Commonwealth v. Mitchell , 89 Mass. App. Ct. 13 ( 2016 )

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12-P-719 Appeals Court
COMMONWEALTH vs. MARKEESE MITCHELL (and two companion cases1).
No. 12-P-719.
Suffolk. September 10, 2015. - January 28, 2016.
Present: Green, Rubin, & Hanlon, JJ.
Homicide. Practice, Criminal, Motion to suppress, Admissions
and confessions, Voluntariness of statement, Sentence,
Severance, Confrontation of witnesses, Argument by
prosecutor, Instructions to jury. Evidence, Voluntariness
of statement, Statement of codefendant, Verbal
completeness, Relevancy and materiality, Knife, Bias.
Constitutional Law, Admissions and confessions,
Voluntariness of statement, Sentence, Confrontation of
witnesses.
Indictments found and returned in the Superior Court
Department on April 18, 2008.
Pretrial motions to suppress evidence and to sever were
heard by Charles J. Hely, J.; the cases were tried before Judith
Fabricant, J., and a motion for a postconviction evidentiary
hearing, filed on December 3, 2012, was heard by her.
Richard L. Goldman for Terrance Pabon.
Richard B. Klibaner for Pedro Ortiz.
Jeanne M. Kempthorne for Markeese Mitchell.
Amanda Teo, Assistant District Attorney (Mark A. Hallal,
1
One against Terrance Pabon and one against Pedro Ortiz.
2
Assistant District Attorney, with her) for the Commonwealth.
HANLON, J. After a jury trial, the defendants, Markeese
Mitchell, Terrance Pabon, and Pedro Ortiz were convicted of
murder in the second degree in connection with the stabbing
death of Terrance Jacobs. Paul Goode also was indicted, tried
with the defendants, and convicted of murder in the second
degree. Goode's direct appeal originally was consolidated with
the others; however, by motion and pursuant to an order of this
court, Goode's appeal was severed. Goode's statement to the
police was admitted at trial and is the predicate for one of the
defendants' common claims of error, under Bruton v. United
States, 391 U.S. 123, 135-137 (1968). Pabon and Mitchell claim
error in the denial of their respective motions to suppress
their statements to the police. They also contend that, because
they were between the ages of fourteen and seventeen when the
crime occurred, they ought to have been afforded individualized
sentencing, in light of Miller v. Alabama, 132 S. Ct. 2455(2012), and Diatchenko v. District Attorney for the Suffolk
Dist., 466 Mass. 655 (2013). In addition, some or all of the
defendants claim error in the admission of Pabon's statement to
the police; certain evidentiary rulings at trial; certain
remarks made by the prosecutor in closing argument; the denial
of their request for a jury instruction on withdrawal from a
3
joint venture; and the denial of their postconviction motion for
permission to inquire of a juror who, they alleged, had reasons
to be biased against them.
We have examined each of their contentions and conclude
there was no error. We therefore affirm the judgments and the
order of the judge denying the postconviction motion.
Background. The jury could have found the following facts.2
On May 22, 2007, sixteen year old Terrance Jacobs was beaten and
stabbed to death in the Mattapan section of Boston. Four months
earlier, Jacobs had been charged with slashing the face of one
Jaleek Leary outside a local skating rink called "Chez Vous."
Leary was fourteen years old and the defendants were among his
friends and relatives.
On the afternoon of May 22, 2007, Pabon, Mitchell, and
Ortiz were in the area of 10 Wilcock Street in Mattapan,
drinking and smoking. A number of other individuals were
present, including the codefendant Goode and one Dedrick Cole,
who testified at the trial. At 7:00 P.M., Richard Allen and
Orlando Waters arrived and approached the group. Waters
indicated that he was part of a local gang ("M.O.B."). Ortiz
responded that someone from M.O.B. had slashed the face of his
cousin, Jaleek Leary. Ortiz sought "a fair one" -- i.e., a one-
2
We reserve a more detailed description of the facts for
discussion of the relevant issues.
4
on-one fistfight without weapons -- in response to that attack.
Waters said that he was amenable; he returned to his vehicle and
drove away. Allen remained on the scene. Ortiz then informed
Cole that either Pabon or Emmanuel DeJesus ("Pudge") would fight
the "kid" (i.e., Jacobs) who had cut Leary.
Approximately thirty minutes later, at about 7:30 P.M., and
while it was still daylight, Waters returned to Wilcock Street,
accompanied by two males. Cole recognized one of the two males
as a "guy I knew as Justice." After exchanging brief words with
Allen, Waters left the scene, only to return with a larger
group; among them was the victim, a boy whom Cole had known as
"Terra."
When the two groups faced off, Ortiz asked Waters if the
fight was "on." Ortiz pointed to Pudge as the fighter for the
Wilcock Street group. Pudge was just under six feet tall and
muscular, weighing about 210 pounds. The victim voiced some
qualms about fighting Pudge. The victim was slightly built, no
more than 150 pounds, and at least four inches shorter than his
opponent. While the victim continued to express his misgivings
about having to fight, Waters forcibly pushed him toward Pudge,
sparking a brawl among all present. Ortiz, Pabon, and Mitchell
struck the victim in the face with their fists. Waters and two
associates initially joined the scrum but then backed off, but
5
not before one man took out a handgun and fired three or four
shots toward the crowd, prompting those assembled to flee.
