune
sent a text message to the defendant, "Ima kall u in a min. Its
on da news."31 There were repeated telephone calls between Jeune
and the defendant in the days before, on the day of, and in the
days following the murder. The defendant was acutely aware of
Jeune's new cell phone number after the murder: on June 12, he
gave an individual the 9575 number when asked for Jeune's cell
phone number; on July 3, the day after the murder, he gave that
same individual the 9096 number. There was no outgoing activity
on the defendant's cell phone on July 2 from 12:09 to 12:35
A.M.; the murder happened at approximately 12:20 A.M. The CSLI
placed both the defendant's cell phone and the cell phone with
the 9575 number in Boston before and after the murder. This
evidence, connected with the abundance of evidence against
Jeune, his joint venturer, supports our conclusion. See Vacher,
469 Mass. at 442 ("The testimony, brief and fleeting as it was,
did not overwhelm the other compelling, properly admitted
evidence against the defendant"); Austin, 421 Mass. at 366(admission of identification testimony not reversible error
31A minute later, Jeune sent a text message to "Mama Bear"
that "[t]hey didn't even search the room yet."
53
where, in part, evidence pointing to defendant was
"overwhelming").
Additionally, and most impactful to our determination that
the admission of the testimony was not prejudicial, the judge
gave several forceful instructions regarding O'Brien's
identification of the defendant on the video recording. During
O'Brien's testimony, the judge instructed the jury:
"You've heard some opinion evidence or testimony from this
witness who has identified various people in the videos
that you've seen from several hotels. That evidence, the
opinion evidence was offered for whatever assistance it may
provide to you in your own determinations in this case.
You are not bound to accept that testimony and, indeed, you
must make your own determinations as to what you see in
those security videos. That is your determination and your
determination alone. You may consider the testimony of
Trooper O'Brien regarding the identity of those persons in
the video, along with all of the other evidence, and you
may give it whatever weight, if any, that you deem it is
fairly entitled to receive, but you must remember that you
must decide for yourselves what those security videos show
you." (Emphases added.)
Again, as a part of his instructions to the jury at the
close of evidence, the judge also gave an identification
instruction, reminding the jury that an identification must be
proved beyond a reasonable doubt. He specifically mentioned
O'Brien in this instruction:
"As with any witness, you must determine the credibility of
a witness identifying a defendant as a participant in the
crimes charged. In this case, Trooper Sean O'Brien
provided some identification evidence. If you conclude
that he was not telling the truth regarding the
identification of the persons in the security videos, you
must disregard that testimony. If you conclude that he
54
intended to tell the truth, you must also consider the
possibility that the witness made a good faith error in
identification. That is, you should consider whether the
witness could be honestly mistaken in his identification of
the defendants" (emphasis added).
The judge then went on to discuss why people make mistakes in
identification, listing factors that the jury should consider
when determining whether the identification made by O'Brien was
accurate. He also instructed the jury, "You may consider that
the witness and the persons he identified are of different
races. Research has shown that people of all races may have
greater difficulty in accurately identifying members of a
different race than they do in identifying members of their own
race." See Commonwealth v. Bastaldo, 472 Mass. 16, 18 (2015)
("cross-racial instruction should always be included when giving
the model eyewitness identification instruction, unless the
parties agree that there was no cross-racial identification");
Commonwealth v. Gomes, 470 Mass. 352, 382 (2015) (Appendix),
S.C., 478 Mass. 1025 (2018) (appropriate to add jury instruction
of this nature where witness and offender are of different
races). He finished the identification instruction with more
comments specific to O'Brien's identification:
"In the end, you must determin[e] for yourselves what the
security videos show you. You may give the identification
testimony of Trooper O'Brien whatever weight you deem it is
fairly entitled to receive. If you are not convinced
beyond a reasonable doubt that a person was a person who
committed or who participated in the commission of the
crimes charged, that defendant must be found not guilty.
55
"Now, you heard testimony from Trooper O'Brien who
identified persons that in his opinion were seen in
security videos from several hotels. That evidence was
offered for whatever assistance, if any, that it provided
to you in your determinations in this case. You are not
bound in any way to accept that testimony, and you must
make your own determinations as to what you see in those
security videos. That is your determination and your
determination alone.
