Commonwealth v. Gallett , 481 Mass. 662 ( 2019 )

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SJC-12214
COMMONWEALTH vs. ALEXANDER GALLETT
(and five companion cases1).
Suffolk. December 7, 2018. - March 20, 2019.
Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker, JJ.
Homicide. Robbery. Felony-Murder Rule. Constitutional Law,
Admissions and confessions, Voluntariness of statement,
Confrontation of witnesses. Evidence, Admissions and
confessions, Voluntariness of statement, Joint enterprise,
Statement of codefendant, Cross-examination. Telephone.
Joint Enterprise. Practice, Criminal, Capital case, Motion
to suppress, Admissions and confessions, Voluntariness of
statement, Instructions to jury, Comment by judge,
Confrontation of witnesses.
Indictments found and returned in the Superior Court
Department on November 2, 2010.
Pretrial motions to suppress evidence were heard by Charles
J. Hely, J., and Janet L. Sanders, J., and cases were tried
before Linda E. Giles, J.
Jeffrey L. Baler for Alexander Gallett.
Andrew S. Crouch for Michel St. Jean.
1 Two against Alexander Gallett and three against Michel St.
Jean.
2
Sarah Montgomery Lewis, Assistant District Attorney
(Jennifer Hickman, Assistant District Attorney, also present)
for the Commonwealth.
CYPHER, J. On September 1, 2010, Richel Nova (victim) was
robbed and stabbed to death after being lured to a vacant house
in the Hyde Park section of Boston. A jury convicted the
defendants, Alexander Gallett and Michel St. Jean, of murder in
the first degree by reason of extreme atrocity or cruelty and
felony-murder.2 The defendants raise various arguments on
appeal. Gallett contends that the motion judge erred in denying
his motion to suppress statements that he made to police during
his interrogation. St. Jean argues that there was insufficient
evidence to support the murder conviction; he was prejudiced by
the admission of statements from Gallett's redacted police
interrogation; he was prejudiced by the admission of his own
redacted statements; the judge erred in denying his requests for
various jury instructions; and the judge improperly invoked
juror sympathy. In addition, Gallett and St. Jean argue that
the judge erred both in limiting the cross-examination of
certain witnesses and in declining to give a humane practice
jury instruction.
2 The defendants were also convicted of armed robbery and of
breaking and entering in the nighttime with the intent to commit
a felony.
3
For the reasons stated infra, we affirm the defendants'
convictions. After a thorough review of the record, we also
decline to exercise our authority under G. L. c. 278, § 33E, to
grant a new trial or to reduce the verdicts of murder in the
first degree.
Background. We briefly recite the evidence that the jury
could have found, reserving pertinent facts for the discussion
of the defendants' arguments. In addition, we reserve the facts
that the motion judge found for the discussion of Gallett's
motion to suppress.
During the afternoon of September 1, 2010, St. Jean,
Gallett, and Gallett's girlfriend, Yamiley Mathurin, were
together at Aline Valery's house in Hyde Park. Valery overheard
the defendants and Mathurin concocting a plan to rob someone.
Valery left her house, but the defendants and Mathurin stayed
behind.
Gallett and St. Jean both owned knives. Gallett's knife
was larger than a pocket knife. When opened, the blade would
"cover the whole hand." St. Jean's knife was smaller; the
handle and blade both fit into the palm of a hand when opened.
Gallett usually carried a knife whenever he left the house. St.
Jean always carried a knife on his person.
At approximately 8 P.M., the defendants and Mathurin took a
bus to a vacant house in Hyde Park. At about 11 P.M., Mathurin
4
asked Marie Tunis, a resident of an adjacent home, to use her
telephone. Mathurin telephoned a pizzeria and placed an order,
which included pizzas, chicken wings, and soda, to be delivered.
She asked the pizzeria employee if the delivery driver would
have change for a one hundred or fifty dollar bill. Mathurin
gave St. Jean's cellular telephone (cell phone) number as the
call-back number and asked the pizzeria employee to send the
delivery driver to the back door of the address to the vacant
house. At 11:30 P.M., Gallett asked a passerby on the street to
use her cell phone. The passerby testified at trial that
Gallett used her cell phone in front of the vacant house.
Gallett telephoned the same pizzeria.
Soon thereafter, the victim arrived with the order.
Mathurin met the victim in the driveway of the vacant house and
escorted him up the rear staircase. Five minutes later, the
defendants and Mathurin left the house. Mathurin was holding a
pizza box. St. Jean drove Gallett and Mathurin away in the
victim's vehicle.
The group abandoned the victim's vehicle in the rear of a
church parking lot. The pizzeria sign atop the vehicle had been
removed and discarded behind the church. Near or in the
victim's vehicle, officers recovered a white pizza box and empty
bleach and rubbing alcohol bottles. The label on the outside of
the pizza box listed the delivery address as that of the vacant
5
house and had St. Jean's cell phone number listed as the call-
back number.
After abandoning the victim's vehicle, the group returned
to Valery's residence. Upon arriving, the group appeared
anxious and smelled of bleach. St. Jean had a cut on his right
hand and was using a bandana to stop the bleeding. Gallett had
blood on his shirt and on the bottom of his sneakers.
After the defendants and Mathurin had left the vacant
house, Michael Tunis, who had witnessed the group drive away,
investigated the house with his brother and a friend. Upon
entering the home, Tunis discovered blood and chicken wings on
the floor near the entryway. Further into the apartment, in a
room off the kitchen, Tunis discovered the victim lying on his
back. The victim had visible puncture wounds and was
unresponsive. Tunis left the house and telephoned police.
At approximately 12 A.M., police arrived at the vacant
house. Inside the residence, police discovered the victim's
body along with blood all over the floor; a pizza warmer bag; a
bloody chicken wing box; chicken wings; a knife handle; a bloody
and slightly bent knife blade; and blood on the door frame
leading into the kitchen. The victim's pants pockets were
pulled inside out.
6
Within two days, a police investigation led to the arrest
of the defendants and Mathurin.3 At the defendants' trial,
redacted inculpatory statements from both defendants were
introduced in evidence by way of audio-video recordings. In
addition, a plethora of forensic evidence was introduced that
implicated the defendants, including fingerprints and
deoxyribonucleic acid (DNA) found at the vacant house, in the
victim's car, on the victim, on the pizza boxes, on the
defendants' clothing, and on money that Mathurin gave to police
after she was arrested.
At trial, Gallett did not deny his involvement in the
killing. Instead, he argued that the evidence of his admissions
to police coupled with his age -- eighteen at the time of the
murder -- supported a conviction of murder in the second degree
rather than murder in the first degree based on deliberate
premeditation, extreme atrocity or cruelty, or felony-murder.
St. Jean's position was that, although he went with Gallett and
Mathurin to the vacant house and broke into it by punching his
fist through glass on the back door, he did not participate in
the victim's murder or robbery, nor did he share the intent to
commit the crimes.
3 Yamiley Mathurin was indicted for murder, but eventually
pleaded guilty to manslaughter, armed robbery, and breaking and
entering with the intent to commit a felony.