The victim managed to gather himself and then ran on foot
into oncoming traffic on Blue Hill Avenue. Pabon chased after
him and stabbed him in the back more than once, using a knife.
Mitchell, Ortiz, and Goode followed in pursuit. They all turned
onto Havelock Street,3 where the chase was recorded by two
surveillance cameras mounted on an establishment known as Kay's
Oasis, at the corner of Havelock Street and Blue Hill Avenue.
All of the defendants were identified in the surveillance
footage, which showed them running (or, in Mitchell's case,
riding a bicycle) to and from the area where the victim was
found lying face down, bleeding profusely.4 There was testimony
that Mitchell stabbed the victim and then walked away "wiping
the blood on a pole." Another witness testified that Mitchell,
Ortiz, and Pabon all stabbed the victim. Still another witness
testified that "[t]he person that was on the bike was ramming
their bike into the person on the ground," while another person
was "making a jabbing motion with [his] right hand . . . [a]nd
3
Wilcock Street and Havelock Street are one-way parallel
streets, lying side by side off Blue Hill Avenue, which is a
main thoroughfare in Mattapan and Dorchester.
4
The surveillance cameras did not capture what happened at
the location where the victim was found lying on the ground.
However, he had sustained at least nineteen stab wounds.
6
also kicking" the victim, in the "abdomen area . . . , chest,
back, stomach area."
At about 8:00 P.M., a Boston police detective came to the
scene in an unmarked vehicle; he had been alerted about the
street brawl by a concerned citizen. Within a minute or two,
Boston emergency medical technicians arrived, attended to the
victim, and transported him to a local hospital, where he was
pronounced dead. The murder weapons were not recovered.
On June 19, 2007, two Boston police detectives, in plain
clothes, interviewed Pabon at his Avondale Street home, in the
presence of his mother. Pabon's interview was recorded and
admitted at trial, over the codefendants' objections. Eight
days later, on June 27, the same detectives interviewed
Mitchell, with his father and grandfather present, at the home
of his grandfather in Brockton. Mitchell made a statement to
police but declined to have a recording made.
Pabon and Mitchell filed separate motions to suppress their
statements to the police. A motion judge, who was not the trial
judge, denied both motions with careful findings of fact and
rulings. The motion judge also heard the defendants' motions to
sever each of their respective cases for trial; the requests
were based upon what the defendants perceived to be a Bruton
issue stemming from the Commonwealth's expected use, at the
joint trial, of a statement that Goode had made to the police.
7
The judge denied the severance requests and ordered that Goode's
police statement be redacted to exclude any reference to any
codefendant by name. The Commonwealth did so.
Analysis. 1. Motions to suppress. Reviewing the denial
of a motion to suppress, we must accept the motion judge's
findings of fact, which shall not be disturbed absent clear
error. Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011). We
review de novo the judge's application of the law to the facts
found. Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
Questions as to the credibility of a witness are matters for the
judge to decide. Commonwealth v. Tremblay, supra.a. Mitchell's statement. The motion judge found the
following facts. On June 27, 2007, Mitchell's grandfather,
Timothy Johnson, returned a telephone call from a Boston police
detective and agreed that the police would interview Mitchell at
Johnson's home in Brockton. That same day, at about 9:05 P.M.,
Detectives Paul McLaughlin and Michael Devane arrived at
Johnson's home in plain clothes and met with Johnson, Mitchell,
and Mitchell's father, Humberto Hernandez. Mitchell was sixteen
years old. The detectives told the three that, if they felt
uncomfortable at all, they could end the conversation at any
time and the detectives would leave. Johnson asked the
detectives to sit at a kitchen table for the interview. When
Mitchell joined them, the detectives told him that they were
8
from the Boston Police Homicide Unit and assigned to the
investigation of the victim's murder. Mitchell, Johnson, and
Hernandez agreed to go forward with the interview.
Mitchell denied any knowledge of the incident and stated
that he did not recall seeing anyone get stabbed. McLaughlin
then asked to speak with Johnson and Hernandez separately, in an
adjacent room, and he showed the two men photographs of Mitchell
on a bicycle and on foot at the crime scene. McLaughlin
indicated that Mitchell was not telling the truth about the
incident. In the interim, nothing of substance was said between
Devane and Mitchell at the kitchen table. The detectives then
asked if they could make a sound recording of the remainder of
the interview. Johnson, Hernandez, and Mitchell all declined.
The detectives informed Mitchell that they knew he was at
least a witness to the stabbing, and they showed him a
surveillance photograph depicting a young man in a red shirt on
a bicycle; Mitchell admitted that he was the boy on the bicycle.
Presented with a second photograph, Mitchell admitted that he
was the boy in the image depicted running next to another male
on a bicycle. Those photographs were taken just minutes before
the victim was stabbed while he was lying close by on the
sidewalk. Mitchell also confirmed that he was the boy in a red
shirt seen running in two other photos. Mitchell said he could
not identify anyone else in those photographs.
9
When the detectives showed Mitchell other surveillance
photographs, he identified a "black/Hispanic" male in a green
tank top as "Terrance," and said he did not know Terrance's last
name. In another photo, Mitchell identified a similar male in a
striped shirt as Terrance. The detectives determined that this
male was Terrance Pabon.