"You may consider the testimony of Trooper O'Brien
regarding the persons in the security videos, along with
all of the other evidence, and you may give it whatever
weight, if any, that you deem it is fairly entitled to
receive. But you must remember that you must decide for
yourselves what those security videos show you." (Emphases
added.)
Assuming that the defendant preserved his objection to
these identification instructions, they closely followed the
Model Jury Instructions on Eyewitness Identification, 473 Mass.
1051 (2015). Although O'Brien was not an "eyewitness" present
at the scene of the crime, these instructions were appropriate
where he was a lay witness identifying the defendant as someone
he saw at the scene of the crime (albeit in a video recording of
that scene). Cf. Commonwealth v. Snyder, 475 Mass. 445, 455
n.24 (2016), citing Commonwealth v. Collins, 470 Mass. 255, 265
n.15 (2014), (distinction between identification by eyewitness
at scene of crime and identification by eyewitness who observed
defendant before or after crime); Commonwealth v. Johnson, 470
Mass. 389, 396 (2015) ("Because, here, there was no
identification testimony that significantly incriminated the
56
defendant, the judge did not abuse his discretion in declining
to give the modified identification instruction"); Commonwealth
v. Williams, 58 Mass. App. Ct. 139, 143 (2003) (where eyewitness
police officers identified defendant, "the jury should have been
given the choice to conclude that the police officers had not
lied, but were honestly mistaken in their identifications of the
defendant"). The insistence of the judge, through these
instructions, that the jury must determine the identity of the
men in the video footage on their own commands our conclusion
that the error in admitting this testimony did not prejudice the
defendant. See Commonwealth v. Andrade, 468 Mass. 543, 549
(2014) ("The jury are presumed to follow the judge's
instructions").
The prosecutor's repeated reference to the defendant's
"distinctive braids" in closing argument does not alter our
conclusion. Where the defendant did not object to this aspect
of the prosecutor's closing, we review for a substantial
likelihood of a miscarriage of justice. Commonwealth v. Moffat,
486 Mass. 193, 201 (2020). At the outset, it bears mention that
the defendant's counsel referenced the braids of the individual
in the video recording, although seemingly to suggest that they
mean nothing in the context of the perpetrator being the
defendant. See Commonwealth v. Fernandes, 478 Mass. 725, 741
(2018) (prosecutor entitled to point out weaknesses of
57
defendant's case and reply to defendant's closing argument). In
Commonwealth v. Davis, 487 Mass. 448, 469 (2021), S.C., 491
Mass. 1011 (2023), we recognized that "braided hairstyles are
not uncommon among Black people," and pointed out that even if
there were evidence that the length of the defendant's hair were
similar to that of the perpetrator in the video recording, it
would have fallen short, in that particular case, of evidence
from which the jury could have identified the defendant as the
perpetrator in the recording. Id. at 469 n.26. As a result, we
held that it was improper for the Commonwealth to suggest that
the jury could identify the defendant based on the recording.
Id. at 469.
Here, although the video recordings from the various hotels
were not clear, they were not altogether "[low] enough
resolution [or] taken from too far away to be [un]able to
discern any features of the [defendant's] face," unlike the
video recording in Davis, 487 Mass. at 469. On at least two of
the recordings, a conscientious observer can see that the
individual alleged to be the defendant has a small amount of
facial hair, and the individual's face is visible for a short
period of time, particularly in the Saugus video recording.32 In
each of the recordings, the individual's chin-length, single
32In the booking photographs of the defendant, he has a
small amount of facial hair on his chin and a mustache.
58
braids are visible. This comported with the testimony of the
defendant's former girlfriend, who said that at the time, she
braided the defendant's single, "unattached," chin-length
braids, and the booking photographs of the defendant, which
clearly depict the same style of braids. Further, the
prosecutor did not only focus on the braids of the person in the
video recordings but also pointed out the individual's build and
the "tapered" cargo pants similar to those recovered by police
from the defendant's home. Because the video recordings were of
sufficient quality to discern other features of the individual
depicted, the prosecutor did not err in her repeated references
to the similarity of the braids to those of the defendant.
