Commonwealth v. Amaral

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SJC-12244
COMMONWEALTH vs. JEREMY AMARAL.
Bristol. April 5, 2019. - June 26, 2019.
Present: Gants, C.J., Lenk, Lowy, Budd, & Cypher, JJ.
Homicide. Constitutional Law, Admissions and confessions,
Voluntariness of statement. Evidence, Admissions and
confessions, Voluntariness of statement, Hearsay, Verbal
completeness, Expert opinion, Photograph. Practice,
Criminal, Admissions and confessions, Voluntariness of
statement, Instructions to jury, New trial, Capital case,
Jury and jurors, Examination of jurors, Voir dire, Argument
by counsel, Assistance of counsel. Jury and Jurors.
Indictments found and returned in the Superior Court
Department on May 2 and June 27, 2013.
A pretrial motion to suppress evidence was heard by Renee
P. Dupuis, J; the cases were tried before Gary A. Nickerson, J.,
and a motion for a new trial, filed on December 29, 2017, was
considered by him.
Susan J. Baronoff for the defendant.
Erica G. Sylvia, Assistant District Attorney, for the
Commonwealth.
BUDD, J. Following a jury trial, the defendant, Jeremy
Amaral, was convicted of murder in the first degree on the
2
theories of deliberate premeditation, extreme atrocity or
cruelty, and felony-murder (with armed robbery as the predicate
offense) in connection with the death of Tiffany Durfee.1 In
this consolidated appeal from his convictions and from the
denial of his motion for a new trial, the defendant challenges
the denial of his motion to suppress his statements to police,
instructions given to the jury, and the improper exclusion of
certain hearsay evidence. The defendant further argues that the
judge improperly denied him an evidentiary hearing on his motion
for a new trial. Alternatively, the defendant requests that we
exercise our authority under G. L. c. 278, § 33E.
We affirm the defendant's convictions and the order denying
his motion for a new trial. Further, after a review of the
entire record, we decline to reduce the verdict of murder in the
first degree to a lesser degree of guilt or to set aside the
defendant's convictions under G. L. c. 278, § 33E.
Factual background. We summarize the facts as the jury
could have found them, reserving certain details for discussion
of specific issues.
On the afternoon of March 13, 2013, the victim was found
dead in her living room with her throat cut. Her two young
1 The defendant also was convicted of misleading a police
officer.
3
children were found unharmed in their bedroom. A flat screen
television was missing from her home.
Based on telephone records, investigators learned that
several calls were made between the victim's and the defendant's
cellular telephones (cell phones) beginning at approximately 11
P.M. on March 12 and continuing into the early morning of March
13. On March 14, after learning that police were looking for
him, the defendant appeared at the police station. With him was
Michael Garcia, a close childhood friend. The two were
interviewed separately and gave similar accounts of being at the
victim's home in the early morning hours of March 13. Both told
police that they took one of the victim's televisions (with her
consent) to exchange it for cash and "crack" cocaine. The two
claimed that after smoking the cocaine with the victim, they
then invited another individual, whom we shall call David, to
the apartment to purchase the victim's second television. The
defendant and Garcia told police that they left David alone with
the victim and implicated David in the victim's death.
After confirming that David had an alibi, investigators
spoke again to the defendant, and learned that the defendant
sold the victim's television to an individual named Jason
McCarthy. McCarthy testified that when the defendant arrived at
his home with the television, the defendant's sweatshirt was
stained red. When McCarthy asked the defendant what happened,
4
he replied, "I just murdered somebody . . . . No. I was
painting." When police confiscated the television, it was
smeared with red-brown stains that tested positive for the
presence of blood.
The defendant and Garcia subsequently were arrested and
charged with misleading the police. When Garcia learned that
the television was stained with blood, he admitted to police
that he had lied about having been with the defendant in the
victim's apartment. Rather, Garcia said that the defendant had
telephoned Garcia from the victim's home at approximately 2 or 3
A.M. to ask for a ride so that the defendant could bring the
television to McCarthy.
As part of the investigation, the defendant and Garcia's
hands were swabbed; the defendant's hands tested positive for
the presence of blood. Investigators recovered a bloody T-shirt
found in a trash can in McCarthy's yard, and a bloody sweatshirt
and bloodstained shoes from a second location based on a lead
from Garcia. Deoxyribonucleic acid (DNA) testing of the blood
stains on the clothing and shoes did not exclude the victim as
the source. Tests on samples containing DNA from more than one
person also did not exclude the defendant and the victim,
although they did exclude Garcia, David, and McCarthy, among
others. Further, the soles of the shoes were consistent with
footprint impressions found in blood in the victim's apartment.