In response to McLaughlin's observation that the
surveillance video showed Mitchell running directly to the spot
where the stabbing took place, Mitchell stated, "I just remember
kids running." He added, "I kept running" and "I didn't see
anything." Mitchell stated that he ran through a nearby yard to
reach Wilcock Street. He denied taking a knife from one of the
attackers and wiping the blade on an object. The detectives
told Mitchell and his father and grandfather that Mitchell was
not being honest about the incident and that they might need to
talk with him again. The interview ended and the detectives
left the home at 10:25 P.M.; Mitchell was not arrested until
March, 2008.
In a supplemental brief, Mitchell argues that the motion
judge's finding that his statement was voluntary was erroneous,
given the "totality of the circumstances, including his age,
mental, psychological, and educational deficits, and other
factors." He also argues that the motion judge did not take
into account his age in determining that he was not in custody
10
during the meeting with police and that, as a result, Miranda
warnings should have been given to him and his father and
grandfather.
We disagree, essentially for the reasons well explained and
supported by the motion judge.5 We are satisfied that Mitchell's
statement to the police was not a product of a custodial police
interrogation and that, as a result, no Miranda warning was
required. Miranda v. Arizona, 384 U.S. 436, 444 (1966). See
Commonwealth v. Bermudez, 83 Mass. App. Ct. 46, 51-53 (2012).
See also Commonwealth v. Libby, 472 Mass. 37, 47 (2015) ("Given
5
The judge noted, inter alia, that the detectives did not
appear at the grandfather's home by surprise; they had made an
appointment, giving the defendant time to consult with two
interested adults before the interview began. The judge
indicated his awareness of the defendant's limitations,
including a diagnosis of attention deficit hyperactivity
disorder, participation in special education classes, and a
history of substance abuse. However, despite the testimony of
Dr. Fabian Saleh, a forensic psychiatrist called by the
defendant, "that he seriously doubted whether the defendant had
a clear understanding that he could voluntarily refuse to be
interviewed," the judge specifically found "that the defendant's
version of the police interview in Dr. Saleh's report [was] not
reliable or credible." In particular, the interview with Dr.
Saleh took place "more than a year after the defendant was
arrested and indicted and more than two years after the police
interview . . . at [a time when] the defendant had a powerful
incentive to make his police interview sound involuntary." The
judge noted that, "[w]hen the detectives asked to record the
interview, the defendant asserted himself and refused. The
detectives honored his refusal." Finally, throughout the
interview, the "defendant continued to insist that he was not
involved and that he did not see the attack. The defendant made
his statements not because of any lack of understanding or lack
of voluntariness but because he wanted to deny being involved in
the attack. . . . The defendant's will was not overborne."
11
our conclusion that the defendant was not in custody . . . , his
interview . . . was simply not governed by Miranda"). In
addition, the motion judge correctly ruled that Mitchell's
statement was made voluntarily, without coercion by the police.
See Commonwealth v. Tremblay, 460 Mass. at 207. See also
Commonwealth v. Sheriff, 425 Mass. 186, 192 (1997).
b. Pabon's statement. In brief, the motion judge found
the following facts as to Pabon's statement to police following
his arrest on March 1, 2008. That morning at 7:20 A.M., Boston
police officers arrested Pabon and transported him to police
headquarters. McLaughlin and Devane met with Pabon in an
interview room. At the outset, the detectives gave Pabon a
coffee and offered him an opportunity to make a telephone call.
Pabon deferred, indicating that he would wait to hear what the
detectives had to say. The detectives explained the process of
electronically recording an interview; Pabon agreed to talk with
the police, but he declined to have his statement recorded and
signed a form confirming that choice. McLaughlin then read
Pabon the complete Miranda warnings, showing him the police
department's warning and waiver form. After reading each
warning, McLaughlin asked Pabon if he understood. Pabon said he
did, and initialed each warning. Pabon was then eighteen years
old. He was alert and responsive to the detectives' questions.
12
Pabon reiterated that he had been truthful when he gave the
police an earlier statement at his home on June 19, 2007, with
his mother present, and he maintained that the stabbing of his
cousin, Jaleek Leary, had nothing to do with the events in
question. The detectives explained that there were different
degrees of the crime of murder and that they were interested in
where this particular case "fell in that spectrum" of possible
criminal offenses. They urged Pabon to be honest.
Pabon stated there were "a lot of people out on the street"
on May 22; he mentioned some of the individuals who were present
and denied witnessing the stabbing. Pabon further denied that
there had been a plan to fight the victim. Presented with the
surveillance video, Pabon stated it had been "stupid" for Jacobs
to go down to Wilcock Street. At 8:25 A.M., Pabon was allowed
to use the restroom. He drank Vitamin Water, obtained from a
vending machine. The detectives gave Pabon a snack. Pabon made
two telephone calls using his cellular telephone. His initial
call lost its connection; Pabon then spoke for several minutes
during his second telephone call.
When the interview resumed, the detectives showed Pabon
still images from the surveillance video. When the police
informed Pabon that they knew that the male in the video seen
wearing a green tank top and, later, a white polo shirt was him,
Pabon confirmed it was true. The detectives indicated to Pabon
13
that the photographs showed him as the first person to come upon
the victim on the sidewalk on Havelock Street. Pabon asked,
"[W]here's K-EZ?"6 The detectives said they knew where K-EZ was
but did not elaborate. Pabon then asked for an explanation of
the different degrees of murder. The detectives complied.
