Commonwealth v. Wood , 469 Mass. 266 ( 2014 )

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SJC-10977
COMMONWEALTH vs. WILLIAM WOOD.
Suffolk. March 7, 2014. - August 7, 2014.
Present: Ireland, C.J., Cordy, Botsford, Gants, & Lenk, JJ.1
Homicide. Felony-Murder Rule. Robbery. Evidence, Third-party
culprit, Relevancy and materiality, Hearsay, Prior
misconduct, Joint venturer, Expert opinion, Testimony
before grand jury. Jury and Jurors. Constitutional Law,
Confrontation of witnesses. Witness, Expert. Perjury.
Grand Jury. Practice, Criminal, Capital case, Hearsay,
Jury and jurors, Confrontation of witnesses, Argument by
prosecutor, Grand jury proceedings, Conduct of prosecutor,
Verdict, Question by jury, Duplicative convictions. Joint
Enterprise.
Indictments found and returned in the Superior Court
Department on May 4, 2004.
The cases were tried before Patrick F. Brady, J.
Stephen Neyman for the defendant.
Cailin M. Campbell, Assistant District Attorney (Patrick
Haggan, Assistant District Attorney, with him) for the
Commonwealth.
1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
2
CORDY, J. In the early morning hours of February 13, 2004,
Betsy Tripp was bound with telephone wire and murdered in her
home, a condominium on Monsignor Way in the Dorchester section
of Boston. Her throat was slit. The man who shared the
condominium with her, Morris Thompson, was shot in the face,
coming close to death, and losing an eye. The perpetrators fled
in a vehicle that Thompson had borrowed from a neighbor in the
condominium complex and for which Thompson had the keys. The
vehicle was abandoned in the parking lot of a Dorchester
elementary school and set ablaze shortly after 2 A.M. that same
morning.
Thompson survived his wounds and accused the defendant,
William Wood, and Wood's friend, Quincy Butler, of committing
the crimes in the course of a botched kidnapping and robbery
attempt. Both were charged with murder and related crimes,2 and
were tried together. There were four trials. Two ended in
mistrials when the jury were unable to unanimously agree on a
verdict. A third resulted in mistrial when the trial judge
became ill during trial. At the fourth trial, which is the
2
The defendant, William Wood, was charged with murder in
the first degree, armed carjacking, two counts of kidnapping,
armed home invasion, two counts of armed robbery, assault and
battery by means of a dangerous weapon (a handgun), larceny of a
motor vehicle, and malicious destruction of property over $250.
Quincy Butler was charged with the same offenses, in addition to
one count of possession of a firearm.
3
subject of this appeal, the defendant was convicted of murder in
the first degree on theories of felony-murder and extreme
atrocity or cruelty.3 Butler was convicted of murder in the
second degree, and his appeal is pending in the Appeals Court.
As outlined further below, the principal witnesses for the
Commonwealth were Thompson and Butler's former roommate and girl
friend at the time of the murder, Laura DaSilva. DaSilva's
testimony included her observations regarding the kidnapping at
gunpoint of Thompson from her apartment by the defendant and
Butler shortly before the murder; her observations of the
defendant and Butler when they returned to her apartment at
approximately 3 A.M. on February 13 and disposed of their
clothing, including what appeared to be bloody gloves; and
admissions made to her by Butler later that same morning
regarding what he and the defendant had done at Tripp's
condominium.
Both the defendant and Butler testified at trial,
essentially denying their involvement in the crimes. In
addition to their testimony, the defense focused on the lack of
forensic evidence tying either of them to the crime scene, what
3
The defendant was also convicted of armed carjacking, two
counts of kidnapping, armed home invasion, two counts of armed
robbery, and larceny of a motor vehicle. The judge dismissed
his convictions on both counts of armed robbery as duplicative
of his conviction of felony-murder in the first degree. The
defendant was acquitted of assault and battery by means of a
dangerous weapon on Morris Thompson.
4
they claimed was an inadequate police investigation, and,
relatedly, the possibility that Thompson or one of Thompson's
drug-related associates had committed the crimes. The outcome
of the case, to a large degree, turned on the jury's assessment
whether the Commonwealth's principal witnesses or the
codefendants were telling the truth.
On appeal, the defendant raises numerous claims of error.
For the reasons stated below, we find no reversible error, and
discern no basis to exercise our authority under G. L. c. 278,
§ 33E, to reduce or reverse the murder verdict. Consequently,
we affirm the defendant's convictions. We also reinstate the
defendant's two convictions of armed robbery, the underlying
felonies in the felony-murder conviction, which the judge
dismissed as duplicative. As we have concluded in similar
circumstances, those convictions are not duplicative where the
defendant is also convicted on another theory of murder in the
first degree, here murder with extreme atrocity or cruelty.
Commonwealth v. Gambora, 457 Mass. 715, 734 (2010) ("if a jury
return a special verdict specifying felony-murder as one of
several theories under which they convicted the defendant, the
underlying felony remains a distinct crime"). Commonwealth v.
Raymond, 424 Mass. 382, 396-397 (1997) (same).
5
1. Background. We summarize the facts as the jury could
have found them, in the light most favorable to the
Commonwealth. Commonwealth v. Sanna, 424 Mass. 92, 93 (1997).
a. The murder. Thompson and Tripp began dating eight
years prior to her death in 2004, and moved into a condominium
in Dorchester together in 2001 or 2002. Thompson received
disability checks every month and also worked odd jobs, often as
a doorman at various Boston nightclubs or as a construction
worker.
In February, 2004, Thompson's neighbor, Mitra Ghobadi,
asked him to refurbish her apartment. He determined that he
needed help to finish the job on time. DaSilva had lived with
Thompson and Tripp for some time to escape an abusive former boy
friend, and Thompson decided to enlist the help of her new boy
friend, Butler. Thompson testified that he knew Butler as "Q."4
DaSilva testified that on the evening of February 12,
Thompson drove to her house in Boston with an "eight ball" of
"crack" cocaine. He smoked the crack cocaine with DaSilva,
Butler, and two other residents of the apartment in DaSilva's
bedroom.5,6 Thompson told Butler that he would pay him $200 at
4
Butler testified that he had met Morris Thompson numerous
times at Laura DaSilva's apartment.
5
Thompson repeatedly denied being a drug user and testified
that he did not smoke "crack" cocaine that night.
6
the end of the following day for his assistance refurbishing
Ghobadi's apartment. Butler responded that he had a friend who
could help them get through the work more quickly. Thompson
agreed, and said that Butler and his friend could split the
$200.
At some point, the defendant entered the bedroom. Butler
told DaSilva to follow him to the bathroom to talk with him.
Once there, Butler said "that he was taking [Thompson] out and
[Thompson] wasn't coming back to the house."
Thompson became uneasy at the sight of the defendant, and
something "just didn't feel right." At that point, Butler said,
"We're gonna get paid tonight," pulled out a silver revolver
with a black handle,7 and put the gun to Thompson's head, while
the defendant went through Thompson's pockets. The defendant
took Thompson's automobile keys, money, and wallet, while
DaSilva sat and watched from the bed, silently.
After taking Thompson's money, Butler and the defendant
took Thompson to his automobile.8 The defendant drove while
6
The two other residents retired to their bedroom after
smoking and did not witness or take part in the armed robbery or
its aftermath.
7
Laura DaSilva testified that she had seen the defendant
give the gun to Butler months earlier.
8
On the night of the murder, Morris Thompson drove Mitra
Ghobadi's automobile, which she had lent to him after the
automobile he shared with Betsy Tripp was damaged. As the
7
Thompson sat in the passenger seat and Butler sat behind him
holding the gun to Thompson's head. The group arrived at
Thompson's and Tripp's condominium building sometime after
midnight. After asking if the building had any security
cameras, the defendant and Butler walked Thompson to the front
door of the building and used his keys to open it. When they
then entered the condominium unit, Tripp was sleeping in the
bedroom.