Finally, in closing argument, the prosecutor never relied
on O'Brien's identification of the defendant in the surveillance
video recordings.33 Rather, the prosecutor implored the jury to
33The closest the prosecutor came to discussing the
identification testimony was:
"You see [the defendant's] build and, yes, you see the
tapered pant leg of the cargo pants described by . . .
O'Brien as what he observed in that videotape. . . .
". . .
"In this case, you also have the benefit of very good video
showing [the defendant] walking through at Saugus, as well
as at Woburn, as well as the [hotel] in Burlington, that
all show his stride in his walk. And I'd ask you to look
carefully at that because it bears out the description
given by . . . O'Brien, as well as the type of pants that
police recovered from his home."
59
compare the photographs in evidence of the defendant with the
individual seen in the video recordings to make their own
identification, paying attention to the defendant's "unique
appearance." This, as well, contributes to our determination
that the defendant was not prejudiced by the improper testimony.
d. Sufficiency of evidence for felony-murder. The
defendant argues that the evidence supporting his conviction of
murder in the first degree was insufficient in the wake of
Commonwealth v. Brown, 477 Mass. 805 (2017), cert. denied, 139
S. Ct. 54 (2018).34 In our review of the denial of a motion for
a required finding of not guilty, "we consider the evidence
introduced at trial in the light most favorable to the
Commonwealth, and determine whether a rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." Oberle, 476 Mass. at 547.
In Brown, a majority of the court held that:
"a defendant who commits an armed robbery as a joint
venturer will be found guilty of murder where a killing was
committed in the course of that robbery if he or she
knowingly participated in the killing with the intent
required to commit it -- that is, with the intent either to
kill, to cause grievous bodily harm, or to do an act which,
in the circumstances known to the defendant, a reasonable
person would have known created a plain and strong
likelihood that death would result" (emphasis added).
34The defendant's trial commenced after this court's
holding in Brown, 477 Mass. 805.
60
Brown, 477 Mass. at 832 (Gants, C.J., concurring). In doing so,
the court limited the scope of felony-murder "to its statutory
role under G. L. c. 265, § 1, as an aggravating element of
murder" where the killing occurs "in the course of a felony
punishable by life imprisonment." Id. at 807. This "eliminated
the theory of proof of criminal intent by constructive malice."
Commonwealth v. Dawson, 490 Mass. 521, 531 (2022).
Where, as in Brown, the predicate felony was attempted
armed robbery, "the Commonwealth also was required to prove that
the defendant knew that one of his accomplices possessed a
firearm." Brown, 477 Mass. at 812. "Knowing participation in a
criminal offense 'may take any of several forms,' and includes
providing 'aid or assistance in committing the crime.'" Id. at
812-813, quoting Commonwealth v. Zanetti, 454 Mass. 449, 470
(2009) (Appendix).
Attempted armed robbery is a proper underlying felony to
support a conviction of murder in the first degree based on a
theory of felony-murder. Commonwealth v. Quiles, 488 Mass. 298,
306 (2021), cert. denied, 142 S. Ct. 1237 (2022). "An attempt
is defined as (1) an intent to commit the underlying crime and
(2) an overt act towards its commission." Id. at 308, quoting
Brown, 477 Mass. at 812 n.5.35
35To support an armed robbery conviction as part of a joint
venture, the Commonwealth must prove "that the defendant was
61
The evidence formed a foundation for the jury to conclude
beyond a reasonable doubt that the defendant, knowing Jeune was
armed with a firearm, went to the Burlington hotel with the
intent to rob Johnson at gunpoint.36 After the defendant
participated in the robbery of Emily, during which he knocked on
her door to gain entry and took her money and belongings while
Jeune held a gun to her head, at least at that point, he would
have been aware that Jeune had a firearm and was prepared to use
it to carry out the robbery of Johnson. Indeed, the jury's
verdict acknowledged as much where the jury convicted the
defendant of murder in the first degree of Johnson, but
acquitted him on unlawful possession of a firearm, home
invasion, and armed assault in a dwelling, and convicted him of
the lesser included offense of unarmed robbery of Emily. "Even
if the defendant had been unaware that [Jeune] possessed a
weapon in advance, it would be reasonable to conclude that he
became aware over the course of the" robbery of Emily, "and
continued to participate" in the attempted robbery of Johnson,
part of a venture in which at least one of the coventurers was
armed with a dangerous weapon, either applied violence to the
victim['s] bod[y] or put [her] in fear, and took the victim['s]
property with the intent to steal it." Commonwealth v. Rakes,
478 Mass. 22, 33 (2017).
36In so holding, we rely on our conclusion that the
evidence was sufficient for the jury to identify the defendant
as the man with the braids.