7
Discussion. 1. Gallett. a. Miranda warnings. Two days
after the murder, Gallett was questioned about the crime.
During the questioning, Gallett confessed to the killing. A
redacted audio-video recording of his interrogation was admitted
in evidence at trial. On appeal, Gallett argues that the motion
judge erred in denying his motion to suppress. He claims that
the Commonwealth failed to demonstrate beyond a reasonable doubt
that he voluntarily waived his Miranda rights and voluntarily
and knowingly made the inculpatory statements. Gallett contends
that he was incapable of voluntarily waiving his Miranda rights
because of his age -- eighteen at the time of the murder --
coupled with his low intelligence quotient (IQ). He also
contends that his statements were not made voluntarily because
the interrogating officers induced his statements by
misrepresenting evidence and making false assurances. Finally,
he contends that the statements should have been suppressed
because police delayed his arrest to prevent him from exercising
his right to make a telephone call. The Commonwealth argues
that Gallett was not in custody for Miranda purposes during his
interrogation. Furthermore, the Commonwealth maintains that
even if Gallett were subject to a custodial interrogation, he
was advised of and voluntarily waived his Miranda rights and his
statements were not induced but made knowingly and voluntarily.
8
"In reviewing a decision on a motion to suppress, 'we
accept the judge's subsidiary findings absent clear error "but
conduct an independent review of [the] ultimate findings and
conclusions of law."'" Commonwealth v. Jones-Pannell, 472 Mass.
429, 431 (2015), quoting Commonwealth v. Ramos, 470 Mass. 740,
742 (2015). The motion judge found the following. On the
evening of September 3, 2010, after police had gathered evidence
about the killing of the victim, three officers of the Boston
police department were instructed to locate Gallett and Mathurin
and ask them to accompany the officers voluntarily to the police
station for questioning. Dressed in plain clothes, but with
their badges visible, the officers approached Gallett and
Mathurin. Detective Aaron Blocker spoke with Gallett, and the
two other officers spoke with Mathurin. At the outset, Blocker
informed Gallett that he was not under arrest and was free to
leave. Blocker asked Gallett to accompany him to the police
station to speak with homicide detectives. He told Gallett that
Gallett did not have to go with him. Gallett agreed to go to
the station, but was concerned about Mathurin, who was crying.
Blocker told Gallett that officers would give her a ride.
Gallett rode with two officers in an unmarked police
vehicle to the station. He was not handcuffed at any time
before or during the interrogation. He arrived at the station
9
at 8 P.M. Gallett watched television alone for about one and
one-half hours before the interrogation began.
At 9:37 P.M., Detectives Brian Black and Jeremiah Benton
began a video-recorded interview with Gallett. Prior to
beginning the interview, Black read Gallett the Miranda
warnings. Black read the warnings one at a time. Gallett
listened to the warnings and then read them himself. After each
warning, he initialed the warning and informed the officers that
he understood the warnings.
At first, Gallett denied having any involvement with the
killing. As the interview progressed, Gallett asked Black what
was happening with his girlfriend, Mathurin. Black informed
Gallett that she was being charged with murder, armed robbery,
and breaking into a house. Gallett responded, "Let's talk."
Gallett proceeded to give a detailed account of his and St.
Jean's involvement in the killing and stated that Mathurin just
watched.4 The interview lasted one and one-half hours, at the
end of which Gallett was charged with murder.
The motion judge concluded beyond a reasonable doubt that
Gallett was not in custody for Miranda purposes during his
interview with the officers at the police station, but that even
4 A redacted audio-video recording of the confession was
admitted in evidence at trial. The transcript of the
interrogation was not admitted in evidence.
10
if he had been, there was no threatening or coercive tactics
used by the officers; Gallett made a knowing, intelligent, and
voluntary waiver of his Miranda rights; and his statements to
police were voluntary.
b. Voluntariness. As a preliminary matter, we need not
address whether Gallett was in custody at the time he made the
inculpatory statements because he ultimately received his
Miranda warnings before he made any inculpatory statements.
"Because [Gallett] was advised of, and waived, his Miranda
rights, the issue becomes whether the Commonwealth has proved,
by a totality of the circumstances, that [Gallett] made a
voluntary, knowing, and intelligent waiver of his rights, and
that his statements were otherwise voluntary." Commonwealth v.
LeBeau, 451 Mass. 244, 254–255 (2008). See Commonwealth v.
Medeiros, 395 Mass. 336, 343 (1985) (although voluntariness of
Miranda waiver and voluntariness of statement are distinct
inquiries, totality of circumstances test under each analysis is
same). In reviewing the totality of the circumstances, we
consider factors such as "promises or other inducements, conduct
of the defendant, the defendant's age, education, intelligence
and emotional stability, experience with and in the criminal
justice system, physical and mental condition, the initiator of
the discussion of a deal or leniency (whether the defendant or
the police), and the details of the interrogation, including the
11
recitation of Miranda warnings." Commonwealth v. Mandile, 397
Mass. 410, 413 (1986). "A voluntary statement is one that is
'the product of a "rational intellect" and a "free will," and
not induced by physical or psychological coercion.'"
Commonwealth v. Monroe, 472 Mass. 461, 468 (2015), quoting
Commonwealth v. Tremblay, 460 Mass. 199, 207 (2011). We
conclude that the motion judge's findings and conclusions are
supported by the evidence.
i. Age and IQ. Gallett contends that his age and
relatively low IQ suggest that he did not voluntarily waive the
Miranda warnings and voluntarily make inculpatory statements.
After reviewing the interrogation video recording and hearing
testimony from the interrogating officers, the motion judge
found that Black read the Miranda warnings in a calm and careful
manner and repeatedly informed Gallett that he could stop
answering questions at any time. Furthermore, the motion judge
found that Gallett appeared calm, was responsive to the
questions, and displayed well-organized thinking and rational
decision-making on how to respond. The motion judge concluded
that Gallett understood the warnings, wanted to appear
cooperative, and initially related events that he believed would
be helpful to him.
Based on the evidence presented at the hearing on the
motion to suppress and our independent review of the recorded
12
interview, we conclude that the motion judge properly concluded,
beyond a reasonable doubt, that Gallett made his statements
voluntarily after a knowing and intelligent waiver of his
Miranda rights. Gallett was informed of his Miranda rights and
indicated verbally and in writing that he understood the
warnings. Although his age -- eighteen at the time of the
murder -- is a relevant factor to consider, it is not a
determinative one. Cf. Monroe, 472 Mass. at 471 (defendant's
emotional and physical condition, while not determinative, is
substantial factor). Furthermore, Gallett was an average
student in high school taking college preparatory classes.
While his grades had declined in recent semesters, the motion
judge attributed that to lack of attendance. There is no
indication that the defendant had cognitive limitations that
would affect his waiver and voluntary statements. Regardless,
evidence of cognitive limitations "does not compel a
determination as matter of law" that the defendant did not
"knowingly and willingly waive his Miranda rights and make a
voluntary confession." Commonwealth v. Daniels, 366 Mass. 601,
607 (1975).