5
The defendant, who testified at trial, claimed that
although he was present, it was Garcia who killed the victim
during an argument over cocaine. The defendant further
testified that the story he told police in his first interview
was made up to protect Garcia.
Discussion. 1. Statements made to investigators. The
defendant claims that the motion judge erred by declining to
suppress the videotaped statements he made to investigators
because he was not provided with a recitation of the Miranda
warnings prior to questioning and because his statements were
made involuntarily. "'When reviewing the denial of a motion to
suppress, we accept the [motion] judge's findings of fact . . .
absent clear error,' but we independently determine 'the
correctness of the judge's application of constitutional
principles to the facts as found.'" Commonwealth v. Molina, 467
Mass. 65, 72 (2014), quoting Commonwealth v. Tremblay, 460 Mass.
199, 205 (2011). In light of the deference owed the judge's
findings, and on our own review of the record, we affirm the
order denying the defendant's motion to suppress.
We summarize the detailed findings of fact made by the
motion judge. The defendant and Garcia voluntarily appeared at
the police station with Garcia at approximately 4 P.M. on
March 14, 2013, to be interviewed. The two were escorted to
separate interview rooms, but they could converse freely prior
6
to the start of the interviews. The defendant also placed
telephone calls before the interview began, and he telephoned
his mother during a break in the questioning to make dinner
plans. The defendant told investigators at the start of the
interview that he had to "get straight" prior to speaking with
police, which was interpreted to mean that he had ingested drugs
before arriving at the station. However, he did not smell of
alcohol, slur his speech, or otherwise appear to be under the
influence of an intoxicating substance. He was "coherent, lucid
and talkative." He "clearly manifested an understanding of the
conversation" and answered questions appropriately. At some
points he expressed wariness of supplying some information for
fear of being labeled a "rat"; at others, he attempted to
leverage his willingness to cooperate for "consideration" in
connection with a pending probation matter.
The tone of the interview was "cordial, polite,
nonaggressive, and heavily influenced and controlled by the
defendant." The defendant, a college graduate, had had previous
experience with police prior to the interview and had waived his
Miranda rights before speaking to police. Early on,
investigators informed the defendant that he was not a suspect
in the murder, but that they were attempting to piece together a
timeline of the victim's death. The defendant was cooperative
with the investigators: he voluntarily gave them his cell phone
7
and signed a consent form to allow them to search it. He also
allowed police to photograph the absence of injuries on his
hands and to swab him for blood residue.
The defendant never was told that he was in custody or that
he could not leave the station. Although one of the officers
conducted a quick pat-down of the defendant at one point, that
officer did so only when the officers observed the defendant
scratching himself, which the defendant explained as a
manifestation of his heroin addiction. During two breaks, the
defendant was escorted to the bathroom and outside to have a
cigarette.
After one break, the investigators told the defendant that
Garcia had given them more information than the defendant had
provided and suggested that he was not telling them the complete
truth. It was then that the defendant indicated that David was
the last person to see the victim alive. The defendant further
offered to "set up a drug deal" so that investigators could
investigate David. The investigators agreed and the defendant
left the station to complete the controlled drug purchase with
David.
After the controlled drug purchase, the defendant
accompanied police back to the station and again was seated in
the meeting room, but he was not told that he could not leave
the station. Shortly after 9 P.M., police held a second
8
interview with the defendant, in which he told them that the
first television had been sold to Jason McCarthy. The second
interview lasted for a few minutes. Police confirmed David's
alibi for the night of the murder. They also learned from
McCarthy that the first television had blood on it and that
McCarthy had seen the defendant with blood on him when he
delivered it. After police received this information, a third
interview with the defendant was conducted. At the start of
that interview, the defendant invoked his right to counsel, and
he was arrested.
a. Miranda warnings. Miranda warnings are required only
when a suspect is subject to custodial interrogation.
Commonwealth v. Jung, 420 Mass. 675, 688 (1995). The defendant
bears the burden of proving that he was in custody for the
purposes being entitled to a recitation of Miranda warnings
prior to questioning. Commonwealth v. Girouard, 436 Mass. 657,
665 (2002).
An interview is custodial where "a reasonable person in the
suspect's shoes would experience the environment in which the
interrogation took place as coercive" (citation omitted).