Pabon stated, "So I can't get manslaughter." Devane described
the theory behind joint venture by analogizing the concept to a
sports example (i.e., players of a football team all acting
toward a common aim or purpose).
At 8:57 A.M., Pabon stated that he would tell what really
happened on May 22. He indicated that he needed a cigarette,
and the police obtained one for him. Pabon asked the
detectives, "[H]ow did you track me?" This was followed up by
some questions as to who did what during the incident. Pabon
denied that he had ever put his hands on the victim. He denied
stabbing anyone. He did admit to having lied in the earlier
interview at his home and in the initial part of this
stationhouse interview. One detective reminded Pabon that
anything he said could be used against him, including
falsehoods. Pabon reiterated his desire to tell the truth but
refused to have the remainder of the interview recorded. He
indicated that he was too nervous to make a written statement.
Pabon recounted that he and the victim got into a fistfight on
6
Mitchell's nickname was "K-EZ."
14
Havelock Street. On an aerial photograph of the crime scene,
Pabon pointed to the spot where the fistfight had occurred,
identifying the sidewalk of Havelock Street, opposite Kay's
Oasis. This was the area where the victim was found lying
facedown with multiple stab wounds. Pabon said that he ran
behind the victim, but had not been chasing him. The victim hit
him in the face with a "good" punch, Pabon recalled, prompting
Pabon to "just quit." Pabon insisted he did not have a weapon
at the time. He denied stabbing the victim. The interview
ended at 10:00 A.M. (a span of some two hours and ten minutes).
Pabon argues that "the police inaccurately described the
law of murder and joint venture during the interrogation," and
that "their statements of the law coerced Pabon to speak, and to
believe that he could not 'get manslaughter.'" Not only does
Pabon fail to show how the detectives' admittedly colloquial
football team analogy was inaccurate or misleading but, also,
the cases he cites -- Lynumn v. Illinois, 372 U.S. 528 (1963),7
and Commonwealth v. Novo, 442 Mass. 262 (2004)8 -- are readily
7
In Lynumn, a police officer told the defendant that, if
she did not cooperate, she "could get 10 years and the children
could be taken away, and after [she] got out they would be taken
away and strangers would have them, . . . and [she] had better
do what they told [her] if [she] wanted to see [her] kids
again." 372 U.S. at 531.
8
In Novo, "[a]lthough the officers used a variety of
interrogation techniques, one that emerged approximately ninety
minutes into the interview was that this would be Novo's 'only
15
distinguishable and simply do not support his claim of error.
Again, in a thoughtful memorandum, the motion judge ruled that
Pabon's statements had been made voluntarily and that he had
made a knowing, intelligent, and voluntary waiver of his Miranda
rights. The judge rightly concluded that the detectives'
explanations respecting the different offenses of murder and
manslaughter and the different degrees of murder, as well as
their comments about the evidence, neither undermined Pabon's
Miranda waiver nor amounted to coercion so as to render the
statement involuntary as matter of law. We agree and conclude
that the judge correctly denied Pabon's motion to suppress the
statement he gave while in custody.
2. Youthful offender. Mitchell, who was sixteen years old
at the time the victim was killed, was tried and sentenced as an
adult in Superior Court. Like the defendant in Commonwealth v.
Okoro, 471 Mass. 51 (2015), he argues that the youthful offender
transfer scheme and statutory sentencing provisions are
opportunity' to offer an explanation for why he hit [the
victim]. Once introduced, this now-or-never theme persisted up
to and through Novo's confession. Soon after it was introduced,
[the police officer] explicitly linked it to Novo's rights to
testify and to present a defense when he told Novo, 'If you
don't give us a reason, Roy, if you don't give us a reason right
now why you did this, a jury's never going to hear a reason.'
Thereafter, [the officer] repeatedly conveyed the message that,
unless Novo offered a reason for injuring [the victim] during
the interview, he would not be able to offer any reason to a
jury at a subsequent criminal case." 442 Mass. at 267-268.
16
unconstitutional as applied to him.9 In his appellate brief,
Mitchell relies upon, inter alia, Miller v. Alabama, 132 S. Ct.
2455 (2012), and Diatchenko v. District Attorney for the Suffolk
Dist., 466 Mass. 655 (2013), for the proposition that the
statutory scheme is unconstitutional in particular because it
does not differentiate juvenile homicide offenders from adult
homicide offenders for purposes of sentencing.10 His argument is
foreclosed at the outset by his failure to raise it below.
However, even had he done so, his argument would fail in light
of the court's holding in Okoro. Okoro, which was released
after the briefs were filed in this appeal, addressed Mitchell's
argument precisely and rejected it. While acknowledging that
"certain language in Miller can be read to suggest that
individualized sentencing is required whenever juvenile homicide
offenders [face] a sentence of life in prison," 471 Mass. at 56,
the court nonetheless squarely held that the sentence of life
9
Pabon joins in Mitchell's argument. Pabon was seventeen
years old at the time of the murder in 2007. In 2010, at the
time of trial, the various statutes concerned with the trial and
sentencing of juveniles applied only to children who were under
the age of seventeen at the time of the offense. See
Commonwealth v. Okoro, 471 Mass. at 55 n.4.