In addition, there is no indication that Gallett had
trouble understanding or answering the detectives' questions
during the interview. He was not handcuffed, and the detectives
neither yelled at nor acted aggressively toward him.
13
ii. Misrepresentation, minimization, and assurances.
Gallett argues that the interrogating officers misrepresented
evidence that strengthened their case and made false assurances
that ultimately induced Gallett into making inculpatory
statements. We conclude that the officers did not act
impermissibly.
We have suppressed a defendant's statements in
circumstances where police use trickery or a ruse in obtaining a
confession. Those cases generally have additional circumstances
-- apart from the ruse itself -- that rendered the confession
involuntary. See, e.g., Monroe, 472 Mass. at 469, 472
(detective's use of minimization and false information, coupled
with coercive tactics relating to defendant's son, rendered
confession involuntary); Commonwealth v. Baye, 462 Mass. 246,
257 (2012) (confession suppressed where police not only
exaggerated strength of evidence against defendant, but also
minimized moral and legal gravity of alleged crime; suggested
that if he did not confess, he would be charged with more
serious crimes; mischaracterized applicable law surrounding
charged crime; and finally, after defendant invoked his right to
counsel, dissuaded defendant from consulting with lawyer);
Commonwealth v. DiGiambattista, 442 Mass. 423, 433–436 (2004)
(confession suppressed where, in addition to presenting
defendant with false evidence suggesting his guilt, police
14
minimized defendant's alleged criminal behavior and implicitly
promised leniency as well as alcohol counselling if defendant
confessed). Cf. Commonwealth v. Cartright, 478 Mass. 273, 288
(2017); Commonwealth v. Selby, 420 Mass. 656, 664–665 (1995)
(confession admissible where only improper factor was police use
of false information in which they pretended to have
fingerprints from defendant at scene of crime to secure
confession). See also Commonwealth v. Feeney, 84 Mass. App. Ct.
124, 133-135 (2013).
Here, during the interrogation, officers asked Gallett
whether video footage from inside the bus that dropped him off
in front of the vacant house, his public transit card, or his
cell phone records might reveal his location, movements, and
telephone calls on the night of the murder.5 Officers also
questioned him about possible forensic evidence that could be
found in the victim's stolen vehicle. The officers' tactics
were well within permissible parameters and did not rise to the
level of "intentional misrepresentation[s] that 'may undermine
"the defendant's ability to make a free choice."'" Commonwealth
5 For example, an officer asked Gallett: "[T]here's cameras
on there, on buses, right? . . . So when you get off the bus,
in theory if cameras are hooked up, I can see you getting off
the bus, right?" He also stated: "And then when I pull your
phone records, I haven't pulled them fully yet, I suspect maybe
I'm going to see a phone call or two that's pinging off a tower
right near that house."
15
v. Spray, 467 Mass. 456, 467–468 (2014), quoting Commonwealth v.
Scoggins, 439 Mass. 571, 576 (2003). Their comments did not
impermissibly maximize the apparent strength of their case. Nor
did their questioning impermissibly suggest that they were in
possession of incontrovertible evidence against Gallett.
Likewise, the officer's use of minimization and assurances,
to the extent they were employed, were not improper. Gallett
contends that the interrogating officers minimized the offense
and made assurances by stating: "You know, maybe there's some
reason it happened"; "I sure wouldn't want to be sitting here
having me thinking that you planned out a murder when maybe all
you were planning out was to get a free meal"; and "It's always
better if you have somebody there that can tell you the truth.
It has to be the truth as to what happened up there, okay?"
These questions and statements were "within the bounds of
acceptable interrogation methods." Cartright, 478 Mass. at 288.
Finally, Gallett suggests that the officers coerced him
into believing that his confession would help his girlfriend,
Mathurin. The officers' questioning was as follows:
Gallett: "What's happening to my girlfriend?"
Officer: "What do you think is going to happen to your
girlfriend?"
Gallett: "Nothing."
Officer: "Well I'm going to tell you something. Something
is going to happen to your girlfriend, okay. . . . [S]he's
16
been charged with murder and armed robbery and breaking
into a house. I'm going to be very honest about that,
okay?"
Gallett: "Let's talk."
Gallett proceeded to give a detailed account of the murder and
stated that Mathurin only watched. We conclude that while
Gallett's confession was close temporally to the time he learned
that Mathurin was being charged with murder, the officers'
interrogation tactics were not "rife with threats to [Gallett's]
ability to maintain contact with [Mathurin]." Cf. Monroe, 472
Mass. at 469 (police interrogation characterized as
psychologically coercive where defendant was threatened with
loss of contact with his child). Nor did the tactics suggest
that cooperation with police would result in leniency for
Mathurin. Gallett's will was not overborne, and the tactics did
not rise to the level of psychological coercion. See
Commonwealth v. Scott, 430 Mass. 351, 355 (1999) (although
"[c]oncern for a loved one may, in certain circumstances, render
a confession involuntary," defendant's concern that his sister
would face criminal liability for murder not enough to render
confession involuntary). Cf. Monroe, supra (detectives
threatened defendant with loss of contact with his child by
claiming repeatedly and falsely that if he did not tell them
what happened, his child could be taken away and raised by
17
strangers). The statement by the officer about Mathurin was
accurate and made in answer to a question posed by Gallett.
Based on the totality of these circumstances, we see no
reason to disturb the judge's conclusion that the Commonwealth
established that the defendant knowingly, intelligently, and
voluntarily waived his Miranda rights and that his statements
were voluntary beyond a reasonable doubt.
iii. Telephone call. Gallett argues that his statements
should be suppressed because police purposefully delayed his
arrest to prevent him from making a telephone call. We
disagree.
An arrested person has a statutory right to make a
telephone call. See G. L. c. 276, § 33A. Denying an arrested
person the statutory right to make a telephone call only
necessitates suppression of evidence when the statute is
intentionally violated. See id.; Commonwealth v. Walker, 466
Mass. 268, 278 (2013) (only intentional violation of defendant's
right to make telephone call requires suppression of evidence;
defendant bears burden of establishing intentional violation).
The right to make a telephone call does not accrue when a
defendant is brought in for questioning, but when the defendant
is formally arrested. Commonwealth v. Hampton, 457 Mass. 152,
159 (2010). Gallett was not arrested until his interview
concluded, at which point he was given an opportunity to make a
18
telephone call. Police may defer a decision on whether to
arrest a defendant for nonnefarious purposes. See id. at 155.
There was no error.
2. St. Jean. St. Jean makes several arguments on appeal.
First, he contends that the evidence introduced at trial did not
support his murder conviction. Second, he maintains that he was
prejudiced by the admission of his and Gallett's redacted police
interrogations. Third, he argues that the judge erred in
denying his request for several jury instructions. Fourth, he
contends that the judge improperly invoked juror sympathy when
she related a story about a jury's performance during the
September 11, 2001, attacks.
a. Sufficiency of evidence. St. Jean claims that there
was insufficient evidence that he acted as either the principal
or joint venturer in the killing and that his motion for a
required finding of not guilty should have been allowed. The
Commonwealth contends that there was sufficient evidence to
support St. Jean's conviction under a theory of felony-murder,
with armed robbery as the predicate felony, and extreme atrocity
or cruelty. "We review the denial of a motion for a required
finding of not guilty to determine whether the evidence, viewed
in the light most favorable to the Commonwealth, 'was sufficient
to persuade a rational jury beyond a reasonable doubt of the
existence of every element of the crime[s] charged.'"