62
"implicating him in the joint venture." Commonwealth v. Rakes,
478 Mass. 22, 33 (2017). See Commonwealth v. Eagles, 491 Mass.
210, 219 (2023) (defendant's continued participation in robbery
after learning of coventurer's use of weapon, combined with his
failure to render aid to victim, telephone 911, or disassociate
himself from coventurer, demonstrated necessary intent for armed
robbery); Commonwealth v. Phap Buth, 480 Mass. 113, 117, cert.
denied, 139 S. Ct. 607 (2018) ("Where a defendant continues to
act in furtherance of the joint venture even after learning of a
coventurer's weapon, we have allowed an inference that the
coventurer had the requisite intent for the joint venture").
We reject the defendant's contention that the jury could
not have found that he carried out "an act which, in the
circumstances known to the defendant, a reasonable person would
have known created a plain and strong likelihood that death
would result" because there was no evidence that he knew Jeune's
gun was loaded or functional, or that he believed Jeune would
fire the gun.37 Brown, 477 Mass. at 832 (Gants, C.J.,
concurring). "Absent proof that the defendant himself was
armed, proof that he knew his coventurer to be armed suffices to
satisfy the standard" for attempted armed robbery. Rakes, 478
Mass. at 33. "Where an unarmed felon knows that his accomplice
37"The Commonwealth was not required to prove who shot the
victim." Commonwealth v. Housen, 458 Mass. 702, 708 (2011).
63
in a robbery is carrying a gun, even if he believes the gun is
unloaded and his accomplice has no ammunition, that robbery is
inherently dangerous to human life." Commonwealth v. Carter,
396 Mass. 234, 237 (1985). Even if a gun were unloaded, its use
"may provoke violent resistance from the intended victim or may
spur others, such as police officers, to intervene with deadly
force." Id.During the robbery of Emily, while the defendant was in the
room with Emily and Jeune and standing to the left of Jeune,
Jeune said to Emily, "If you scream, believe me, I can scream
louder." From this, the jury could infer that the defendant was
aware that Jeune was willing to discharge the weapon if
necessary to ensure the compliance of their victims.
Notwithstanding this awareness, the defendant continued to
participate in the robbery of Emily, and then the attempted
robbery of Johnson. That Jeune did not fire the gun during the
incident involving Sarah (where they were not able to enter her
room) or the robbery of Emily (where Emily complied with their
demands) does not convince us otherwise. Although we
acknowledge, after Brown, 477 Mass. at 835 (Gants, C.J.,
concurring), that not every killing committed in the course of a
life felony would constitute felony-murder, the defendant's
participation in this case does, because in attempting to rob
Johnson after the robbery of Emily, he committed "an act which,
64
in the circumstances known to the defendant, a reasonable person
would have known created a plain and strong likelihood that
death would result." Id. at 832 (Gants, C.J., concurring).
That the defendant and Jeune did not take Johnson's money
after the shooting also does not alter our conclusion, where it
is the defendant's intent before the shooting, not after, that
is relevant, and where their failure to take the money may have
been attributable to their desire to distance themselves from
the scene of the crime as expeditiously as possible. That
Johnson did not act as submissively as they might have hoped
does not alter their intent on entry to her room. We disagree
with the defendant that the evidence "suggests Jeune did not
intend to shoot Johnson." The loud bang was heard by guests of
the Burlington hotel after they heard a woman yelling for help,
and Johnson was discovered with the telephone cord stretched out
under her body with blood smears by the telephone, suggesting
that Johnson was killed to keep her quiet.