10
Both Mitchell and Pabon were sentenced to life in prison
with a possibility of parole after fifteen years. See Okoro,
471 Mass. at 55 n.4. As to Pabon's complaint with respect to
his sentence, see ibid., discussing the various amendments to
the sentencing laws and their effect on persons aged seventeen
or eighteen years old at the time of the offense. See also
Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass.
at 661-667, holding that Miller will be applied retroactively.
17
imprisonment mandated by the Legislature under G. L. c. 265,
§ 2, and G. L. c. 119, § 72B, for a juvenile offender convicted
of the crime of murder in the second degree does not violate
either the Eighth Amendment to the United States Constitution or
art. 26 of the Massachusetts Declaration of Rights.11 Okoro, 471
Mass. at 58.
3. Admission of Goode's redacted statement. Goode's
statement to the police was redacted to exclude any reference to
his co-defendants in order for it to be used against him in the
joint trial. Both at the time the redacted statement was
admitted and in the final charge, the judge instructed the jury
that Goode's statement must be considered solely as evidence in
the case against him, and not against his codefendants.
a. Bruton. In line with their objections raised during
the trial, Mitchell, Pabon, and Ortiz now contend that the
admission of Goode's redacted statement is at odds with the
teaching of Bruton v. United States, 391 U.S. 123, 137 (1968).12
11
Mitchell's counsel agreed at oral argument that the
teaching of Okoro is controlling here.
12
Mitchell objects specifically to Goode's statement (as
recounted by Detective McLaughlin) that "he himself never shot
or stabbed anyone, but that two people stabbed the victim. All
the while, Goode was trying to stop them." Mitchell also
challenges Goode's statement that "[t]hat dude wasn't supposed
to die."
Pabon objects to the admission of Goode's statement
indicating that "'someone' had problems stemming from a beating
18
Bruton held that the admission, at a joint trial, of a non-
testifying codefendant's earlier statement, naming and directly
incriminating another defendant, violates a defendant's right to
confront his accusers under the Sixth Amendment to the United
States Constitution. See Gray v. Maryland, 523 U.S. 185, 196-
197 (1998); Commonwealth v. James, 424 Mass. 770, 782 (1997);
Commonwealth v. Vasquez, 462 Mass. 827, 841 (2012); Commonwealth
v. Rivera, 464 Mass. 56, 69 (2013). In the defendants' view,
their cases ought to have been severed. We review the denial of
a motion for severance for an abuse of discretion. Commonwealth
v. Rivera, supra at 71.
Here, there was no Bruton violation because Goode's
redacted statement did not name expressly, implicate, or
obviously refer to the codefendants so as to be "facially"
that 'that person' took at the Woodrow Wilson School[; and]
. . . at the very beginning of the incident . . . [the victim]
and 'someone else' had squared off and were 'ready to go' in a
fight." In Pabon's view, his own statement (that he had
suffered a beating sometime earlier at the Woodrow Wilson
School; that he had gone "toe-to-toe" with the victim in a fair
fight, and that he had chased the victim), combined with Goode's
redacted statement, "clearly inculpated Pabon as both . . . the
person [with the problem] at the Woodrow Wilson School and . . .
the person who initially squared off to fight the victim."
Ortiz's objection relates to what he perceives as the
unfair sanitizing of Goode's statement, leaving Ortiz as a
possible offender, once Mitchell's and Pabon's names were
redacted. He also objects to the fact that a portion of Goode's
statement actually exculpated Ortiz but was excluded as hearsay
("[The detective] asked him about Pedro's involvement and he
stated, 'Pedro didn't stab him. I didn't see "P" [Pedro] hit
the kid'"). We address that argument infra.
19
incriminating. Gray v. Maryland, 523 U.S. at 196-197. Nor were
any of the three defendants necessarily inculpated by inference
from the Goode statement itself, particularly given the
admittedly large number of individuals present on Wilcock and
Havelock Streets that evening. See Commonwealth v. Vasquez, 462
Mass. at 843-844, and cases cited ("There were six participants
in the killing, and [the codefendant's] use of the phrase 'other
members' does not necessarily encompass everyone else [including
(the defendant)], as for instance the phrase 'all the other
members' might connote. . . . The phrase 'other members'
signifies only some other members, without specifying who or how
many. Unlike Bruton and Gray, where there were only two
perpetrators and it was immediately apparent to the jury that
the codefendant's confession, redacted or not, referred directly
to the defendant [Bruton and Gray, respectively], [the
codefendant's] statement cannot be understood to refer directly
to [the defendant]. [The codefendant's] statement alone does
not support an inference that [the codefendant] was referring to
[the defendant]. Other evidence was required to link [the
defendant] to the crime, and it did"). Contrast Commonwealth v.
Bacigalupo, 455 Mass. 485, 493 (2009) (where the witness
recounting the codefendant's confession referred to the
defendant as the codefendant's "friend," the court concluded
that the reference to the "'friend' suggested to the jury that
20
[the codefendant] was referring to the defendant. This
implication was strengthened by the fact that only two people
were on trial for the shootings that [the codefendant] said were
committed by himself and a 'friend.'").