19
Commonwealth v. Gomes, 475 Mass. 775, 781 (2016), quoting
Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass.
215 (2007) and 460 Mass. 12 (2011). We do not "examine the
sufficiency of the evidence separately as to principal and joint
venture liability." Commonwealth v. Zanetti, 454 Mass. 449, 468
(2009). Instead, we ask "whether the evidence is sufficient to
permit a rational juror to conclude beyond a reasonable doubt
that the defendant knowingly participated in the commission of
the crime charged, with the intent required to commit the
crime." Id.
To warrant a conviction of felony-murder as a joint
venturer with armed robbery as the predicate felony, the
Commonwealth had to prove that St. Jean was a joint venturer in
an armed robbery and that the victim's death occurred in the
commission or attempted commission of that armed robbery.
Commonwealth v. Rakes, 478 Mass. 22, 33 (2017). To have found
St. Jean guilty of the underlying felony of armed robbery, proof
was required that St. Jean was part of a venture in which at
least one of the coventurers was armed with a dangerous weapon,
either applied violence to the victim's body or put the victim
in fear, and took the victim's property with the intent to steal
it. Id. Absent proof that St. Jean himself was armed, proof
that he knew his coventurer to be armed suffices to satisfy the
standard. Id.
20
The evidence was more than sufficient to permit a
reasonable jury to find that the defendant committed the murder
under a theory of felony-murder. Valery testified that she
overheard the defendants and Mathurin planning to rob someone.
Valery stated that St. Jean said the group was "looking for a
vic." The defendants and Mathurin ordered pizza to be delivered
to a vacant house. Mathurin asked if the delivery driver could
change a one hundred or fifty dollar bill. St. Jean always
carried a knife on his person, and Gallett carried his knife
when he left the house. The jury reasonably could infer that
St. Jean was armed with a knife; thus, the Commonwealth was not
required to prove that St. Jean knew that Gallett was armed.
The victim was lured into the vacant house and stabbed
sixteen times. There was evidence of St. Jean's bloody
footprints inside the house, and St. Jean had the victim's blood
on his jeans. Furthermore, Tunis testified that he saw Mathurin
walk the victim to the rear door of the house and then witnessed
the defendants and Mathurin leave together. The jury could
reasonably infer that St. Jean was inside the house. With St.
Jean driving the victim's vehicle, the defendants and Mathurin
then fled the scene. The defendants and Mathurin abandoned the
vehicle at the rear of a church parking lot. An empty pizza box
was discovered near the vehicle. The pizzeria sign that had
been atop the vehicle was found discarded behind the church.
21
Empty bottles of bleach and rubbing alcohol were discovered near
or in the victim's vehicle. Cf. Commonwealth v. Souza, 428
Mass. 478, 490 (1998) (one who manifests indifference whether
owner recovers possession may be found to intend to deprive
owner of it permanently). Valery testified that the defendants
and Mathurin were nervous and smelled of bleach when she saw
them later that night. Upon discovering the victim's body,
police noticed that the victim's pockets were turned inside out.
Reasonable inferences from the evidence showed that St. Jean was
armed with a knife, either applied violence to the victim's body
or put the victim in fear, and took the victim's property -– the
pizza, money, and vehicle -- with the intent to steal it.
Likewise, the evidence was sufficient to support a
conviction under a theory of extreme atrocity or cruelty. To
warrant a conviction under this theory, the Commonwealth was
required to prove that St. Jean knowingly participated in the
killing, that he intended to cause death or grievous bodily harm
or engaged in an act a reasonable person would know created a
plain and strong likelihood of death, and that the killing was
committed with extreme atrocity or cruelty. Rakes, 478 Mass. at
35. "The evidence suffices to warrant a finding of extreme
atrocity or cruelty if it establishes one or more of the so-
22
called Cunneen factors."6 Id. See Commonwealth v. Cunneen, 389
Mass. 216, 227 (1983).
Fair inferences from the evidence showed that St. Jean was
armed with a knife, planned to rob someone, lured the victim
into the vacant house, and attacked the victim. The victim was
stabbed sixteen times. St. Jean contends that there is no
evidence that he actually stabbed the victim. To the contrary,
St. Jean always carried a knife and had the victim's blood on
his jeans and his sneakers. Furthermore, he had multiple cuts
on his right hand. Although St. Jean's theory at trial was that
he cut his hand by punching a window at the vacant house, St.
Jean told doctors at a subsequent emergency room visit that he
had cut his hand with a pocketknife; told officers during his
interrogation that he was cut with a knife during a fight; and
told his cousin that the injuries to his hands were knife
wounds. Viewed in the light most favorable to the Commonwealth,
the evidence supports the conviction of murder under a theory of
extreme atrocity or cruelty as well.
6 The Cunneen factors are (1) whether the defendant was
indifferent to or took pleasure in the victim's suffering; (2)
the consciousness and degree of suffering of the victim; (3) the
extent of the victim's injuries; (4) the number of blows
inflicted on the victim; (5) the manner and force with which the
blows were delivered; (6) the nature of the weapon used; and (7)
the disproportion between the means used to cause death and
those employed. Commonwealth v. Rakes, 478 Mass. 22, 35 n.8
(2017). See Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983).
23
b. Admission of statements. Gallett did not testify, but
a redacted audio-video recording of his statements was played
for the jury. A redacted transcript of his interrogation was
given to the jury, but only for reference while they watched the
recording. The transcript was collected at the end of the
recording and not admitted in evidence. St. Jean argues that
the admission of the redacted audio-video recording of Gallett's
interrogation violated his constitutional rights under Bruton v.
United States, 391 U.S. 123, 126 (1968), to confront and cross-
examine the witnesses against him. Specifically, St. Jean
claims that gaps in the audio-video recording and blank spaces
in the transcript directly inculpated St. Jean by inviting the
jury to speculate on the identity of the unnamed accomplice.
The Commonwealth maintains that the admission of Gallett's
redacted statements did not create a Bruton issue because it did
not inculpate St. Jean in the crime. Because St. Jean objected
to the admission of his statements at trial, this court will
review for error and, if error, whether that error was harmless
beyond a reasonable doubt. Commonwealth v. Bacigalupo, 455
Mass. 485, 495-496 (2009).