We also reject the defendant's contention that the
defendant could not have anticipated the shooting because "the
robbers targeted sex workers in hotels because they were trying
to avoid resistance, violence, and attention."38 To begin, it
does not inure to the defendant's benefit that he chose victims
38The defendant's trial counsel made a similar argument in
closing.
65
whom he thought were particularly vulnerable. Doing so does not
support an argument that he was at all concerned about harming
the victims. In any event, that the victims were working as
escorts equally could have supported an inference that they
would be armed in preparation for any conflict that might arise
in the course of their work. See Phap Buth, 480 Mass. at 117
n.7 (where defendant argued that victims' characteristics
supported inference that defendant would not expect coventurers
to be armed based on need to overcome victim resistance,
victims' physical characteristics equally supported inference
that they would be armed).
Last, the defendant urges that fundamental principles of
criminal law surrounding proportionality of criminal liability
to moral culpability require a determination that an accomplice
must be subjectively aware that his coventurer's actions create
a plain and strong likelihood of death. "We consistently have
rejected the argument that the felony-murder rule is
unconstitutional, . . . or that it relieves the Commonwealth of
its obligation to prove a defendant's own moral culpability."
Brown, 477 Mass. at 823.39 As we held in Brown, supra: "We
39The cases of Enmund v. Florida, 458 U.S. 782 (1982), and
Tison v. Arizona, 481 U.S. 137 (1987), cited by the defendant in
support, are inapposite. In Enmund, supra at 797, the United
States Supreme Court held that the Eighth Amendment to the
Federal Constitution did not permit the imposition of the death
penalty on a defendant who did not himself kill, attempt to
66
discern no reason . . . to accept the defendant's invitation
that we abolish the felony-murder rule."40
e. Jury instructions. During deliberations, the judge
received a question from the jury regarding his felony-murder
jury instructions. The jury asked whether "intended to do an
act" referred to "attempted armed robbery or the discharge of a
firearm." In the discussions with the judge regarding an
appropriate answer, defense counsel acknowledged that depending
on "[the] circumstance[s] in which an attempted armed robbery is
occurring, [it] may meet third prong malice" for the purposes of
felony-murder under Brown. Nonetheless, he asked that the judge
instruct the jury that "attempted armed robbery cannot be, in
and of itself . . . the intended act described in element 4(c),"
kill, or intend that a killing take place in his commission of a
felony. In so holding, the Court focused on the severity of the
death penalty. Id. In Tison, supra at 154, the Court
determined that there was an "apparent consensus that
substantial participation in a violent felony [in] circumstances
likely to result in the loss of innocent human life may justify
the death penalty even absent an 'intent to kill.'" The Court
held "that major participation in the felony committed, combined
with reckless indifference to human life, is sufficient to
satisfy the Enmund culpability requirement." Id. at 158. As
both Enmund and Tison focused on the imposition of the death
penalty, neither case is pertinent here.
40Therefore, the jury instruction given by the judge on
third prong malice, which the defendant admits tracked the Model
Jury Instructions on Homicide, was accurate.
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and that in this case the "act" would be the discharge of a
firearm.41 The judge's written response to the jury provided:
"You must determine separately for each defendant from the
totality of the circumstances which you find occurred
whether what occurred constitutes an intent to do an act
which in the circumstances known to the defendant a
reasonable person would have known created a plain and
strong likelihood that death would occur."42
The defendant argues that this instruction was insufficient
following Brown, building on his argument that a defendant's
intent to commit an armed robbery alone could not establish a
plain and strong likelihood of death, and that the only
41"Element 4(c)" refers to a portion of the felony-murder
model jury instruction:
"To prove the defendant guilty of felony-murder in the
first degree, the Commonwealth must prove the following
elements beyond a reasonable doubt:
". . .
"4. The defendant:
". . .
"c. intended to do an act which, in the circumstances
known to the defendant, a reasonable person would have
known created a plain and strong likelihood that death
would result."
Model Jury Instructions on Homicide 59-60 (2018).
42After hearing the written instruction, defense counsel
asked whether the judge could include "at the moment of the
discharge of the firearm." The judge declined to do so but
noted counsel's objection.