This case is easily distinguished from Bacigalupo. Here,
the redacted statement could be considered incriminating, if at
all, only when taken in context with other evidence admitted at
the joint trial. The law is clear that "inferential
incrimination can be properly cured by a limiting instruction,"
which the trial judge timely and forcefully delivered here.
Rivera, 464 Mass. at 70. We see no error.
b. Verbal completeness. Nor was there a violation of the
common-law rule of verbal completeness, as the defendants have
argued.13 For other portions of a redacted statement to be
admissible under the rule of verbal completeness, the additional
text must be "(1) on the same subject as the admitted statement;
(2) part of the same conversation as the admitted statement; and
(3) necessary to the understanding of the admitted statement"
(emphasis omitted). Commonwealth v. Clark, 432 Mass. 1, 14
(2000).
13
It is not clear precisely what Pabon's argument on verbal
completeness entails as his brief merely adopts Ortiz's argument
-- which was, on this issue, only that Goode's statement
exculpating Ortiz was wrongly redacted.
21
In this case, Goode's statement was redacted to remove not
only the names of those Goode inculpated, but also that portion
of Goode's statement exculpating Ortiz (see note 12, supra).
This presents an unusual circumstance. Although the statement
was admitted only against Goode, it is not just the affirmative
statement but the implication of the redaction of the
exculpatory portion that, Ortiz argues, left the impression that
Ortiz might have been one of the people Goode implicated when in
fact Goode did not do so. And, although it is true that the
portion of the statement exculpating Ortiz was hearsay -- and no
part of the statement would have been admitted had Ortiz been
tried alone -- the admission of the inculpatory portion without
the admission of the exculpatory portion, Ortiz argues, created
in this case the misimpression that Goode might have inculpated
Ortiz.
Nonetheless, even assuming what we do not decide -- that,
when combined with the required redactions of the names of those
inculpated, the redaction of the portion of Goode's statement
exculpating Ortiz violated the doctrine of verbal completeness
or was otherwise unfair to Ortiz -- we think any error was cured
by the judge's forceful and repeated instructions that a
statement by any of the defendants was to be considered only
with respect to that defendant, not with respect to any of the
other defendants. In Commonwealth v. Keevan, 400 Mass. 557, 570
22
(1987), the Supreme Judicial Court held that "absent any direct
inculpation, an appropriate instruction is sufficient to obviate
Bruton concerns," and we think the same is true with respect to
the type of error claimed here.
4. Admission of Pabon's redacted statement to police.
Based on Bruton and the verbal completeness rule, Ortiz and
Mitchell also assert error in the admission of Pabon's taped
(albeit redacted) statement to the police at his home on June
19, 2007. Mitchell argues that Pabon's comment ("Markeese
wasn't with us"), which was excised from the admitted statement,
was unfairly suppressed.
Ortiz concedes that Pabon's redacted statements "were not
as unfair to" Ortiz's own defense as was Goode's statement.14
However, he points out that Pabon had indicated to the police
that he had no knowledge of Ortiz's involvement in the incident,
just as he had no knowledge of other named uncharged
individuals, so that the jury ought to have heard that Ortiz was
classified by Pabon in the "I don't know" category rather than
14
The redacted statement was as follows:
"Pabon was asked specifically about several people . . .
'Ace -- I don't know; Mills -- heard he was locked up last
night; and Pudge -- I don't know.'"
In the original statement, Pabon had also stated, "K-EZ --
you got him; . . . Pedro [i.e., Ortiz] -- I don't know; . . . PJ
-- heard he was locked up last night."
23
the "you [i.e., the police] got him" classification, which
included Mitchell.
Both Mitchell's and Ortiz's arguments fail for the same
reason that the objections to Goode's statements fail.
Moreover, it does not appear to have been possible to amend
Pabon's statements in such a way that both satisfied Bruton and
met the demands of Ortiz and Mitchell for verbal completeness.
See Commonwealth v. Rivera, 464 Mass. at 71.
5. Evidentiary rulings. a. Admission of Pabon's denials.
Pabon claims error in the admission of his denials of
culpability contained in his first (June 19, 2007) police
statement, admitted at trial, and in McLaughlin's testimony
about Pabon's second statement (custodial interrogation on March
1, 2008). He argues that he was prejudiced by the fact that the
jury heard his denials of various accusations posed by the
police. The claim lacks merit. It is clear that Pabon's
extrajudicial statements, made during both exchanges with the
detectives, were neither absolute nor unequivocal denials and,
surely, had ample probative value that outweighed any possible
prejudice to him. See Commonwealth v. Spencer, 465 Mass. 32, 47
(2013). There was no abuse of discretion in admitting this
evidence.
b. Pabon's two knives found at arrest. At the time of
Pabon's arrest, the police found that he possessed two knives.
24
The trial judge allowed McLaughlin to testify that, in Pabon's
postarrest statement, Pabon was asked why he had two knives and
Pabon responded that he had never stabbed anyone and it was
better than carrying a gun. Pabon argues that the admission of
this evidence was error. We disagree. The two knives, in his
possession at the time of his arrest, were "relevant to show
that [Pabon] had the means of committing the offense."
Commonwealth v. James, 424 Mass. 770, 779 (1997). It clearly
was within the judge's discretion to admit knives in the
defendant's possession that could have been used in the murder.