Commonwealth v. Cawthron, 479 Mass. 612, 617 (2018). Four
factors are considered in determining whether a person is in
custody:
9
"(1) the place of the interrogation; (2) whether the
officers have conveyed to the person being questioned any
belief or opinion that the person is a suspect; (3) the
nature of the interrogation, including whether the
interview was aggressive or, instead, informal and
influenced in its contours by the person being interviewed;
and (4) whether, at the time the incriminating statement
was made, the person was free to end the interview by
leaving the locus of the interrogation or by asking the
interrogator to leave, as evidenced by whether the
interview terminated with an arrest."
Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). We
address these factors in turn.
i. The location of the interview. The defendant was
interviewed at the police station, a location that may be
considered coercive; however, he arrived of his own volition.
See Commonwealth v. Sparks, 433 Mass. 654, 657 (2001) (interview
that took place at police station was not custodial where
defendant arrived and left voluntarily). The defendant argues
that the fact that police were attempting to locate him prior to
his appearing at the station for an interview put pressure on
him to appear. Assuming this is true, it does not alter the
objective circumstances of the interview discussed infra. See
Groome, supra at 212. See also Commonwealth v. Brum, 438 Mass.
103, 112 (2002).
ii. Whether the police conveyed a belief that the
defendant was a suspect. Investigators indicated to the
defendant that he was a witness, rather than a suspect, until
the third interview, at which point the defendant invoked his
10
right to counsel and questioning stopped. Even after speaking
with Garcia and confronting the defendant about his not being
completely forthcoming, investigators did not tell the defendant
that there was any incriminating evidence against him, or that
he was under suspicion. The officers only communicated that
they wanted to know more about the events leading up to the
victim's death. See Commonwealth v. Morse, 427 Mass. 117, 123-
124 (1998) (investigator's suspicions concerning interviewee
immaterial unless they influence objective conditions of
interrogation).
iii. The nature of the interview. The interview was
conducted in a calm and cordial manner, and the defendant
heavily influenced its direction. The defendant apparently felt
comfortable enough with the investigators to ask them to put in
a good word with his probation officer, and later to suggest
that police conduct a controlled drug purchase in which he would
participate in order for the officers to investigate David. We
conclude, as the motion judge did, that the environment was not
one in which a reasonable person in the defendant's position
would not feel free to leave.2
2 The defendant's argument that the motion judge
impermissibly relied on the defendant's subjective intent and
motivation misses the mark. A motion judge is not forbidden
from taking subjective facts into account, especially to the
extent that those facts influenced the objective conditions of
an interrogation. See, e.g., Commonwealth v. Groome, 435 Mass.
11
iv. Freedom to leave. Until the point at which he was
arrested, the defendant never was told he was in custody, and in
fact he made dinner plans during a telephone conversation with
his mother. Further, he left the station without a police
escort to participate in a controlled drug purchase.
Considering the above factors in total, we agree with the
motion judge that the defendant was not in custody during the
questioning, and thus providing the defendant with Miranda
warnings before he was interviewed was not mandated.
b. Voluntariness. The right to due process under the
Fifth and Fourteenth Amendments to the United States
Constitution requires that admissions be voluntarily made,
without coercion, to be admissible. Commonwealth v. Magee, 423
Mass. 381, 387-388 (1996). Commonwealth v. Brady, 380 Mass. 44,
48, 52 (1980). The Commonwealth has the burden to prove beyond
a reasonable doubt that, "'in light of the totality of the
circumstances surrounding the making of the statement, the will
of the defendant was [not] overborne,' but rather that the
statement was 'the result of a free and voluntary act.'"
Commonwealth v. Baye, 462 Mass. 246, 256 (2012), quoting
Commonwealth v. Durand, 457 Mass. 574, 595-596 (2010), S.C., 475
Mass. 657 (2016), cert. denied, 138 S. Ct. 259 (2017).
201, 212-213 (2001); Commonwealth v. Morse, 427 Mass. 117, 124
(1998).
12
In considering whether a statement was made voluntarily,
relevant factors include "conduct of the defendant, the
defendant's age, education, intelligence, and emotional
stability, experience with and in the criminal justice system,
[and] physical and mental condition" (citation omitted).
Commonwealth v. Tremblay, 480 Mass. 645, 661 (2018). Here the
defendant is a college graduate and previously had been exposed
to police questioning in a different context. Although the
defendant apparently had ingested heroin prior to the interview,
he was alert and oriented, and he did not appear to be under the
influence of any intoxicating substances. See Commonwealth v.
Silanskas, 433 Mass. 678, 685 (2001) (consumption of
intoxicating substances without more does not render statement
involuntary); Commonwealth v. Ward, 426 Mass. 290, 294 (1997)
(same). The defendant answered questions appropriately, and his
responses indicated that he was rational and in control of his
faculties.