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intentional act that could have supported his conviction was the
act of shooting Johnson. The defendant's argument is misplaced.
In Brown, contrary to the defendant's contentions, the
court did not hold that an armed robbery could never be the act
supporting a finding of third prong malice. Rather, the court
held that commission of the crime of armed robbery (or attempted
armed robbery), in and of itself, is no longer sufficient to
uphold a conviction of felony-murder; one must look to the
circumstances known to the defendant at the time he committed
such an "act." Brown, 477 Mass. at 832 (Gants, C.J.,
concurring). The court did not define "act" further. Analyzing
Brown, the "act" could be the shooting of a gun. The "act"
could also reasonably be the commission of a dangerous attempted
armed robbery, which a reasonable person would have known
created a plain and strong likelihood that death would occur.
As discussed supra, the evidence supported the jury's conclusion
that the defendant's actions throughout his participation in the
attempts to rob Sarah, Emily, and Johnson supported the malice
prong. There was no error.
The defendant further argues that the judge inappropriately
instructed the jury:
"[A]s a general rule you are permitted but not required to
infer that a person who intentionally uses a dangerous
weapon on another person intends to kill that person or to
cause that person grievous bodily harm or intends to do an
act which in the circumstances known to him a reasonable
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person would know creates a plain and strong likelihood
that death would result."
This instruction comports with the supplemental instructions in
the Model Jury Instructions on Homicide 105 (2018). The
defendant argues that because there was no evidence that the
defendant knew the gun was loaded or that Jeune intended to
shoot Johnson, the inference that the defendant acted with
malice based on his knowledge of Jeune's use of a gun was
impermissible. He relies on Commonwealth v. Colas, 486 Mass.
831 (2021), in making this argument.
In Colas, 486 Mass. at 835, during a confrontation between
two groups, the defendant raised his hand and pointed a gun
toward another man. In response, that man fired four or five
shots at the defendant, striking two bystanders, one of whom was
killed. Id. In the unique circumstances of Colas, the court
held that the defendant's pointing of a gun at the man who fired
his gun in return did not support the jury instruction mentioned
supra, because it was not "a typical case involving someone
alleged to have shot, stabbed, or clubbed a victim." Id. at
843. Colas is not helpful to the defendant because the evidence
suggested, as discussed supra, that Johnson was shot
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intentionally as part of the joint venture. This instruction
was given properly to the jury.43
f. Closing argument. The defendant takes issue with the
prosecutor's pattern in closing argument of referencing items
that were used in the crimes as used and possessed by both
coventurers. He points to the following sentences in the
Commonwealth's closing argument:
"They came with a firearm, a weapon. They had ammunition
for that weapon. . . .
"They had a cell phone, . . . that had no subscriber. . . .
They had a smart phone, the Alcatel, that was found in
. . . Jeune's car. . . .
"They also had a car, a Toyota Camry, . . . with a
different color front passenger side quarter panel, a
missing rear hubcap, a different color gas door opener, and
a sunroof. . . .
"[T]hey had ammunition for a handgun, .380 caliber class
ammunition, consistent with the bullet that killed . . .
Johnson, that was found in the backseat of a Jeep in the
driveway at . . . Jeune's house."
Where the defendant objected to the prosecutor's repeated use of
the word "they" at trial, we review for prejudicial error.
Commonwealth v. Durand, 475 Mass. 657, 670 (2016), cert. denied,
583 U.S. 896 (2017).
43In the absence of any evidence that the murder of Johnson
was an accident, the defendant was not entitled to an
instruction on accident. See Commonwealth v. Podkowka, 445
Mass. 692, 699 (2006) ("Where there is no evidence of accident,
the issue is not fairly raised and the judge need not give an
accident instruction").
71
"Under our case law, '[w]hile prosecutors are entitled to
argue "forcefully for the defendant's conviction," closing
arguments must be limited to facts in evidence and the fair
inferences that may be drawn from those facts.'" Commonwealth
v. Alvarez, 480 Mass. 299, 305 (2018), quoting Commonwealth v.