The defendant and Butler ripped a telephone cord from the
wall and tied Thompson up with his hands behind his back in the
living room. They also woke Tripp and tied her in a similar
manner. They demanded money, and the defendant rummaged through
the house while Butler sat holding Thompson at gunpoint.
Eventually they demanded Tripp's automated teller machine (ATM)
card and its personal identification number (PIN),9 which she
gave to the defendant. The defendant left the house to use the
ATM, while Butler stayed, "beating [Thompson] around on the
floor."
distinction is not relevant, we refer to the vehicle as
Thompson's for the sake of brevity.
9
The defendant testified that he had previously met
Thompson through DaSilva and occasionally sold him crack
cocaine. He also testified that he had Tripp's automated teller
machine card because Thompson had traded it to him in exchange
for crack cocaine on February 12, 2004, several hours before the
murder.
8
The defendant went to an ATM in Codman Square, which was
located a few minutes from Thompson's and Tripp's building.
Between 1:49 and 1:50 A.M., he tried to withdraw money from the
ATM five times, before successfully obtaining forty dollars.
One minute later, he went to another ATM in the area and
unsuccessfully tried to withdraw more money. He then returned
to the condominium.
On his return, the defendant told Butler that he did not
get any money. Tripp explained that her account was empty
because a check she had received had not cleared yet. At that
point, the defendant went into the kitchen, returned with a
knife, grabbed Tripp by the back of the head, and cut her
throat.
On hearing Tripp scream, Thompson jumped up and tried to
push the defendant out of the way. As Thompson jumped toward
the defendant, Butler fired one shot and hit Thompson in the
side of the head.10 The bullet exited near his left eye.
Thompson immediately lost consciousness and fell to the floor.
When he awoke, Tripp was lying beside him, bleeding and barely
alive. He broke out of his restraints and went into the hallway
looking for help from his neighbors.
10
Butler fired a second shot, which hit Tripp in the arm,
after Thompson lost consciousness.
9
On answering a knock at his door, Richard Young, Thompson's
neighbor, found Thompson bleeding profusely with his left eye
hanging out of its socket. Thompson testified that he told
Young, "A guy named 'Q' shot me in the head, and Will cut my
girlfriend's throat."11 Young told his wife to telephone 911,
and he telephoned the fire department. Within minutes, the
police and emergency medical technicians (EMTs) arrived.
Thompson repeatedly told the police and medical personnel on the
scene that "'Q' shot him." At some point, Young also heard
Thompson say, "My girlfriend is in the apartment."
The police found Tripp lying on the floor. She was covered
with clothes, and she had a "deep," significant slash across her
neck. She was still alive and struggling to breathe as EMTs
attended to her, but she was pronounced dead on arriving at
Boston Medical Center.
After the shooting, the defendant and Butler took
Thompson's automobile to the nearby Fifield Elementary School
and set it on fire. At approximately 3 A.M., they returned to
DaSilva's house. The two went into DaSilva's bedroom, took off
their clothes, and placed them in a plastic bag. DaSilva
noticed a pair of black leather gloves that appeared to be
stained with blood, prompting her nervously to ask them if it
11
Thompson admitted that he was not sure if Richard Young
understood him, and in fact Young testified only that Thompson
said, "I've been shot."
10
was blood. Neither responded, and instead Butler counted some
money and gave it to the defendant, who said that after the
stress he had just been through he wanted to get high, to which
Butler responded, "No, not right now, nobody's getting high
right now."
After the defendant left DaSilva's house, she went to take
a shower. Butler followed her into the bathroom and told her
that he (rather than the defendant) had slit Tripp's throat,
saying, "She didn't have to die like that."12 Butler told her
that he and the defendant had tied Thompson and Tripp with
telephone wire before taking Tripp's ATM card. Butler added
that the defendant went to get money from the ATM, and that the
defendant told Tripp that, if he did not get any money, he was
going to slit her throat. Butler also stated that Thompson
started to free himself while he (Butler) was cutting Tripp's
throat, and the defendant responded by shooting Thompson.
12
DaSilva consistently testified at trial that Butler told
her that he, rather than the defendant, killed Tripp, and that
the defendant shot Thompson. What Butler told DaSilva may have
been part of his effort to frighten her into silence. Thompson
testified consistently at trial that he observed the defendant
kill Tripp, and that Butler shot him. Based on the jury verdict
(the defendant guilty of murder in the first degree on theories
of felony-murder and extreme atrocity or cruelty, and Butler
guilty of murder in the second degree), it seems likely that the
jury believed Thompson's testimony and discounted Butler's
overstating of his role in the murder of Tripp and the shooting
of Thompson in his recounting of the details to DaSilva.
11
Finally, he said that the two left under the assumption that
both Thompson and Tripp were dead.
b. The investigation. The police investigation got
underway immediately after the murder. Extensive fingerprint
and deoxyribonucleic acid (DNA) testing on the clothing, knives,
and other surfaces found in the condominium was conducted, but
did not conclusively link either the defendant or Butler to the
crime scene.
On February 20, 2004, Boston police detectives asked Butler
and DaSilva to come to police headquarters and make statements.
DaSilva was afraid Butler would harm her children if she
implicated him in the murder.13 As a result, DaSilva lied to the
police and told them that Butler had been with her at the time
Tripp was killed. Later, Butler encouraged her to keep her
false story consistent.
On February 23, Thompson gave a statement to Boston police
detectives in which he repeated that Butler had shot him and
that the defendant had slit Tripp's throat. The detectives
intended to conduct a photographic array, when one of them
13
DaSilva testified that Butler took her to a hotel one or
two days after the murder and told her that he might have to
kill the defendant because Thompson had survived. He also told
her that she was to tell the police that he, Butler, stayed with
her the whole night of the murder and did not go anywhere. When
DaSilva suggested she might kill herself, Butler told her that
if she died he would kill her three children. This conversation
made her very frightened for the safety of her children.
12
knocked over his bag, causing a piece of paper showing six
photographs to fall out. Thompson saw the paper, recognized the
defendant's picture, and said, "That's the guy that had cut
Betsy's throat." He later identified Butler as the shooter in
another photographic array.
On February 26, the detectives asked DaSilva to come back
to the police station for further questioning. Once at the
station, DaSilva admitted that she had lied in her first
statement because of her fear of Butler. She then gave a
different account of what she witnessed the night of the murder,
implicating Butler, although she testified at trial that she had
still held back certain details, including some of Butler's
admissions to her. Butler and the defendant were then arrested
and subsequently indicted.14 We address other relevant facts as
they arise below.
2. Discussion. a. Third-party culprit and Bowden
evidence. In a pretrial motion joined by Butler, the defendant
sought to introduce, through several witnesses and cross
examination, evidence intended to show that a third party --
likely Thompson -- killed Tripp, as well as evidence that the
14
DaSilva testified that in March, 2004, after Butler and
the defendant were arrested and in jail, she received a
telephone call from a third party accompanied by Butler and the
defendant in a three-way conference call. Butler and the
defendant asked her what she had told the police, and she denied
having spoken to them. They then reiterated that she was not to
talk to the police.
13
police failed to investigate certain statements implicating
Thompson. We discern no error in the judge's rulings excluding
much of the proffered evidence.
The defendant sought to introduce testimony from Natalie
Shaheen, a friend of Tripp, recalling several statements made to
her by Tripp, purportedly showing a deteriorating relationship.
Specifically, it was represented that Shaheen would testify that
Tripp had told her that Thompson had been abusive toward her for
years, both threatening and inflicting physical injury; that she
was frightened of Thompson and the people he brought over to the
condominium as a consequence of his crack cocaine habit, and did
not feel safe in her own home; and that Thompson had told Tripp
many times that he would kill her. Sheehan would also have
testified that Tripp had planned to tell Thompson to move out of
her home, and that Tripp feared that Thompson was "catching on"
to her plan. Finally, Sheehan would have testified that Tripp
stated to her that if she were killed, it would be Thompson who
killed her.