See Commonwealth v. Rosa, 468 Mass. 231, 237-238 (2014). See
also Commonwealth v. Daye, 435 Mass. 463, 474-475 (2001)
("Subject to the discretion of the judge, 'it is commonly
competent to show the possession by a defendant of an instrument
capable of being used in the commission of the crime, without
direct proof that that particular instrument was in fact the one
used.' Commonwealth v. Toro, 395 Mass. 354, 356 [1985], quoting
Commonwealth v. O'Toole, 326 Mass. 35, 39 [1950]").
c. Evidence about the investigation. Citing Commonwealth
v. Stuckich, 450 Mass. 449 (2008), the defendants also argue
that the prosecutor improperly elicited testimony from
McLaughlin about the nature of the police investigation that
resulted in the arrest of the defendants only and not other
individuals who may have been present. This argument is
25
misplaced for at least two reasons. First, throughout the
trial, the defense vigorously attacked the adequacy of the
police investigation, placing the investigation clearly at
issue. See Commonwealth v. Arana, 453 Mass. 214, 226-227
(2009). In addition, the court's concern in Stuckich, a rape
and indecent assault and battery case, was that "[t]he fact that
the Commonwealth brought its resources to bear on this incident
create[d] the imprimatur of official belief in the [alleged rape
victim]. It is unnecessary and irrelevant to the issue of the
defendant's guilt." 450 Mass. at 457. No similar
considerations apply in this case, where the fact that the
victim was murdered was not contested.
The defendants' argument that the prosecutor should not
have been permitted to elicit testimony that some of the
witnesses were reluctant to testify and that one witness
testified on redirect examination that she was "scared" also
fails. See Commonwealth v. Fitzgerald, 376 Mass. 402, 411
(1978) ("[I]n general, questions and arguments concerning a
witness's fear in testifying are not improper per se. They
would be improper only if there were some ground, other than
that they dealt with fear, for finding impropriety"). See also
Commonwealth v. Auguste, 418 Mass. 643, 647 (1994).
6. Prosecutor's closing argument. The defendants assign
as error certain remarks that the prosecutor made in his closing
26
argument to the jury. Specifically, Ortiz argues that the
prosecutor improperly argued that the Commonwealth witnesses
"were credible because they had been reluctant to appear or to
identify the defendants out of fear." In fact, that portion of
the prosecutor's argument was offered in the permissible context
of asking the rhetorical question, "What possible motive does
[the witness] have to come in here and lie to you?" "A
prosecutor can address, in a closing argument, a witness's
demeanor, motive for testifying, and believability, provided
that such remarks are based on the evidence, or fair inferences
drawn from it, and are not based on the prosecutor's personal
beliefs. . . . When credibility is an issue before the jury,
'it is certainly proper for counsel to argue from the evidence
why a witness should be believed.' Commonwealth v. Raymond, 424
Mass. 382, 391 (1997), quoting Commonwealth v. Thomas, 401 Mass.
109, 116 (1987)." Commonwealth v. Freeman, 430 Mass. 111, 118-
119 (1999). Moreover, as discussed supra, a witness's fear
about testifying is properly admitted on the issue of the
witness's credibility.
Ortiz and Pabon also argue that the prosecutor's statement,
"So they waited and they waited until he got out, and until he
was brought to Havelock Street, and then, and only then did they
exact their revenge upon him," was based on a fact not in
evidence. In support, they note that the date the victim was
27
released from custody after being arrested for slashing Jaleek
Leary was not in evidence. However, as the Commonwealth
responds, the argument that the opportunity for revenge arose at
the moment when the victim was brought to the Wilcock/Havelock
Street area clearly was supported by the evidence -- and that
event obviously occurred after the victim had been released from
custody, whenever the release occurred.
Mitchell contends that the prosecutor's argument that
Mitchell said, as he wiped the knife on the pole, "That's what
he gets," was not supported by the evidence. However, the
prosecutor's statement was supported by the fact that at least
one witness identified Mitchell as the person who wiped the
blood on the street pole ("And I seen Markeese walking past my
house and Markeese was wiping the blood on a pole"). At another
point, the same witness testified that soon afterwards Mitchell
and another individual walked away and she heard one of them --
she couldn't remember which -- say, "[T]hat's what you get."
Another witness testified that Mitchell walked away from the
scene alone, carrying a knife, and then "wiped the blood on the
pole." Even if the prosecutor's inference was strained -- i.e.,
that it was a leap to conclude that it was Mitchell who said,
"That's what you get" after wiping the blood -- such a
misstatement cannot be said to have created a substantial risk
of a miscarriage of justice here.
28
Mitchell also argues that the prosecutor impermissibly
argued, without a basis in evidence, that the case was "about
revenge and retaliation . . . and these four defendants'
conscious and deliberate decisions on May 22 of 2007 . . . to
get Terrance Jacobs up to Havelock Street, to get him back for
stabbing their friend and relative Jaleek Leary." In fact, the
evidence supported the argument that there was a plan to "get
back" at the victim for slashing Leary. Moreover, the
prosecutor did not argue that the plan at the outset was to
murder him.