The defendant demonstrated his understanding by providing
information to exculpate himself and inculpate another. See
Commonwealth v. McCowen, 458 Mass. 461, 472 (2010) (in finding
voluntariness of statements, judge was entitled to consider fact
that defendant attempted "to talk his way out of his
predicament"), and cases cited. He also suggested, and then
participated in, a controlled drug purchase. Based upon the
13
record before us, we agree with the motion judge that the
defendant's statements were voluntarily made.
Because the defendant's statements to the investigators
were not made in violation of any of his constitutional rights,
we do not find that the motion judge erred in declining to
suppress them.
2. Exclusion of hearsay evidence. At trial, the
defendant's mother testified that, on the night of the killing,
the defendant telephoned her to ask if she would buy a
television. On cross-examination, defense counsel elicited
further testimony about this conversation. The defendant's
mother stated, "He wanted to know if I wanted to buy [the
television], and I said 'Jeremy, I told you not to call me about
anything, especially if it's stolen.'" She continued, "[I]n the
background somebody's -- ," at which point the Commonwealth
objected on hearsay grounds.
The judge sustained the objection. At sidebar, defense
counsel proffered that the defendant's mother would testify that
she heard a female voice in the background saying, "No, it's not
stolen; it's my TV," and argued that this statement was
admissible under the doctrine of verbal completeness. The judge
ruled that the doctrine of verbal completeness was not
applicable and did not permit the witness to testify as to the
substance of any statements by the voice in the background.
14
On appeal, the defendant reiterates that the hearsay
statement from an unidentified third party should have been
admitted, and that its exclusion constituted prejudicial error.
We disagree.
Under the doctrine of verbal completeness, when a party
introduces a portion of a statement, "a judge has discretion to
allow admission of other relevant portions of the same statement
or writing which serve to clarify the context of the admitted
portion" (quotations, citation, and alteration omitted).
Commonwealth v. Crayton, 470 Mass. 228, 246 (2014). The
doctrine allows an adverse party to offer an additional
statement to contextualize the one already admitted.
Commonwealth v. Aviles, 461 Mass. 60, 75-76 (2011). For a
hearsay statement to be admitted under the doctrine, an adverse
party must show that the additional statements are "(1) on the
same subject as the admitted statement; (2) part of the same
conversation as the admitted statement; and (3) necessary to the
understanding of the admitted statement." Crayton, supra at
247, quoting Aviles, supra at 75. See Commonwealth v. Clark,
432 Mass. 1, 15 n.8 (2000) (portions of statement sought to be
introduced must "qualify or explain" segments previously
introduced). Relevance alone is insufficient to support
admission. See Commonwealth v. Eugene, 438 Mass. 343, 351
(2003); Mass. G. Evid. § 106 (2018). The doctrine aims to
15
prevent one party from presenting "a fragmented or misleading
version of events" to the fact finder. Crayton, supra at 246,
quoting Aviles, supra.
The proffered statement must meet each component of the
doctrine of verbal completeness to be admissible. Crayton, 470
Mass. at 247. Concerning the first inquiry here, because all of
the statements involved the television, the first requirement
was met.
Concerning the second inquiry, here, it was unclear whether
the proffered statement was part of the same conversation as
that between the defendant and his mother. The defendant did
not make an offer of proof as to any other details about the
telephone call -- such as the identity of the third party -- and
there was no indication that either the defendant or his mother
ever addressed the third party. See Mass. G. Evid. § 103(a)(2)
(2018).
Finally, concerning the inquiry whether the proffered
statement was necessary to the full understanding of the
admitted statements, Crayton, 470 Mass. at 247, relevance by
itself does not provide a sufficient basis for admissibility
under the doctrine of verbal completeness. Eugene, 438 Mass. at
351. Instead, the statement must "serve to clarify the context
of the admitted portion." Clark, 432 Mass. at 14. See Crayton,
supra at 247 n.3; Commonwealth v. Watson, 377 Mass. 814, 833
16
(1979), S.C., 409 Mass. 110 (1991). Here, the defendant argues
that the third-party statement, "No, it's not stolen; it's my
TV," was necessary to explain and qualify the defendant's offer
to sell the television because it tends to show the owner's
consent to the sale. The defendant also argues that without
admitting the statement in question, the jury might have
inferred that his silence was an implied, adoptive admission
that the television was, in fact, stolen. See Crayton, supra at
247.
In Crayton, 470 Mass. at 246-247, we held that given the
admission of the defendant's acknowledgement that he used a
certain computer, it was an abuse of discretion under the
doctrine of verbal completeness to exclude the defendant's
denial that he used the computer to view child pornography.