The defendant also sought to introduce evidence through his
cross-examination of Thompson. In particular, he intended to
question Thompson regarding his substance abuse history in order
to impeach his expected testimony that he had only used crack
cocaine once, and that he did not use it on the night of the
murder.
14
He also intended to question Thompson regarding an incident
between Thompson and a woman named Laura Buchman, in which
Buchman stole a camera from Thompson over a drug dispute and
Thompson allegedly paid several people to beat Buchman up in
retaliation. He further intended to call Buchman as a witness
to describe the camera incident and testify that she and
Thompson often used crack cocaine together without Tripp's
knowledge, and that Thompson acted "crazy" when using cocaine.
The judge excluded all the proffered evidence from Shaheen
and Buchman as either hearsay or irrelevant, and allowed the
defendant to inquire as to Thompson's possession and use of
drugs and his dealings with a drug dealer known as "Tony" or "T"
only in the days immediately preceding the murder. With regard
to Shaheen, the judge determined that her proposed testimony was
hearsay that did not fall within any exception. He noted that
none of the proffered evidence provided a substantial connecting
link to any third-party culprit. In particular, he stated,
"Looking at the whole picture I can't see Thompson as third
party culprit. I can't rationally, without an incredible
imagination, I can't picture him being the culprit. And as far
as a third party unknown drug dealer being the culprit, it just
seems too farfetched and feeble."
"The standard applicable to admission of third-party
evidence in Massachusetts is well settled . . . ." Commonwealth
15
v. Buckman, 461 Mass. 24, 30 (2011), cert. denied, 132 S. Ct.
2781 (2012). "Third party culprit evidence is 'a time-honored
method of defending against a criminal charge.'" Commonwealth
v. Silva-Santiago, 453 Mass. 782, 800 (2009), quoting
Commonwealth v. Rosa, 422 Mass. 18, 22 (1996). "A defendant may
introduce evidence that tends to show that another person
committed the crime or had the motive, intent, and opportunity
to commit it." Commonwealth v. Lawrence, 404 Mass. 378, 387
(1989), quoting Commonwealth v. Harris, 395 Mass. 296, 300
(1985).
A judge's discretion to admit third-party culprit evidence
is not without limits. The proffered evidence "must have a
rational tendency to prove the issue the defense raises, and the
evidence cannot be too remote or speculative." Silva-Santiago,
453 Mass. at 801, quoting Rosa, 422 Mass. at 22. See Buckman,
461 Mass. at 32. Further, if the evidence is hearsay not
falling within any exception, it is admissible only if it is
"otherwise relevant, will not tend to prejudice or confuse the
jury, and there are other 'substantial connecting links' to the
crime." Silva-Santiago, supra, quoting Commonwealth v. Rice,
441 Mass. 291, 305 (2004). "Because the issue is one of
constitutional dimension, we are not bound by an abuse of
discretion standard, but rather examine the issue
16
independently." Commonwealth v. Conkey, 443 Mass. 60, 66-67
(2004), S.C., 452 Mass. 1022 (2008).
The judge did not err in excluding the proffered third-
party culprit evidence here. First, the entirety of Shaheen's
proffered testimony was inadmissible hearsay, and as such was
required to have "substantial connecting links" to the crimes.
See Buckman, 461 Mass. at 32 ("Third-party culprit evidence is
offered for the truth of the matter, and as such it must have
substantial probative value in connecting a third person to the
crime"). While Shaheen's testimony may have shown that the
relationship between Thompson and Tripp was strained, any
inference that Thompson was the culprit is entirely unsupported
by any evidence. Thompson's testimony as to the events of the
evening was largely consistent with DaSilva's testimony, based
on her observations and Butler's admissions to her.15 It was
also consistent with what the responding police and EMTs
observed when they arrived at the scene. The judge concluded,
and we agree, that it strains credulity, and is entirely
speculative, that Thompson slit Tripp's throat, shot himself,
survived, discarded a firearm, and fabricated a story
implicating the defendant and Butler while suffering from a
15
There is nothing in the record to suggest that Thompson
and DaSilva ever had any opportunity or incentive to collude in
constructing consistent versions of the event that evening.
Indeed, Thompson indicated during his testimony that he believed
DaSilva had organized the robbery.
17
painful and blinding wound that, according to the responding
officers, appeared to be "fatal." See Commonwealth v. O'Brien,
432 Mass. 578, 588-589 (2000) (conversation between victim and
friend about victim's fear of brother-in-law insufficient to
suggest he was third-party culprit who had motive, intent, and
opportunity to commit crime).
The same is true of the proffered evidence that Thompson
was a heavy drug user, had a violent past, and had threatened
Buchman. Where the overwhelming weight of the evidence was
contrary to Thompson being the culprit, and where there was no
evidence suggesting his complicity in the killing, the judge did
not err in concluding that evidence of these prior bad acts did
not support any rational inference linking Thompson to the
crime.
Moreover, where a defendant seeks to admit prior bad acts
of an alleged third-party culprit, he must show that "the acts
of the other person are so closely connected in point of time
and method of operation as to cast doubt upon the identification
of [the] defendant as the person who committed the crime."
Conkey, 443 Mass. at 66, quoting Commonwealth v. Hunter, 426
Mass. 715, 716-717 (1998). Here, none of the excluded evidence
was closely connected in time to the murder. Proffered evidence
that would show that Thompson was a heavy drug user who
occasionally acted "crazy" while using cocaine described
18
incidents that occurred long before the night of the murder.
Similarly, his alleged dispute with Buchman and hiring of men to
harm her after she stole a camera from him was evidence of an
irrelevant prior bad act. See Commonwealth v. Pimental, 454
Mass. 475, 479 (2009) (prior bad act of third-party culprit not
admissible where it "shared no singular features or striking
resemblance" with crime). It also had no tendency to prove that
anyone other than the defendant committed the crime, given that
there is no reading of the record that suggests either that
Buchman killed Tripp or that the incident was in any way related
to the murder.
Finally, although the judge limited testimony regarding
Thompson's prior drug use, he did allow evidence of Thompson's
use of crack cocaine on the night of the murder and the days
preceding it. Defense counsel was permitted to ask whether
Thompson used crack cocaine the night of the murder, whether
crack cocaine was found in the pants he was wearing that night,
and whether he had arranged to hold crack cocaine for a drug
dealer named "Tony" or "T." Defense counsel was also permitted
to elicit testimony from other witnesses to the effect that
Thompson smoked crack cocaine in the hours preceding the murder
and that crack pipes were found in his bedroom. Thus, although
the judge barred testimony about the full extent of Thompson's
drug use and his behavior while on drugs, the judge admitted
19
(and the jury heard) substantial testimony about Thompson's drug
use in the days leading up to the murder and his dealings with
"Tony," rendering the excluded evidence cumulative. See
Commonwealth v. Greineder, 458 Mass. 207, 252 (2010);
Commonwealth v. Alammani, 439 Mass. 605, 611-612 (2003).
The defendant also argues that Shaheen's statements about
Tripp should have been admitted -- both through her own
proffered testimony and that of Boston police Detective Russell
Grant, to whom she relayed the information -- in furtherance of
a Bowden defense. See Commonwealth v. Bowden, 379 Mass. 472,
486 (1980). Pursuant to a Bowden defense, a defendant may
introduce evidence regarding the police investigation in order
to create an inference "that the evidence at trial may be
inadequate or unreliable because the police failed to conduct
the scientific tests or to pursue leads that a reasonable police
investigation would have conducted or investigated, and these
tests or investigation may have led to significant evidence of
the defendant's guilt or innocence." Silva-Santiago, 453 Mass.
at 801. "[T]he failure of the police to investigate leads
concerning another suspect is sufficient grounds for a Bowden
defense." Id. at 802. See Commonwealth v. Phinney, 446 Mass.