"Introduction of a nontestifying codefendant's
extrajudicial statement that is 'powerfully incriminating' as to
another codefendant violates a defendant's right to confront the
witnesses against him under the Sixth Amendment to the United
24
States Constitution." Commonwealth v. Santos, 463 Mass. 273,
292 (2012), quoting Bruton, 391 U.S. at 135-136. Such
"powerfully incriminating" statements include not only direct
mention of a named codefendant, but also substitutions such as
use of the word "deleted" or some other symbol in place of the
codefendant's name, where the jury will realize that the
statement obviously refers to and implicates a specific
codefendant. See Gray v. Maryland, 523 U.S. 185, 194–197
(1998); Bacigalupo, 455 Mass. at 493-495 (introduction of
nontestifying codefendant's statement that his "friend" was
present at shooting was sufficiently direct reference to
defendant to violate his right to confrontation, notwithstanding
limiting instruction). A codefendant's statement that becomes
incriminating "'only when linked with evidence introduced later
at trial' . . . generally does not offend the Sixth Amendment,
so long as an adequate limiting instruction is given" (citation
omitted). Commonwealth v. Blake, 428 Mass. 57, 60 (1998).
Here, St. Jean asks us to read between the lines and hold
that the gaps in the redacted transcript and audio-video
recording directly inculpated him. We conclude that there was
no Bruton violation because Gallett's redacted statements did
not name expressly, implicate, or obviously refer to St. Jean so
as to be "facially" incriminating. See Gray, 523 U.S. at 196–
197.
25
There were three people involved with the killing of the
victim -- Gallett, St. Jean, and Mathurin. Gallett's statements
made no express reference to St. Jean as his coventurer, and the
blank spaces in the transcript that St. Jean contends were
references to St. Jean easily could have been references to
Mathurin. See Commonwealth v. Vasquez, 462 Mass. 827, 843
(2012). Cf. Bacigalupo, 455 Mass. at 493 (only two people were
on trial for shooting that one codefendant said was committed by
himself and "friend"). It would not have been obvious to the
jury that the blank space was specifically referring to St.
Jean. Cf. id. Moreover, even if we read in specific pronouns
to the transcript, a single pronoun, if not referencing a
specific individual, would not raise a Bruton issue in these
circumstances. See Commonwealth v. Wilson, 46 Mass. App. Ct.
292, 294, 298 (1999) (admission of nontestifying codefendant's
bare statement that "[w]e stabbed" victim did not violate Bruton
by suggesting involvement of one or more other perpetrators).
Although the jury were given a copy of the redacted
transcript so that they could follow along with the audio-video
recording, the transcripts were collected after the recording
was shown and not admitted in evidence. The judge instructed
the jury that the transcripts were not evidence. Even where
pronouns such as "us" and "we" were redacted, the blank spaces
that remained were in the transcripts only. These facts
26
significantly detract from St. Jean's theory that the jury were
able to consider the audio-video recording and the transcript
together to form the opinion that the blank spaces in the
transcript referred to St. Jean.
Where one defendant gives an account of his and a
coventurer's commission of a crime, "it would be a rare case
where the process of redaction did not leave behind some
peculiar language and awkward transitions." Commonwealth v.
Rivera, 464 Mass. 56, 70, cert. denied, 570 U.S. 907 (2013).
"The law is clear, however, that inferential incrimination can
be properly cured by a limiting instruction . . . ." Id. The
judge in this case gave proper limiting instructions on multiple
occasions. Prior to the showing of the redacted audio-video
recording, the judge instructed that "[c]ertain portions of the
statements ha[d] been redacted based on rules of evidence and
other applicable laws," and that the jury were "not [to]
speculate about the gaps or the reasons for the gaps" and not to
"hold the gaps against any party." Despite St. Jean's
contention that the "jurors could not be expected, even in the
face of a limiting instruction, to ignore the . . . gaps in the
statements," the jury are presumed to understand and follow
limiting instructions. See Commonwealth v. Martinez, 476 Mass.
186, 194 (2017). The judge's limiting instructions therefore
27
were sufficient to obviate St. Jean's concern over the gaps.
See Blake, 428 Mass. at 59-63.
Gallett's redacted statements incriminate St. Jean only to
the extent that the jury accepted the other evidence against St.
Jean that places him at the scene of the crime. "This will be
the case in virtually any joint trial in which [a codefendant's]
statement is admitted." Rivera, 464 Mass. at 71. "The
admission of such a statement -- which only implicates the
codefendant circumstantially when combined with other evidence
in the case -- does not offend Bruton or its progeny." Id.
There was no error.
Furthermore, St. Jean argues that the vast scope of the
redactions in both his and Gallett's statements created the
potential for prejudice by inviting the jury to speculate on the
missing portions. We disagree. After a thorough review of the
redacted evidence from both Gallett and St. Jean, we conclude
that there was no error. In our view, the redactions from the
audio-video recordings and transcripts would not lead to
confusion or undue speculation. In addition, St. Jean relied on
his and Gallett's statements as a critical part of his defense.
He maintained that he was at the scene of the crime, but that he
did not participate in the victim's murder or robbery or share
the intent to commit the crimes. In light of Gallett's
confession, St. Jean was able to advance his defense that it was
28
Gallett who robbed and killed the victim while St. Jean was
merely present at the time of the murder. Gallett's redacted
confession and St. Jean's own statements supported St. Jean's
defense at trial.
St. Jean further benefited from redactions in his own
statements that would have contradicted his theory on defense.
For example, in his interrogation St. Jean admitted that he took
the victim's wallet and car keys. This statement was redacted
from the evidence submitted at trial. The statement, if
admitted, would have supported the Commonwealth's theory of
felony-murder with armed robbery as the predicate. Thus, while
there were certain gaps in his interrogation, St. Jean was not
hindered by them.
St. Jean also argues that there were two instances where
the interrogating officers asked Gallett questions, but the
entirety of his response was redacted. St. Jean claims that the
officers' questions are not admissible evidence. Although
questions asked of a witness are not evidence, the officers' two
questions were not accusatory and the redactions that followed
were inconsequential.7 Contrast Commonwealth v. Mejia, 463 Mass.
243, 251 (2012); Commonwealth v. Barbosa, 457 Mass. 773, 799
(2010), cert. denied, 563 U.S. 990 (2011). There was no error.
7 The officers asked: "Where were you?" and "What was
supposed to happen?"
29
c. Jury instructions. St. Jean argues that the judge
erred in declining to give two jury instructions: a
supplemental instruction for armed robbery, and an instruction
on the lesser included offense of use of a motor vehicle without
authority. Because the defendants objected, we review the
denial of the requested jury instructions for prejudicial error.
See Commonwealth v. Henderson, 434 Mass. 155, 158 (2001).
i. Supplemental instruction. St. Jean argues that the
judge erred in denying his request for a supplemental jury
instruction on armed robbery. He requested that the judge
instruct the jury that they "must find that the required intent
to steal coincided with the use of force" to find him guilty of
armed robbery and felony-murder. The judge declined to give the
instruction, stating: "I think it's inappropriate based on the
state of [the] evidence [of this case]."
The judge's instructions on felony-murder with armed
robbery as the predicate offense, as a whole, sufficiently
explained to the jury that the Commonwealth was required to
prove the defendant harbored an intent to steal at the same time
he used force. See Commonwealth v. McGee, 467 Mass. 141, 154
(2014) (where jury charge, as whole, adequately covers issue,
judge is not required to grant particular instruction).