Rutherford, 476 Mass. 639, 643 (2017). We examine all the
statements challenged by the defendant "in the context of the
entire closing, the jury instructions, and the evidence
introduced at trial." Commonwealth v. Kapaia, 490 Mass. 787,
801 (2022), quoting Commonwealth v. Cheng Sun, 490 Mass. 196,
217 (2022). "Although 'counsel may argue the evidence and the
fair inferences which can be drawn from the evidence,' . . . 'a
prosecutor should not . . . misstate the evidence or refer to
facts not in evidence.'" Kapaia, supra at 804, quoting Cheng
Sun, supra at 221.
There was no error in the Commonwealth's use of the word
"they" in the above statements. The evidence demonstrated that
as the defendant and Jeune carried out their scheme, they used a
firearm to subdue their victims. That firearm evidently
contained ammunition with which they shot Johnson, and the class
of ammunition found in Jeune's Jeep could have been used to kill
Johnson. Although the statement about the ammunition in Jeune's
Jeep is a close call, we think the evidence supported the
prosecutor's statement. It is irrelevant that there was no
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specific evidence that the firearm used during the joint venture
was in the hands of the defendant. As the two men used a
firearm to further the joint venture, the prosecutor's
statements were accurate. Similarly, the cell phone with no
identified subscriber was used to contact the victims, and the
Alcatel number was used to visit Backpage and communicate with
the defendant's cell phone about the crime. The Camry was used
to drive the defendant and Jeune to each of the crime scenes.
There need not be evidence regarding the defendant's personal
use of these devices and the Camry to attribute the items to him
throughout the joint venture. "Acts of a joint venturer
amounting to consciousness of guilt may be attributed to another
joint venturer if the acts occurred during the course of a joint
venture and in furtherance of it." Wardsworth, 482 Mass. at 463
n.16, quoting Commonwealth v. Mahoney, 405 Mass. 326, 330-331
(1989). See Commonwealth v. Braley, 449 Mass. 316, 321-322
(2007) (actions of joint venturer in disposing of his rifle,
fleeing, and painting his truck attributable to defendant
because they were done in furtherance of continuing joint
venture).
Even if we did hold that the statements were error, any
error did not prejudice the defendant. These statements were
spread out over a span of eight pages of transcript in a closing
argument that spanned over thirty pages. Additionally, the
73
judge instructed the jury that closing arguments are not
evidence on two separate occasions and explained that he did not
allow the jurors to have their notebooks during closing
arguments for that reason. See Commonwealth v. Lester, 486
Mass. 239, 249 (2020) (judge's instructions that closing
arguments not evidence mitigated error where misstatements were
thirteen words of thirty-three page argument).
g. Review under G. L. c. 278, § 33E. Finally, we have
reviewed the entire record of this case pursuant to G. L.
c. 278, § 33E, including but not limited to the remainder of the
issues in the defendant's motions to suppress, the admission of
the Saugus video recording and Sarah's testimony, the
defendant's past gun possession as a prior bad act, and the
judge's admission of the grand jury testimony of the defendant's
former girlfriend where the judge found she was feigning memory
loss. We conclude that there is no reason to reduce the
defendant's sentence on his conviction of murder or to order a
new trial.
This is not a case such as Brown, 477 Mass. at 824, where
the defendant was involved in the "remote outer fringes" of the
attempted armed robbery, robbery, and murder. The defendant
went to three different hotels in what the evidence showed to be
a planned effort to rob escorts at gunpoint with Jeune. It does
not move us that Emily testified that the man who did not have
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the gun was "empathetic" to her. As Jeune kept the gun trained
on Emily, the defendant ransacked her room, grabbing her money,
wallet, and marijuana, continuing after Jeune threatened to hurt
Emily if she did not keep quiet. After the defendant
participated in this violent encounter, he went to the
Burlington hotel to do it again, and he was present when the
shot was fired that killed Johnson. After Johnson was killed,
he fled the hotel with Jeune and quickly left in the Camry. See
Commonwealth v. Tillis, 486 Mass. 497, 509 (2020) (defendant
played central role where he identified drug dealer to target,
coordinated with accomplice, planned robbery, and entered
apartment building with knife, despite disparity in sentence for
more culpable accomplice).
Judgments affirmed.