155, 166 (2006) (police reports admissible to show that police
were on notice of suspect but failed to investigate possible
involvement in murder). "[T]he exclusion of evidence of a
20
Bowden defense is not constitutional in nature and therefore is
examined under an abuse of discretion standard." Silva-
Santiago, supra at 804 n.26. To determine whether a judge
abused his or her discretion in declining to admit such
evidence, the judge must determine whether the proffered third-
party culprit evidence was provided to the police and, if so,
whether the probative weight of the evidence outweighed the risk
of unfair prejudice to the Commonwealth from turning the jury's
attention to "collateral matters." Id. at 803.
As part of the police investigation, Detective Grant
interviewed Shaheen on February 22, 2004, during which she
provided essentially all of the third-party culprit evidence
that her proffered testimony would have encompassed. That
evidence was properly excluded, however, because its probative
value was negligible. At best, the evidence would have shown
that police failed to investigate Thompson as a suspect despite
being aware of his drug use and his deteriorating relationship
with Tripp. However, where there was no evidence suggesting
that Thompson killed Tripp, or was in any way involved in her
death, the judge properly concluded that the evidence would have
been far more prejudicial than probative.
In any event, the defense was permitted to challenge the
adequacy of the police investigation as a whole. Counsel for
both defendants extensively cross-examined Grant about his
21
investigation, emphasizing the fact that Grant was aware that
Thompson had repeatedly lied to the police, and that Grant had
done very little to find "T," despite having information
suggesting that he had allegedly fronted Thompson an eight ball
of crack cocaine only days before the murder.16 Defense counsel
also argued in his closing, "The police in this case did not do
the job that each and every one of you should expect to be
done," and argued that a further investigation of Thompson's
drug use might have uncovered a third-party drug dealer or user
who may have committed the crime. Thus, where the issue of an
inadequate investigation was fairly before the jury, the
defendant suffered no prejudice from the exclusion of the
proffered evidence.
b. Hearsay statements. The defendant argues that the
judge erred in allowing DaSilva to testify about the statements
made by the defendant to Butler, which were later relayed to
her, and statements made by Butler to her during the days
following the murder. Because the testimony in question falls
within the joint venture exception to the hearsay rule, we
conclude that there was no error.
Defense counsel objected to the introduction of statements
made by Butler to DaSilva, arguing that the Commonwealth had not
16
Defense counsel through cross-examination and the calling
of its own expert extensively challenged the adequacy of the
forensic investigation conducted by the police.
22
as of the time of her testimony shown that Butler and the
defendant were engaged in a joint venture. The judge denied the
motion, and defense counsel requested an instruction as to the
joint venture exception to the hearsay rule.17 The judge
instructed the jury, in relevant part:
"[Y]ou may consider against an individual defendant, in
this case, specifically, Mr. Wood, who is not alleged to
have been a party to this conversation, any statements made
by the other alleged participant in the joint venture, that
is allegedly Mr. Butler, only if three things have been
proved to you about that statement, this is the statement
allegedly made by Quincy Butler. First, that other
evidence, apart from the statement, shows that there was a
joint venture between the speaker, that's allegedly Mr.
Butler, and the defendant, Wood. Second, that the
statement was made during the joint venture including the
concealment phase if any. And third, that the statement
was made in order to further or help along the goal of the
joint venture including concealing the alleged crime."
After the limiting instruction, DaSilva testified as to the
details of Butler's admissions to her on the night of the
murder. She testified that Butler told her that the defendant
took Tripp's ATM card and told Tripp that he would slit her
throat if he did not get any money from her account. He went on
to say that, when the defendant returned without any money,
Butler slit Tripp's throat, Thompson broke free of the telephone
cord, and the defendant shot Thompson in the face. DaSilva went
17
The defendant's contention that he accepted the judge's
offer to instruct the jury reluctantly, in order to mitigate the
damage, is entirely unsupported by the record. The judge noted
that, in the prior trials, defense counsel had asked the judge
not to give an instruction, and asked if that was still his
position. Defense counsel then asked for the instruction.
23
on to testify that, days later, she and Butler went to a hotel,
where Butler told her that he and the defendant had burned
Thompson's vehicle in the parking lot of the Fifield Elementary
School, that Thompson was still alive, and that he "was going to
have to take [the defendant] out" because the defendant did not
succeed in killing Thompson.
"Under the joint venture exception to the hearsay rule,
'[o]ut-of-court statements by joint criminal venturers are
admissible against the others if the statements are made during
the pendency of the criminal enterprise and in furtherance of
it.'" Commonwealth v. Hardy, 431 Mass. 387, 393 (2000), S.C.,
464 Mass. 660 (2013), quoting Commonwealth v. Clarke, 418 Mass.
207, 218 (1994). "The judge need not make a preliminary finding
that a joint criminal enterprise exists as a precondition to
admitting the evidence." Commonwealth v. Colon-Cruz, 408 Mass.
533, 543 (1990). Instead, he or she may allow the admission of
such statements "on the representation of the prosecution that
the Commonwealth will subsequently introduce sufficient evidence
to show that the defendant was part of the conspiracy," and
instruct the jury that they may only consider the statements if
they find that, at the close of evidence, the Commonwealth has
proved the existence of a joint venture beyond a reasonable
doubt. Commonwealth v. Borans, 379 Mass. 117, 145 n.26 (1979).
24
Here, the judge's instruction to the jury was appropriate,
accurate, and presumably followed by the jury. See Commonwealth
v. Ortiz, 463 Mass. 402, 416 (2012). The evidence clearly
supported a finding by the jury that the defendant and Butler
engaged in a joint venture to rob and murder Tripp.
Although the defendant contends that the joint venture had
ended before Butler's statements were made, the evidence belies
his argument. The defendant's argument that the joint venture
had ended when Butler made his initial statements to DaSilva
"has no merit in light of undisputed evidence that the
challenged statements were made only a few hours after the
crimes." Commonwealth v. Marrero, 436 Mass. 488, 494 (2002).
Immediately before the statements were made, the defendant and
Butler returned to DaSilva's home and disposed of their clothes
in what was inferably an attempt to conceal evidence of the
crimes. Given that the "interests of the [two] men were still
closely bound together, tending to ensure the reliability of
their statements," Colon-Cruz, 408 Mass. at 545, the initial
statements were admissible.
The same is true of the statements made to DaSilva several
days later at a hotel. The jury could have determined that
Butler was still trying to "avoid detection and detention" at
the time, given that he expressed concern that Thompson was
still alive and presumably able to identify him. Clarke, 418
25
Mass. at 219, quoting Colon-Cruz, 408 Mass. at 545.
Additionally, the jury could have concluded that Butler was
attempting to frighten DaSilva and ensure that she did not speak
to the police, given that she was one of only two people who
could implicate him in the murder. See Commonwealth v. Beckett,
373 Mass. 329, 340 (1977) (one joint venturer making statement
to encourage another not to speak to police supports finding
that statement was made in furtherance of joint venture).
DaSilva testified that she was in fact frightened by Butler's
statements, that she delayed speaking honestly to the police due
to her fear, and that she even considered committing suicide.