Specifically, the judge instructed the jury that "[t]he actual
force and violence must be the cause of the defendant obtaining
30
possession of the property," and that "the Commonwealth must
prove that the defendant took and carried away the property
against the alleged victim's will with the intent to deprive the
alleged victim of his possessions permanently." These
instructions -- located mere lines apart in the transcript --
necessitate that the "force and violence" coincided with the
"intent to deprive" the victim of his belongings. Furthermore,
the judge's instruction on felony-murder also conveyed to the
jury that the Commonwealth must prove "the killing occurred in
connection with the felony, and at substantially the same time
and place." There was no error.
ii. Lesser included offense. St. Jean further argues that
the judge erred in declining to instruct the jury on use of a
motor vehicle without authority as a lesser included offense of
armed robbery.8 The Commonwealth argues that use of a motor
vehicle without authority is not a lesser included offense of
armed robbery in this case because the indictment listed three
other stolen items9 and that the evidence does not provide a
rational basis for acquitting the defendant of armed robbery in
favor of use of a motor vehicle without authority. The judge
8 In Commonwealth v. Souza, 428 Mass. 478, 494 (1998), we
held that, in certain circumstances, use of a motor vehicle
without authority is a lesser included offense of armed robbery.
9 The indictment listed the following items in the
conjunctive: "$143.00 U.S. Currency, car, car keys, and food."
31
declined to give the instruction because she thought it was
"highly inappropriate when [there were] four alternative items
that are alleged to have been stolen" and that the instruction
did not fit with "the facts and circumstances of this case."
"[W]hen the evidence permits a finding of a lesser included
offense, a judge must, upon request, instruct the jury on the
possibility of conviction of the lesser crime." Commonwealth v.
Roberts, 407 Mass. 731, 737 (1990), quoting Commonwealth v.
Hobbs, 385 Mass. 863, 871 (1982). Where the evidence provides,
however, no "rational basis for acquitting the defendant of the
crime charged and convicting him of the lesser included
offense," the lesser included instruction is not necessary
(citation omitted). Commonwealth v. Gould, 413 Mass. 707, 715
(1992). "Even when evidence is introduced that would justify
conviction for a lesser included offense, the defendant is not
entitled to an instruction thereupon unless the proof on the
elements differentiating the two crimes is sufficiently in
dispute so that the jury may consistently find the defendant
innocent of the greater and guilty of the lesser included
offense" (quotation and citation omitted). Commonwealth v.
Egerton, 396 Mass. 499, 504 (1986). "[A] judge is not required
to instruct on a hypothesis that is not supported by the
evidence" (citation omitted). Gould, supra.
32
Here, the evidence did not warrant a finding of the lesser
included offense of use of a motor vehicle without authority.
The elements differentiating the two crimes were not
sufficiently in dispute so that the jury could consistently find
the defendant innocent of the greater and guilty of the lesser
included offense. See Egerton, 413 Mass. at 715. Specifically,
it was not sufficiently in dispute that the defendant intended
to deprive the victim of his vehicle permanently. The evidence
showed that the defendant drove the vehicle to the back of a
church parking lot, removed the pizzeria sign identifying it as
a pizza delivery vehicle, emptied it out, cleaned it with bleach
and rubbing alcohol, and left it there with a door and two
windows open. Cf. Souza, 428 Mass. at 490. Moreover, as the
judge noted, the indictment alleged St. Jean took more than just
the car. There was evidence that the victim's pockets were
turned inside out, cash was taken, and the group was witnessed
leaving the vacant house with a pizza box. It would have been
inappropriate to give the lesser included instruction where the
evidence and circumstances of the case did not support it.
d. Juror sympathy. On the first day of trial,
September 11, 2013, the judge began by addressing the jury to
acknowledge the anniversary of September 11, 2001. The judge
relayed a story from her past experience on the bench. In sum,
the judge presided over a trial on September 11, 2001, and was
33
forced to evacuate the court house. She told the jury she was
moved that the jurors "all voted unanimously to come back the
very next day." She told the current jury, "I just wanted to
share that story with you because I'm sure you'll appreciate
you're part of the government here, and the government did go on
and has continued to go on and you are the government here. So
I wanted to share that story with you and hope you further
appreciate your vital role in our justice system here in the
Commonwealth of Massachusetts and the United States of America."
On appeal, St. Jean argues that the judge improperly invoked
juror sympathy by relaying her story.
The judge's remarks did not prejudice the defendant. We
are mindful that the "effect on the jury of whatever a judge
says or does may be significant." Commonwealth v. Fitzgerald,
380 Mass. 840, 846 (1980). Here, however, the judge's remarks
were made to emphasize the importance of jury duty. Her
reference that the jury were part of the government was cursory
and nonprejudicial. Moreover, "because the judge's remarks were
neither intemperate nor critical of the attorneys, there was no
danger that the judge exhibited to the jury a bias against the
defendant." See Commonwealth v. Mello, 420 Mass. 375, 392
(1995). There was no error.
3. Gallett and St. Jean. Both defendants raise several
issues where our analysis coincides. First, the defendants
34
argue that the judge impermissibly limited the cross-examination
of two witnesses -- the medical examiner and an interrogating
officer. Second, the defendants claim that the judge erred in
denying their request to give a humane practice instruction to
the jury.
a. Cross-examination. At trial, St. Jean attempted to
cross-examine the Commonwealth's medical examiner on wounds on
St. Jean's right hand. Detective Benton testified that St. Jean
had cuts on "the meaty side on the back of [his] right hand," "a
laceration type injury on the heel near his wrist," and "on the
knuckle." Defense counsel asked the medical examiner, "If a
person were wielding a knife and injured themselves on the knife
that they were wielding, you would expect to see injuries to the
interior of their palm; is that fair to say?" The Commonwealth
objected, and the judge sustained the objection. At sidebar,
defense counsel argued that he should be allowed to question the
medical examiner about any defensive or offensive injuries he
would expect to see in the circumstances raised in his question.
The judge sustained the objection, concluding that she did not
"think this witness [was] qualified to talk about the possible
wounds that might be inflicted on knife wielders."
Similarly, Gallett attempted to cross-examine Benton about
Gallett's reaction to hearing about Mathurin's arrest during his
interrogation. The Commonwealth objected, and the judge
35
sustained the objection. At sidebar, the judge emphasized that
the issue of Gallett's change in behavior already had been
thoroughly vetted at the motion to suppress stage.
On appeal, the defendants argue that the judge violated
their right to confrontation by limiting the cross-examination
of the medical examiner and Benton. The Commonwealth contends
that the judge did not abuse her broad discretion by limiting
either testimony.
Both the Federal and State Constitutions "guarantee a
criminal defendant's right to confront the witnesses against him
through cross-examination." Commonwealth v. Miles, 420 Mass.
67, 71 (1995). The right is "not absolute," however, and "the
scope of cross-examination rests largely in the sound discretion
of the trial judge." Id. In determining whether a limitation
on cross-examination was permissible, "we weigh the materiality
of the witness's direct testimony and the degree of the
restriction on cross-examination." Id. at 72. We will not
overturn the judge's determination unless the defendant can
"demonstrate[] that the judge abused [her] discretion and that
the defendant was prejudiced thereby." Id.