Finally, Ortiz, Pabon, and Mitchell all challenge the
prosecutor's argument that "all the defendants armed themselves
with knives in anticipation of confronting Terrance Jacobs." In
fact, because there was evidence that each of the four
defendants stabbed the victim, the statement that each armed
himself with a knife was supported in the evidence. To the
extent that the wording of the prosecutor's argument implied
that there were at least four knives and that each defendant
began the confrontation with a knife, that conclusion is not
unreasonable given the speed with which the confrontation
escalated and the number of times the victim was stabbed.
Moreover, even if the inference that each defendant had a knife
at the beginning of the confrontation is not fully supported,
29
that variation is not material and cannot be said to have
created a substantial risk of a miscarriage of justice.
"Where, as here, the defendant[s] did not object to these
closing argument statements at trial, we determine whether the
statements created a substantial likelihood of a miscarriage of
justice that requires a new trial." Commonwealth v. Penn, 472
Mass. 610, 626 (2015).15 "In determining whether an argument was
improper, we examine the remarks 'in the context of the entire
argument, and in light of the judge's instructions to the jury
and the evidence at trial.' Commonwealth v. Gaynor, 443 Mass.
245, 273 (2005), quoting Commonwealth v. Viriyahiranpaiboon, 412
Mass. 224, 231 (1992)." Commonwealth v. Miller, 457 Mass. 69,
79 (2010). We have carefully reviewed the defendants'
contentions and the transcript of the prosecutor's closing. We
see no error, and certainly no substantial risk of a miscarriage
of justice. "A 'prosecutor is entitled to argue the evidence
and fair inferences to be drawn therefrom.' Commonwealth v.
Paradise, 405 Mass. 141, 152 (1989)." Commonwealth v. Deane,
458 Mass. 43, 55-56 (2010). Finally, we have in mind the
judge's instruction to the jury that "[t]he opening statements
and the closing arguments of the lawyers are not evidence . . .
15
Two of the defendants did object to other statements in
the prosecutor's closing argument. They do not argue those
issues on appeal.
30
if anything they said about the evidence differs from your
memory of the evidence, it is your memory that controls."
7. Proposed instructions on withdrawal from joint venture.
The trial judge correctly refused the defendants' request to
charge the jury on the subject of withdrawal from a joint
venture.16 To advance a theory of abandonment or withdrawal from
a criminal joint venture, Massachusetts law requires that "there
must be at least an appreciable interval between the alleged
termination and [the commission of the crime], a detachment from
the enterprise before the [crime] has become so probable that it
cannot reasonably be stayed, and such notice or definite act of
detachment that other principals in the attempted crime have
opportunity also to abandon it." Commonwealth v. Rivera, 464
Mass. 56, 74 (2013), quoting from Commonwealth v. Miranda, 458
Mass. 100, 118 (2010). None of the defendants was entitled to
an instruction as to joint venture withdrawal because there was
no evidence to support such a hypothesis. Contrast Commonwealth
v. Allen, 430 Mass. 252, 257-258 (1999).
8. Fidler motion. The defendants argue that they
presented a colorable claim that a juror was biased and that the
trial judge erred when she denied their motion for an
opportunity to question the juror. See Commonwealth v. Fidler,
16
Ortiz also objects to the giving of a joint venture
instruction pursuant to Commonwealth v. Zanetti, 454 Mass. 449(2009). We see no error.
31
377 Mass. 192 (1979). After holding an evidentiary hearing, the
trial judge denied the motion in a ten-page decision, recounting
the facts in considerable detail, along with her reasons for
crediting parts of Ortiz's hearing testimony and discrediting
other parts. The basis for the motion apparently was a
suspicion that one juror might have been related to an
individual with whom Ortiz was incarcerated; Ortiz had
concluded, from the individual's hostility to Ortiz, that the
individual was associated with a gang "that ha[d] an alliance
with" the victim's gang. In addition, the juror might have
attended high school with an aunt of the victim. The juror also
lived within a mile of the incident, a fact she disclosed before
she was empanelled. The defendants presented no witnesses with
any personal knowledge of any of the suspected associations.
The judge concluded that the defendants had failed to make
a "colorable showing" of either extraneous influence or bias on
the part of the juror in question. We agree. An impartial jury
is, without question or doubt, fundamental to an accused's right
to a fair trial. A balancing principle, however, is that the
questioning of a juror, postverdict, is a "sensitive undertaking
and is fraught with potential for error." Commonwealth v.
Connor, 392 Mass. 838, 843 (1984). In the end, "[a] trial judge
has 'broad discretion "to determine what manner of hearing, if
any, is warranted."' Commonwealth v. Dixon, 395 Mass. 149, 151
32
(1985), quoting United States v. Campbell, 684 F.2d 141, 151
(D.C. Cir. 1982). 'No duty to investigate arises unless the
court finds some suggestion or showing that extraneous matters
were brought into the jury's deliberations.' Commonwealth v.
Dixon, supra, citing Commonwealth v. Fidler, 377 Mass. 192, 203
(1979). The party seeking the inquiry must show more than mere
speculation. Commonwealth v. Dixon, supra at 152."
Commonwealth v. Rivera, 464 Mass. at 80-81. We see no abuse of
discretion.
We affirm the judgments and the order denying the
defendants' postconviction motion.17
So ordered.
17
We have carefully considered each of the arguments
presented in the defendants' briefs. To the extent that any
particular claim has not been addressed specifically herein, we
have found it to be without merit. See Commonwealth v.
Domanski, 332 Mass. 66, 78 (1954).