Indeed, even after Butler and the defendant were arrested, they
telephoned and spoke to DaSilva in an effort to keep her from
speaking to the police. See note 14, supra. Simply put, the
jury could have concluded that all of the statements were made
in an attempt to conceal evidence of the joint venture, and thus
that they fell well within the established exception to the
hearsay rule.
c. Sleeping juror. The defendant next argues that the
trial judge abused his discretion in allowing a ninety year old
juror, whom other jurors believed had been sleeping, to remain
on the jury. Where the judge conducted a thorough voir dire and
determined that the juror was alert throughout the trial, we
find no error. See Commonwealth v. Beneche, 458 Mass. 61, 78-79
26
(2010), quoting Commonwealth v. Brown, 364 Mass. 471, 476 (1973)
(judge has discretion in what action to take when confronted
with issue of sleeping juror, and burden is on defendant to show
that judge's decision was "arbitrary or unreasonable"; burden
not met where defense counsel twice opined that juror was
sleeping and judge disagreed based on observations). See also
Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 179-182 (2009)
(defendant's burden not met where judge remarked that juror
"keeps falling asleep" and called for recess to awaken juror).
d. Medical examiner's testimony. The defendant also
argues that he was denied his right of confrontation under the
Sixth Amendment to the United States Constitution and art. 12 of
the Massachusetts Declaration of Rights when the judge permitted
a substitute medical examiner to testify as to facts contained
in Tripp's autopsy report during his direct examination.
Although the defendant is correct, there was no objection,18 and
we conclude that he suffered no prejudice from the error, and
thus there was no substantial likelihood of a miscarriage of
justice. See Commonwealth v. Emeny, 463 Mass. 138, 145-146
(2012).
18
The defendant's argument that he objected to the
testimony of the substitute medical examiner finds no support in
the record. Counsel did not lodge an objection to the testimony
as a whole, and only objected once on direct examination, in
response to the prosecutor's question whether a forensic
pathologist, armed with the information obtained in this case,
could possibly determine the handedness of the killer.
27
At trial, the Commonwealth presented testimony from Dr.
Richard Evans, a medical examiner and forensic pathologist for
the Commonwealth. Evans testified that he did not perform
Tripp's autopsy, but that it was instead conducted by Dr.
Abraham Phillip. Shortly after completing the autopsy, Phillip
left the medical examiner's office. Evans testified extensively
as to Phillip's determinations and opinions as reflected in the
autopsy report, including Phillip's observations as to the
nature of the wound. Evans added that, on review of all of the
documentation relative to the case, he determined that the cause
of death was the incised wound to Tripp's neck.
As the Commonwealth correctly concedes, Evans should not
have been permitted to testify as to the facts contained in the
underlying autopsy report. See Commonwealth v. Nardi, 452 Mass.
379, 391-394 (2008) (testimony by substitute medical examiner as
to facts and findings in original autopsy report is inadmissible
hearsay). Nevertheless, there was no prejudice.
The improperly admitted testimony consisted of a recitation
of Phillip's observations of Tripp's wounds, facts that were not
in dispute. The defendant raised a third-party culprit defense;
he did not argue that Tripp had not died from a knife wound to
her throat, but that he had not slit her throat. In addition,
the jury heard testimony from police and medical personnel who
testified as to Tripp's wounds, and her medical records
28
detailing the fatal wound were properly admitted, rendering the
erroneously admitted testimony cumulative. See Commonwealth v.
Reavis, 465 Mass. 875, 884-885 (2013) (erroneously admitted
testimony from substitute medical examiner created no
substantial likelihood of miscarriage of justice where
cumulative of other evidence). Simply put, the defendant was
not prejudiced by the improper testimony about the wound that
caused Tripp's death.
The defendant further argues that Dr. Evans improperly
testified as to the time of death and the left- or right-
handedness of the person who administered the wound. These
claims are without merit. As an initial matter, Evans did not
testify as to the time of death on direct examination. On
cross-examination, defense counsel asked if the time of injury
listed on the death certificate -- approximately 2 A.M. -- was
based on any determination Evans had made. Evans responded that
he made no actual determination regarding either the time of
injury or the time of death based on his own observations, but
instead relied on information he received from police. He added
that, while the actual time of death was difficult to determine,
Tripp likely died within minutes of the injury.19,20 A surrogate
19
Because Dr. Abraham Phillip left the medical examiner's
office before completing the autopsy paperwork and death
certificate for Tripp, Dr. Richard Evans completed and signed
both documents based on a review of Phillip's notes and records.
29
examiner may "offer an expert opinion on the time that would
have elapsed between injury and death" based on his or her
"review of an autopsy report by the medical examiner who
performed the autopsy." Reavis, 465 Mass. at 883. Thus, where
Evans did not recite findings by Phillip regarding the time of
death, but rather testified as to his own independent opinion,
there was no error.
Similarly, and contrary to the defendant's assertions,
Evans did not recite any of Phillip's findings regarding the
handedness of the killer. Instead, he testified that, in his
expert opinion, he could not testify to a reasonable degree of
medical certainty as to the left- or right-handedness of the
killer.21 Again, it was proper for Evans to give his medical
opinion based on "documents upon which experts are accustomed to
rely, and which are potentially independently admissible through
appropriate witnesses." Reavis, 465 Mass. at 883.
Even if Evans's testimony regarding the time of death and
the handedness of the killer had been admitted erroneously, the
defendant would not have been subject to a substantial
likelihood of a miscarriage of justice. The time of death was,
20
The death certificate reflects that Tripp was declared
dead at 2:35 A.M.
21
As both the defendant and Butler are left-handed, the
defendant attempted to show that the killer was necessarily
right-handed.
30
at best, collateral to his theory of defense, namely, that
another person had committed the crime. Although the amount of
time Tripp survived after the wound was relevant in considering
whether the murder was committed with extreme atrocity or
cruelty, Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983), the
jury heard other evidence that she was alive when medical
personnel arrived. Further, Evans's testimony did not harm the
defendant, as he did not testify that the killer was necessarily
left-handed. In fact, counsel for Butler extensively cross-
examined Evans about the handedness of the killer, and counsel
for the defendant argued in closing that Evans's testimony
actually supported the theory that a left-handed person (which
both the defendant and Butler claimed to be) could not have
committed the murder. Thus, where the testimony was ambiguous,
at worst, and helpful to the defendant, at best, there was no
prejudice.
e. Prosecutor's closing argument. The defendant next
argues that the judge committed reversible error in not granting
a mistrial after the prosecutor argued in closing that Thompson
said he "loved" Tripp. While the prosecutor's statement was
unsupported by the evidence, we conclude that the error does not
require reversal of the defendant's convictions.
Prior to closing arguments, counsel for Butler requested
permission to argue that the evidence supported a fair inference
31
that the relationship between Thompson and Tripp had
deteriorated, and that Tripp planned to leave Thompson, in an
effort to support his theory that Thompson was responsible for
her death. The Commonwealth argued that the defense should be
precluded from doing so. The judge denied defense counsel
permission to make the argument where evidence of the
deteriorating relationship between Tripp and Thompson had been
excluded from evidence.
During his closing argument, the prosecutor stated the
following: "The bottom line that you're going to have to ask
yourself about Morris Thompson is what motive does he have to
lie? What motive does he have to continually come in here year
after year, however many times he's given statements, to subject
himself to hours of cross examination. What motive? Mr.
Thompson, walking around completely mutilated for the rest of
his life. His eye is missing. He's walking around with one eye
and the remnants of a bullet in his head. He watched his
girlfriend, a woman who he said he loved, brutally murdered
before his eyes, and they want you to believe that he's just
protecting the real killers. Are you kidding?" (Emphasis
added.)
Defense counsel for Butler objected to the prosecutor's
statement and asked for an immediate curative instruction. The
judge took the request under advisement and dismissed the jury
32
for the day. The next day, the judge told the prosecutor, "I
wasn't too keen about the fact that you explicitly said [that
Thompson loved Tripp]." He added, "I think in the overall
context of me trying to put the quash on that type of effort by
the defense, it seems a little disingenuous for you to state it
in the final argument." He thus agreed to specifically instruct
the jury to disregard the prosecutor's statement.22
The judge gave the curative instruction as part of his
final charge to the jury. He instructed them as follows: "Also
there was some statement that Morris Thompson loved Betsy Tripp.