In St. Jean's case, the judge should have permitted St.
Jean to cross-examine the medical examiner about theoretical
wounds on St. Jean's hand. The medical examiner testified that
his duty was to perform postmortem examinations of victims'
36
bodies. His duties included examinations of individuals who had
sustained stab wounds. Given the medical examiner's experience,
it would have been reasonable for the medical examiner to opine
on potential stab wounds on St. Jean's hands. "A medical expert
may testify, in response to a hypothetical question, that the
type of injury he has observed is consistent with the
Commonwealth's theory of how the wound was inflicted, so long as
that theory is based on other evidence already introduced."
Commonwealth v. A Juvenile, 365 Mass. 421, 438 (1974). See
Commonwealth v. Burke, 339 Mass. 521, 530 (1959).
St. Jean is unable, however, to demonstrate that he was
prejudiced by the judge's ruling. First, the judge did not
completely bar St. Jean from cross-examining the medical
examiner about knife wounds. St. Jean questioned the expert on
the position of the attacker based on the victim's wounds, the
direction of each stab wound, and the blood loss that would have
resulted from such wounds. Second, the judge ruled, over the
Commonwealth's objection, that she would allow St. Jean to
present expert testimony regarding the cut to his hand if she
deemed it relevant after the Commonwealth rested. St. Jean
never sought to call such a witness. Third, St. Jean was
permitted to present other evidence to show he did not wield the
knife, such as his right handedness, the lack of his blood on
the knife's handle, and an explanation of the presence of his
37
blood in other places in the house by suggesting he injured his
knuckle by punching a back door window. St. Jean was not
prejudiced.
In Gallett's case, the judge did not abuse her discretion
in limiting the cross-examination of Benton regarding the
voluntariness of Gallett's confession. As the judge noted, the
issue previously was vetted by the motion judge. Gallett
actively took part in the redactions of his interrogation. The
jury viewed a portion of Gallett's police interrogation and
followed along with a redacted transcript. The part of the
recording that showed Gallett's reaction to hearing about
Mathurin and the corresponding lines in the transcript had been
redacted. As discussed in more detail infra, any reference to
Mathurin was redacted from the recording and transcript because,
at the time the redactions were litigated, Mathurin was still a
codefendant. It was not logical to allow Gallett to cross-
examine Benton on evidence that previously had been redacted
from the jury's viewing. The jury would not have had any
context to Gallett's line of questioning. Moreover, the judge
did not further restrict the entirety of Gallett's cross-
examination of Benton. Gallett was able to question Benton
about Gallett's cooperation with the officer's investigation,
which was consistent with his defense at trial that he was
young, cooperative, and remorseful and therefore should be
38
convicted of murder in the second degree. It also would have
been permissible for Gallett to question Benton about Gallett's
demeanor and temperament during the interrogation.
Gallett's reliance on Commonwealth v. Adams, 416 Mass. 55,
60–61 (1993), is misplaced. In Adams, we held that, although
the judge instructed the jury regarding the need to determine
the voluntariness of the defendant's inculpatory statements, it
was error to exclude testimony from the defendant's mother and a
forensic psychiatrist that tended to show that the defendant had
been coerced into a confession by the presence of his mother.
Id. As we examined in a later case, the defendant's mental
health in Adams was a live issue at trial. See Commonwealth v.
Weaver, 474 Mass. 787, 812–813 (2016), aff'd, 137 S. Ct. 1899
(2017). Here, "while we regularly admit expert testimony
regarding the voluntariness of a statement where the defendant
suffers from a mental impairment or mental health issue, there
is no evidence that [Gallett] had cognitive limitations or
suffers from a mental illness that would affect his capacity to
make a voluntary statement." Id. Therefore, there was no
prejudicial error in limiting the cross-examination of Benton.
b. Humane practice instruction. The defendants were
interrogated separately in the immediate aftermath of the
killing. Both defendants made statements that implicated
themselves in the crime. Prior to trial, they both filed
39
motions to suppress their statements, which were denied. During
the motion in limine stage, the defendants participated in
redacting the recordings and transcripts of their
interrogations.
At trial, the defendants requested a humane practice jury
instruction. The judge found that the defendants chose not to
make the voluntariness of their statements a live issue at
trial, and thus, the judge declined to give a humane practice
instruction. Gallett's counsel argued that he attempted to
cross-examine Benton about Gallett's reaction to hearing that
Mathurin was being charged with murder. For evidentiary
reasons, the judge found that Gallett was "clearly . . .
prohibited from introducing any evidence about . . . Gallett's
alleged reaction when . . . Mathurin's name was mentioned" and
that Gallett "adduced no admissible evidence relative to
voluntariness." The judge continued by stating that the line of
questioning to Benton was not foreclosed because counsel could
have asked him "about [Gallett's] behavior." She stated that
Gallett's counsel "elected not to pursue questions which would
have been permissible." Most notably, the judge concluded that
even if Gallett's counsel could argue that Gallett's demeanor
did change in order to put into question the voluntariness of
his statements,
40
"[a]ny statements that he made, supposedly when he was
thinking about . . . Mathurin, . . . [had] nothing to do
with the statements that were actually admitted in this
trial. The ones that were admitted were the ones we saw
[in the audio-video recording] and nothing that I saw [in]
that [recording] would in any way raise the issue of
voluntariness."
St. Jean's counsel took a different approach. He stated
that he "didn't raise [voluntariness] as an issue in the trial
. . . [because he] believe[d] that the video [of St. Jean's
interrogation] spoke for itself, and [he] didn't need to ask
more questions about it."
On appeal, the defendants argue that it was reversible
error for the judge to decline to give a humane practice
instruction. We disagree.
We begin with a brief historical account of the origins of
the humane practice instruction. Under the early English common
law, confessions were admissible at trial without any
restrictions. Morgan, The Privilege Against Self-Incrimination,
34 Minn. L. Rev. 1, 14–18 (1949). Even incriminating statements
that were obtained by torture were not excluded. Id. at 18.
For the past 235 years, however, the common-law rule has been
that a coerced or involuntary confession may not be admitted in
evidence against a defendant at a criminal trial. 2 W.R.
LaFave, J.H. Israel, N.J. King, & O.S. Kerr, Criminal Procedure
§ 6.2(a) (4th ed. 2018) (LaFave). This rule appears to have
been first stated in 1783 in the case of The King v.
41
Warickshall, 168 Eng. Rep. 234 (K.B. 1783). The Warickshall
court stated:
"A free and voluntary confession is deserving of the
highest credit, because it is presumed to flow from the
strongest sense of guilt, and therefore it is admitted as
proof of the crime to which it refers; but a confession
forced from the mind by the flattery of hope, or by the
torture of fear, comes in so questionable a shape when it
is to be considered as the evidence of guilt, that no
credit ought to be given to it; and therefore it is
rejected."