Well, maybe he did and maybe he didn't, but there's no evidence
of it, so you are to disregard, disregard that statement made by
one of the attorneys in the course of the final argument. And
in any event, I stress, arguments are not evidence." Defense
counsel for Butler objected to the instruction, arguing, "When
you said 'maybe he did, maybe he didn't,' I think that dilutes
the importance of telling the jury, you can't consider that, it
was improper. Because I want it stricken from memory as best we
22
The judge noted, "I know also in the overall context of
the case it may be minor . . . but I do think that [defense
counsel] is correct in that I should tell the jury to disregard
that. Now it's a matter of degree. [Defense counsel] would
perhaps prefer the strongest possible corrective, which I don't
think is necessarily called for. But I do think that the
defendants are correct in asking me to draw the jurors'
attention to it and to tell them to disregard it . . . ."
33
can." The judge subsequently denied Butler's counsel's motion
for a mistrial.
On review of the entire transcript, we agree that Thompson
did not expressly testify that he "loved" Tripp.23 We agree with
the judge's assessment that the statement was made in error, a
point that the Commonwealth concedes. In determining whether
such an error requires reversal, we consider "(1) whether the
defendant seasonably objected; (2) whether the error was limited
to collateral issues or went to the heart of the case; (3) what
specific or general instructions the judge gave to the jury
which may have mitigated the mistake; and (4) whether the error,
in the circumstances, possibly made a difference in the jury's
conclusion." Commonwealth v. Lewis, 465 Mass. 119, 130-131
(2013), quoting Commonwealth v. Kater, 432 Mass. 404, 422-423
(2000). Where, as here, the error is properly objected to, we
review the entire record to determine "whether the error was
prejudicial to the point of requiring a reversal of the
conviction." Commonwealth v. Kozec, 399 Mass. 514, 523 (1987).
23
Thompson did testify that he dated Tripp for eight years
and lived with her for seven. He referred to her as a "lovely
lady" and "my girl," and became visibly emotional when shown her
picture. Counsel in closing "may argue fair inferences that
might be drawn from the evidence," Commonwealth v. Murchison,
418 Mass. 58, 59 (1994), and it may indeed be a fair inference
that Thompson loved Tripp. However, the prosecutor did not
argue that Thompson loved Tripp, but that Thompson said that he
loved her. Thompson did not testify as such, despite ample
opportunities to do so over the course of his lengthy testimony.
The statement was therefore error.
34
See Commonwealth v. Yesilciman, 406 Mass. 736, 746 (1990). We
conclude that the judge's specific curative instruction
regarding the statement was adequate to prevent any risk of
prejudice. He explicitly told the jury that it had been argued
that Thompson loved Tripp, that there was no such testimony
given, and that the statement should be ignored. He then
stressed that closing arguments are not evidence. The jury are
presumed to have followed the judge's instructions, Commonwealth
v. Sylvia, 456 Mass. 182, 195 (2010), and specific curative
instructions are ordinarily sufficient to cure any
misstatements. See Commonwealth v. Viriyahiranpaiboon, 412
Mass. 224, 232 (1992); Commonwealth v. Palmariello, 392 Mass.
126, 133 (1984).
In addition, we cannot say that the error, taken in
context, made a difference in the jury's conclusion. It was a
single statement made in the course of a lengthy closing
argument. The prosecutor was attempting to rebut defense
counsel's argument that Thompson was not credible and was
motivated to lie to protect himself or the third-party killer.
The prosecutor properly responded by pointing out that Thompson
had no motive to lie and that he was nearly killed in the same
assault. To be sure, he should have avoided comment on the
nature of the relationship between Thompson and Tripp,
particularly where he had moved to exclude reference to their
35
relationship during the defendant's closing argument. However,
Thompson was exhaustively cross-examined, and defense counsel
ably challenged his credibility throughout the trial. Thus, the
jury's determination on the issue of Thompson's credibility was
not likely to have been swayed by an isolated use of the word
"loved" in closing. See Commonwealth v. Gomes, 443 Mass. 502,
510 (2005) (prosecutor's isolated slip of tongue harmless beyond
reasonable doubt because of strength of Commonwealth's case and
judge's instruction that closing statements are not evidence).
f. Purportedly perjured testimony of Thompson and DaSilva.
The defendant argues that the judge erroneously denied his
motion to dismiss the indictments against him because they were
obtained through perjured grand jury testimony from Thompson and
DaSilva. We find no error.
Prior to trial, counsel for Butler filed a "motion to
dismiss the indictments or to provide alternative relief at the
fourth retrial of this matter." Counsel for the defendant
joined in the motion. The defense collectively argued that
Thompson and DaSilva had made inconsistent statements throughout
their testimony in the three prior trials, and that Thompson
specifically committed perjury before the grand jury when he
denied that he was a drug user, a fact that was contradicted by
the testimony of several other witnesses at both the grand jury
and the prior trials. They contended, "[I]t is beyond question
36
that Morris Thompson is a liar and a perjurer and his testimony
is therefore unreliable and cannot be used at trial." They
argued the same regarding DaSilva's testimony.
For these reasons, the defense asked the judge to dismiss
the indictments as obtained through perjury. In the
alternative, they asked the judge to (1) require the
Commonwealth to provide to defense counsel all statements by
Thompson and DaSilva it knew to be false; (2) require that the
Commonwealth provide notice of any statements it intended to
introduce that were inconsistent with statements made at
previous trials; and (3) allow the defendant to impeach Thompson
and DaSilva with inconsistent statements concerning substance
abuse and prior bad acts. The judge denied the motion.
As a general rule, "a court should not inquire into the
adequacy or competency of the evidence upon which an indictment
is based." Commonwealth v. Salman, 387 Mass. 160, 166 (1982).
However, if "it appears that the integrity of the grand jury
process has been impaired, a defendant may attack the validity
of the indictment by way of a motion to dismiss." Id. It is
undisputed that "the knowing use by the Commonwealth or one of
its agents of false testimony to procure an indictment is a
ground for dismissing the indictment." Id.
When arguing that a prosecutor knowingly presented false
testimony to a grand jury, "[t]he defendant bears the heavy
37
burden of proving that '(1) the evidence was given to the grand
jury knowingly or with a reckless disregard for the truth and
for the purpose of obtaining an indictment, and (2) that the
evidence probably influenced the grand jury's determination to
indict the defendant.'" Commonwealth v. Collado, 426 Mass. 675,
680 (1998), quoting Commonwealth v. Kelcourse, 404 Mass. 466,
468 (1989). The defendant has not met his burden here.
Although the defendant denied being a crack cocaine user
before the grand jury, the prosecutor elicited contradictory
testimony at the grand jury from another witness indicating that
Thompson had, in fact, used cocaine the night of the murder.
Thus, the prosecutor did not attempt to secure an indictment by
leaving the jury with the impression that Thompson had not used
drugs that night. See Commonwealth v. Mayfield, 398 Mass. 615,
621 (1986).
Further, while Thompson and DaSilva both changed their
testimony in some respects at trial, the defendant overstates
the extent of their inconsistencies. Both at the grand jury and
at trial, Thompson's version of the most important facts was
essentially the same. Without fail, he consistently testified
that he went to DaSilva's home on the night of the murder; that
Butler produced a silver gun, robbed him, and ordered him to his
automobile along with the defendant; that Butler and the
defendant used a telephone wire to tie up him and Tripp; that
38
Tripp gave the defendant her ATM card and PIN; that Butler
stayed behind while the defendant attempted to withdraw money;
that the defendant slit Tripp's throat when he was unable to
withdraw any significant amount of money; and that Butler shot
him in the head when he tried to go to Tripp's aid.
Similarly, DaSilva always testified that Thompson went to
her apartment on the night of the murder; that Butler pulled out
a silver gun and left with Thompson and the defendant; that
Butler and the defendant returned to the apartment later, took
off their clothes, and put them in a plastic bag; that blood
appeared to be on a pair of gloves they had; that she spoke to
Butler while she was in the bathroom; that Butler told her he
had slit Tripp's throat because there was no money in her
account; and that he told her that the defendant shot Thompson
when he attempted to help Tripp.
While the defendant correctly points out a number of
differences between the testimony of Thompson and DaSilva given
before the grand jury and in their testimony in the later
trials, "[p]resentation of a witness who recants or contradicts
his prior testimony is not to be confused with eliciting
perjury." Commonwealth v. McLeod, 394 Mass. 727, 743-744, cert.
denied sub nom. Aiello v. Massachusetts, 474 U.S. 919 (1985),
quoting United States v. Holladay, 566 F.2d 1018, 1019 (5th Cir.
1978). Given that both witnesses' versions of the core facts of
39
the case remained essentially the same at all proceedings, and
given that their testimony corroborated each other's stories,
the prosecutor did not knowingly elicit perjury. See
Commonwealth v. Miranda, 458 Mass. 100, 111 (2010), cert.
denied, 132 S. Ct. 548 (2011) (no indication that prosecutor
elicited perjured testimony where "there were some
inconsistencies" between testimony from two witnesses but "many
details corroborated each other").
Just as importantly, the defendant has not met his burden
of showing that Thompson's testimony that he did not use crack
cocaine on the night of the murder "probably influenced the
grand jury's determination to indict the defendant." Collado,
426 Mass. at 680, quoting Kelcourse, 404 Mass. at 468. The core
issue before the grand jury was simply whether the defendant and
Butler murdered Tripp. Where the grand jury heard substantial
evidence regarding the defendant's participation in the murder
presented before the grand jury, it is highly unlikely that the
issue of Thompson's drug use had any impact on the jury's
decision to indict the defendant, especially where evidence was
presented suggesting that he had, in fact, used crack cocaine
that night. See Commonwealth v. Rice, 441 Mass. 291, 310
(2004).
We also find no merit to the defendant's contention that
the judge should have allowed his motion for alternative relief.
40
The defense, having tried the case three times, was fully aware
of the witnesses' inconsistencies prior to trial.24 The
defendant's due process rights were not violated where the facts
that went to the heart of the case remained essentially
unchanged throughout the trials. Further, the defense
extensively and effectively cross-examined both witnesses
regarding their inconsistencies, and counsel for both defendants
adequately argued against Thompson and DaSilva's credibility in
closing. Commonwealth v. Gagliardi, 29 Mass. App. Ct. 225, 236
n.9 (1990) ("Even if the Commonwealth was obligated to inform
the defendant of [any] changes" in testimony, failure to do so
not prejudicial where counsel "effectively cross-examined both
witnesses"). Thus, the judge did not err in denying the
defendant's motion.
g. Press release. After closing arguments, but before the
final jury charge was given, defense counsel informed the court
that the Suffolk County district attorney's office had issued a
press release on its Web site the previous night regarding the
case.25 The press release summarized the facts of the case and
24
The Commonwealth also provided defense counsel with new
statements made by Thompson and DaSilva prior to trial.
25
The trial prosecutor stated that he had not seen the
press release, and there is no reason to believe that he was
involved in the decision to publish it. However, the
Commonwealth is responsible for the conduct of all of the
employees in the Suffolk County district attorney's office, so
41
quoted the prosecutor's closing argument. Of particular
relevance, the press release noted that the trial was the fourth
for both defendants. It stated that "[t]he first proceedings
ended in an [eleven] to one impasse, with jurors favoring
conviction; the second trial ended abruptly when the presiding
judge took ill; and the third ended in another hung jury, this
one favoring conviction [ten] to two." Press Release, Suffolk
County District Attorney's Office, 4th Trial Ends for Duo
Accused of Brutal Murder, Attempt (June 2, 2009).
The prosecutor then informed the judge that an article
about the case had been published in the daily Metro newspaper
that morning. Similar to the press release, the article
referenced the fact that the trial was the fourth for the
defendants, and noted the vote counts of the prior juries. It
also summarized the facts and quoted closing arguments for both
the prosecutor and the defense.
The judge proceeded to ask the jury whether they had read
anything about the case in the media. Three jurors -- jurors
nos. 6, 4, and 1 -- all answered in the affirmative, and the
judge conducted an individual voir dire of each of them. Juror
no. 6 explained that he had read the article, and that it "said
that closing arguments occurred, it had a few quotes from
the prosecutor's lack of involvement does not bear on our
analysis of the conduct.
42
closing arguments, and that basically it was the fourth trial."
Juror no. 4 said that she had simply scanned the article, and
stated that it included "[n]othing [she] didn't know." Juror
no. 1 stated that she did not read the text of the story, and
only saw the headline, which contained no information about the
existence of prior trials or their vote counts. None of the
jurors stated that he or she had taken note of the prior vote
counts, and all three averred that they could remain impartial.
Immediately following this voir dire, neither defense attorney
objected or asked for a mistrial, and counsel for the defendant
simply asked for an instruction that the jury not read anything
about the case in the media. Later that day, following the
final jury charge, counsel for Butler, joined by counsel for the
defendant, moved for a mistrial upon their discovery that the
article referenced the vote counts of the prior juries, and the
judge denied their motion. Significantly, and fortunately for
the Commonwealth, jurors nos. 6 and 4 were ultimately designated
as alternate jurors, and did not participate in deliberations.
The defendant now contends that the district attorney's
office's decision to issue the press release constituted
egregious government misconduct necessitating reversal.
"Dismissal of criminal charges . . . is the most severe sanction
that the court can impose in a criminal case to remedy
misconduct on the part of the Commonwealth." Commonwealth v.
43
Mason, 453 Mass. 873, 877 (2009). Such relief should be
reserved for "only the most intolerable government conduct."
Commonwealth v. Monteagudo, 427 Mass. 484, 485 n.1 (1998),
quoting United States v. Restrepo, 930 F.2d 705, 712 (9th Cir.
1991). However, "[w]e have delineated limited circumstances for
dismissing a complaint due to prosecutorial misconduct: . . .
if the 'governmental conduct resulted in such irremediable harm
that a fair trial of the complaint or indictment is no longer
possible' . . . and where the prosecutor's conduct is otherwise
so egregious that dismissal is warranted to deter similar future
misconduct" (citations omitted). Commonwealth v. Merry, 453
Mass. 653, 665-666 (2009). See Oregon v. Kennedy, 456 U.S. 667,
676 (1982).
We conclude that the Commonwealth's actions were egregious.
While the jurors were likely aware that there had been previous
trials, due to the amount of time that had passed since the
murder and the innumerable references to prior proceedings, the
press release contained vote counts that showed that two prior
juries strongly favored conviction. It also presented the facts
of the case in sensationalized terms26 that exclusively favored
the Commonwealth's theory of the case. Had the press release
26
For example, the press release discussed Tripp's
"horrific death" in the course of a "brutal murder," and cited
the prosecutor's statement that Tripp's "life literally drained
out of her body."
44
been seen by any of the jurors, it easily could have caused a
substantial likelihood of a miscarriage of justice by informing
them that twenty-one of the twenty-four jurors who had
previously heard the evidence believed the defendant and Butler
to be guilty.
The Commonwealth's contentions are unavailing. First,
although the information in the press release had been in the
public domain, the Commonwealth knew, or should have known, that
the jurors would not likely seek out such information, and that
the breakdown of the prior vote counts was highly prejudicial.
Additionally, the Commonwealth's argument that there is no
evidence that the press release was the basis for the article
strains credulity, where it was published the morning after the
press release was issued and referenced the prior vote counts.
In any event, even if the press release had not been the basis
for the article, the Commonwealth should have known that the
press release contained prejudicial information that it made
available for use by the media at a critical moment in the
trial, and thus its decision to issue the press release was, at
best, gross negligence.