Id. at 235. See LaFave, supra. Undoubtedly, the birth of the
English common law regarding confessions came about because the
use of physical force was causing defendants to confess to
crimes they did not commit. In 1850, this court held for the
first time that under the common law, "[c]onfessions, to be
admissible, must be free and voluntary. They are not considered
voluntary, when obtained by any direct or implied promises of
favor or benefit, to be gained thereby." Commonwealth v.
Taylor, 5 Cush. 605, 610 (1850). Then, in 1854, we stated: "To
exclude [a] confession, there must appear to have been held out
some fear of personal injury, or hope of personal benefit, of a
temporal nature." Commonwealth v. Morey, 1 Gray 461, 463
(1854). In Morey, we expressed our concern about the use of a
defendant's confession as evidence: a defendant "may be
induced, by the pressure of hope or fear, to admit facts
unfavorable to him, without regard to their truth, in order to
obtain the promised relief, or avoid the threatened danger, and
42
therefore admissions so obtained have no just and legitimate
tendency to prove the facts admitted." Id. at 462–463.
The term "humane practice" first appeared in 1885 in
Commonwealth v. Preece, 140 Mass. 276, 277 (1885). In Preece,
we stated that if a judge determines that a confession is
admissible at trial, "the humane practice in this Commonwealth
is for the judge . . . to instruct the jury that they may
consider all the evidence, and that they should exclude the
confession, if, upon the whole evidence in the case, they are
satisfied that it was not the voluntary act of the defendant."
Id.
Over time, the law in the Commonwealth developed into its
current state.10 Nearly one hundred years after Preece, in
Commonwealth v. Tavares, 385 Mass. 140, 150, cert. denied, 457
U.S. 1137 (1982), we extended the humane practice rule to apply
not only to confessions, but to all incriminating statements
We note that prior to its decision in Miranda v. Arizona,
10
384 U.S. 436 (1966), the United States Supreme Court evaluated
the admissibility of a suspect's confession under a
voluntariness test. See Dickerson v. United States, 530 U.S.
428, 432-433 (2000). "The roots of this test developed in the
common law, as the courts of England and then the United States
recognized that coerced confessions are inherently
untrustworthy." Id. at 433. "Over time, [the Federal cases]
recognized two constitutional bases for the requirement that a
confession be voluntary to be admitted into evidence: the Fifth
Amendment right against self-incrimination and the Due Process
Clause of the Fourteenth Amendment." Id.
43
made by the defendant. Now, the settled law in the Commonwealth
is that "if the voluntariness of the defendant's statements
remains a live issue at trial, the judge must submit the issue
of voluntariness to the jury." Commonwealth v. Sunahara, 455
Mass. 832, 834 (2010). "[T]he judge must instruct the jury that
the Commonwealth has the burden of proving beyond a reasonable
doubt that the statement was voluntary and that the jurors must
disregard the statement unless the Commonwealth has met its
burden." Id. at 835, quoting Tavares, supra at 152. To be
considered a live issue, "substantial evidence of
involuntariness [must be] produced." Commonwealth v. Kirwan,
448 Mass. 304, 318 (2007). If voluntariness is not a live issue
at trial, the judge need not submit the question to the jury.
Id. However, the jury may still consider the voluntariness of a
statement in evaluating whether to credit it. This goes to the
jury function of evaluating credibility, not to any role as a
gatekeeper of the admissibility of evidence.
Here, because the judge refused to give a humane practice
instruction, the only question is whether the voluntariness of
the defendants' statements was a live issue at trial to warrant
the instruction; put another way, the question is whether
"substantial evidence" of involuntariness was produced to
warrant a humane practice instruction. See Kirwan, 448 Mass. at
318. We conclude that the issue of voluntariness was
44
insufficiently raised to require the judge to give a humane
practice instruction. See Commonwealth v. Nieves, 429 Mass.
763, 769 (1999).
In Gallett's case, the instruction was not warranted for
predominantly two reasons. First, the focus of Gallett's
defense at trial was that, because of his age, intellect, and
cooperation with police, he should be convicted of murder in the
second degree. In fact, the focus of Gallett's closing argument
was on how his own inculpatory statements warranted a conviction
of murder in the second degree. After discussing Gallett's age
and the evidence that he was forthcoming with police, Gallett's
counsel stated, "I suggest to you [Gallett's involvement]
amounts to murder. I suggest to you that it doesn't amount to
first degree murder." For the jury to have accepted that the
defendant should be convicted of murder in the second degree,
they were required to credit his confession. A humane practice
instruction would have contradicted Gallett's theory of defense.
See Nieves, 429 Mass. at 769. Voluntariness is not a live issue
at trial where "[t]he defense did not focus on involuntariness."
Id.
Second, although Gallett attempted to present evidence
regarding the voluntariness of his statements, he did not
attempt to present admissible evidence. As the judge noted, the
jury were not privy to the portion of his interrogation
45
recording that showed his reaction to the news that Mathurin was
being charged with murder. That part of the recording was
redacted before trial.11
Even if the judge should have allowed Gallett to cross-
examine Benton about Gallett's reaction to hearing the news
about Mathurin, Gallett cannot demonstrate prejudice. Our
review of the transcript suggests that references to Mathurin in
the audio-video recording were redacted prior to the start of
trial -- at a time that Mathurin was still a codefendant -- to
avoid Bruton challenges. If the agreed-upon redactions in the
recording were reexamined prior to the jury seeing it -- after
Mathurin already had accepted a plea offer -- the portion of the
recording with references to Mathurin might have been
admissible. At that time, the issue whether substantial
evidence was produced to question the voluntariness of Gallett's
statements would have been a closer one. See Kirwan, 448 Mass.
at. 318. Nevertheless, the judge did not completely foreclose
questioning Benton about Gallett's demeanor, temperament, or
behavior during the interrogation. The judge only foreclosed
11As stated, at trial, the defendants' video-recorded
interviews were admitted in redacted form and played for the
jury. Redacted transcripts were also given to the jury during
trial, but marked for identification only. The redactions were
made prior to trial and in accordance with a ruling by the
motion judge denying Gallett's motion for relief from
prejudicial joinder.
46
reference to Mathurin. The jury were permitted to consider the
voluntariness of Gallett's statements in their traditional role
as fact finders. The defendant cannot show prejudice.
Nor did St. Jean produce sufficient evidence to warrant a
humane practice instruction. During the charge conference, St.
Jean's counsel admitted that he "didn't raise [voluntariness] as
an issue in the trial . . . [because he] believe[d] that the
video spoke for itself, and [he] didn't need to ask more
questions about it." Moreover, St. Jean's theory of defense was
that although he went with Gallett and Mathurin to the vacant
house, and broke into the house by punching his fist through
glass on the back door, he did not participate in the victim's
murder or robbery, nor did he share the intent to commit the
crimes. This theory aligned with what he told the officers
during his interrogation. St. Jean did not require a humane
practice instruction where his argument to the jury was that his
interrogation statements were evidence that he was not culpable
for the murder. See Nieves, 429 Mass. at 769.
Conclusion. For these reasons, we affirm the defendants'
convictions. Furthermore, we have reviewed the record in its
entirety and see no basis to grant extraordinary relief under
G. L. c. 278, § 33E.
So ordered.