However, our examination does not end with a determination
that the Commonwealth's conduct was egregious. The defendant is
entitled to dismissal only where the conduct in question was of
"sufficient significance to result in the denial of the
45
defendant's right to a fair trial." Commonwealth v. Dabrieo,
370 Mass. 728, 743 (1976), quoting United States v. Agurs, 427
U.S. 97, 108 (1975). Here, the judge conducted a thorough voir
dire and determined that only three jurors had seen the article.
Of those jurors, only one took part in deliberations, and she
had read only the headline, which contained no potentially
prejudicial information. We cannot say that the judge abused
his discretion in determining that the jurors had not been
"contaminated by extraneous information." Commonwealth v.
Jackson, 391 Mass. 749, 756 (1984).27
h. Inconsistent verdicts. The Commonwealth proceeded at
trial under the theory that the defendant and Butler were liable
as joint venturers for the death of Tripp in a botched robbery.
Accordingly, the judge instructed the jury as to the elements of
joint venture liability. The defendant was convicted of murder
in the first degree based on the theories of extreme atrocity or
cruelty and felony-murder, and Butler was convicted of murder in
the second degree on the theory of felony-murder. The defendant
argues that the verdicts were inconsistent.
"That breed of 'inconsistent' verdicts which is not allowed
to stand under our cases is small . . . ." Commonwealth v.
27
Our conclusion that the defendant was not deprived of a
fair trial and that the trial judge did not abuse his discretion
in the circumstances might have been different had jurors nos. 6
and 4, who served as alternate jurors, taken part in the
deliberations.
46
Scott, 355 Mass. 471, 475 (1969). "We have applied the so-
called 'rule of consistency' to reverse convictions only where
three elements are present: 'a crime charged that by its nature
requires a combination of individuals; a single trial of all the
participants in the crime; and an acquittal of all but one of
the participants.'" Commonwealth v. Fluellen, 456 Mass. 517,
520 (2010), quoting Commonwealth v. Medeiros, 456 Mass. 52, 59
(2010). Here, the first and third requirements are not met, and
thus the defendant's argument fails.
"We have not applied the rule of consistency to
inconsistent verdicts in joint venture trials (as we have to
those in conspiracy trials), because the first element, a crime
that requires a combination of individuals, is generally not
satisfied." Fluellen, 456 Mass. at 520-521. See Medeiros, 456
Mass. at 59-60 (crime requiring combination of individuals must
be defined by "united act" of two or more individuals, where
such united act is element of crime charged). While joint
venture liability requires a combination of individuals, it is
not an underlying crime. The underlying crime here is murder,
which does not "by its nature require[] a combination of
individuals." Moreover, the defendant cannot meet the third
requirement, which necessitates an acquittal of all but one of
the defendants. Although Butler was convicted of a lesser
offense, he was still found guilty of murdering Tripp.
47
In any event, "inconsistent verdicts for joint venturers
tried together does not undermine our deference to juries."
Fluellen, 456 Mass. at 523. We generally tolerate inconsistent
verdicts "because of the jury's inherent power to indulge their
compassion and to enter into compromises." Id. See Scott, 355
Mass. at 475. Although the defendant contends that the verdicts
in this case "make[] no sense," there was sufficient evidence to
prove that the defendant, and not Butler, fetched a knife from
the kitchen and slit Tripp's throat. The jury acted well within
their discretion in deciding to hold the defendant responsible
to a greater degree than Butler.
i. Jury questions. The defendant also argues that the
judge improperly answered two questions from the jury regarding
joint venture liability. "The proper response to a jury
question must remain within the discretion of the trial judge,
who has observed the evidence and the jury firsthand and can
tailor supplemental instructions accordingly." Commonwealth v.
Delacruz, 463 Mass. 504, 518 (2012), quoting Commonwealth v.
Bell, 455 Mass. 408, 420 (2009).
During the sixth day of deliberations, the judge received
two questions from the jury. The first asked: "If the jury
find[] that there was a joint venture in the commission of a
murder, can the degree of murder differ between the principal
and the joint venturer?" The second asked: "If there is a
48
finding of joint venture, can the theories of murder differ
between the principal and the joint venturer?" After a lengthy
discussion with counsel, the judge answered both questions in
the affirmative, over objection from the defendant. We conclude
that the judge's answers were not erroneous in the
circumstances, based on the evidence before the jury in this
case.28
The jury were required first to determine whether the
defendant and Butler participated in the kidnapping, robbery,
murder, and shooting alleged in this case. Both the defendant
and Butler testified that they had no involvement in the crimes
and were not present when they occurred. Thompson testified to
the opposite, and identified the defendant as the person who
murdered Tripp when the robbery was unsuccessful and Butler as
the person who shot him. If the jury rejected the testimony of
the defendant and Butler as to their noninvolvement in the
crimes, which the jury plainly did, the jury were confronted
with conflicting testimony as to which of the two committed
which of the felonious acts and, ultimately, the degree of
culpability that the jury would assign to their conduct. In
these circumstances, it was proper for the jury to consider the
defendant and Butler as joint venturers, knowingly participating
28
We need not decide whether the proposition of law drawn
from the jury's questions and the judge's affirmative responses
regarding joint venture liability would be correct in all cases.
49
in the commission of some or all of the several crimes charged,
but assigning a different level of culpability in the resulting
murder, so long as the defendant and Butler each had, at a
minimum, the required intent for the crimes of which they were
convicted. Thus, the jury could, in the exercise of their
discretion, permissibly find the defendant and Butler guilty of
a different degree of murder, even based on different theories.
The jury found Butler guilty, and the defendant not guilty,
of assault and battery by means of a dangerous weapon (a
firearm) on Thompson. Taken in context, it is clear that the
jury credited Thompson's account of the events: that the
defendant slit Tripp's throat and Butler shot Thompson. Thus,
it is apparent that they intended to find the defendant guilty
of murder in the first degree under at least the theory of
extreme atrocity or cruelty, and were merely attempting to
determine whether they could hold Butler responsible to a lesser
degree or under a different theory.
The defendant essentially seems to argue that, if he and
Butler were both found guilty of armed robbery as joint
venturers -- a predicate felony for felony-murder in the first
degree -- Butler should also have been convicted of murder in
the first degree. To be sure, the jury could have so found.
However, the jury have the inherent power to enter into
compromises in reaching their verdict. Fluellen, 456 Mass. at
50
523. The verdict here does not indicate that the jury were
confused, but rather that they entered into a compromise in
finding Butler guilty of murder in the second degree where they
believed that the defendant, and not Butler, slit Tripp's
throat. Regardless of the correctness of the judge's answers to
the questions, the defendant was not prejudiced by the jury's
conscious decision to hold Butler responsible to a lesser degree
than they were legally permitted to.29
j. General Laws c. 278, § 33E. We have reviewed the
record in accordance with G. L. c. 278, § 33E, to determine
whether there is any basis to set aside or reduce the verdict of
murder in the first degree, regardless of whether such grounds
were raised on appeal. We find no such reason, and we decline
to exercise our powers under the statute. We therefore affirm
the defendant's convictions. We also reinstate the defendant's
two convictions of armed robbery, which the trial judge had
dismissed as the felonies underlying the felony-murder
conviction and therefore duplicative. The case is therefore
29
The defendant also briefly argues that the absence of
special verdict slips requiring unanimity as to joint venture or
principal liability confused the jury. To the contrary, we have
held that permitting general verdict slips is preferable in
order to mitigate confusion attached to the "false distinction"
between principal liability and joint venture liability.
Commonwealth v. Zanetti, 454 Mass. 449, 464, 466-467 (2009).
Again, where the jury appear to have entered into a compromise
regarding Butler's liability, there was no likelihood of
confusion and no prejudice suffered by the defendant.
51
remanded to the Superior Court for sentencing on these two
reinstated convictions.
So ordered.