In that case, the denial was necessary to understand the
admitted statements because, without it, a reasonable jury
"might have understood the other statements the defendant made
to the detectives as an implied admission to having viewed the
child pornography." Id. at 247.
However, here, the denial of wrongdoing was made by an
unidentified third party. See id. at 247-248 (further
statements admitted from same person to contextualize that
person's previously admitted testimony). See also Aviles, supra
at 75 (same). Although the doctrine of verbal completeness does
17
not require that a proffered statement be from the same speaker
as the admitted statement, a trial judge nonetheless reasonably
could find that the unprompted comment by the third party did
not shed light on any statement attributed to either the
defendant or his mother.
Moreover, without any evidence as to the identity of the
third party declarant, the proffered statement is especially
vulnerable to the foundational problems associated with hearsay
-- that is, questionable reliability and the speaker's
unavailability for cross-examination. See Commonwealth v. Del
Valle, 351 Mass. 489, 491 (1966), S.C., 353 Mass. 684 (1968)
(theory underlying exclusion of hearsay is that "the trier of
fact is forced to rely upon the declarant's memory,
truthfulness, perception, and use of language not subject to
cross examination"); 2 McCormick on Evidence § 245 (K.S. Broun
ed., 7th ed. 2013) (hearsay disfavored because value of
testimony depends on "perception, memory, narration, and
sincerity" of witness, which are difficult to evaluate with
unavailable declarant).
Thus, because the defendant was unable to demonstrate
either that the proffered statement was part of the same
conversation as the admitted statement or that it was necessary
to the understanding of the admitted statement, the judge did
not abuse his discretion by excluding it. See Commonwealth v.
18
Morin, 478 Mass. 415, 432 (2017) (judge did not abuse discretion
"in finding that there was an inadequate foundation to permit
the introduction of this [hearsay] evidence").
3. Jury instructions. The defendant contends that the
judge erred by declining to give a humane practice instruction
sua sponte, and by declining to provide the jury with complete
instructions on joint venture.
a. Humane practice instruction. Where the voluntariness
of a defendant's admission is in question, under the humane
practice rule, the judge will instruct the jury that the
prosecution must prove that the defendant's statements were
voluntary beyond a reasonable doubt. See Commonwealth v.
Gallett, 481 Mass. 662, 686 (2019), quoting Commonwealth v.
Sunahara, 455 Mass. 832, 835 (2010).
Here, prior to trial, the defendant moved to suppress the
statements he made to police partially based on grounds of
voluntariness: he claimed to have been under the influence of
narcotics at the time of the interrogation. Although, in
denying the defendant's motion to suppress, the motion judge
found that the defendant's statements were voluntary, the
defendant argues that the jury could have found otherwise, and
now asks us to conclude that the trial judge's failure to give
19
the instruction sua sponte resulted in reversible error.3 This
we cannot do.
A humane practice instruction is required when the
voluntariness of a confession or admission is a live issue at
trial, even in the absence of a request from defense counsel.
Commonwealth v. Kolenovic, 478 Mass. 189, 198-199 (2017).
However, a judge does not have an obligation to instruct on
humane practice unless voluntariness actually "is made a live
issue at trial." See Commonwealth v. Alicea, 376 Mass. 506, 523
(1978).
There was no indication that voluntariness was part of his
defense at trial. Trial counsel did not present voluntariness
as an issue in his opening statement, did not ask the defendant
about the voluntariness of his statements during the defendant's
direct examination, and did not raise the question of
voluntariness during the closing argument. See Alicea, 376
Mass. at 523. To the contrary, trial counsel made clear that
voluntariness was not in play. At two points during the trial,
the judge asked defense counsel whether voluntariness was an
issue as it pertained to the humane practice rule. The first
3 Because trial counsel did not request a humane practice
instruction (in fact, he specifically declined one), any error
would be reviewed for a substantial likelihood of a miscarriage
of justice. Commonwealth v. Dykens, 438 Mass. 827, 831 (2003).
As discussed infra, we perceive no error.
20
time the judge inquired was prior to the Commonwealth's
presentation of the video recording of the defendant's statement
to investigators; the second time was during the charge
conference. Each time, trial counsel responded in the negative.
As the defendant did not make the voluntariness of his
statement to police a live issue at trial, and, in fact,
indicated that it was not a live issue, the judge did not err by
declining to give a humane practice instruction sua sponte. See
Commonwealth v. Nieves, 429 Mass. 763, 769-770 (1999) (despite
evidence of defendant's drug use or drug withdrawal prior to
arrest and confessions, "the issue of voluntariness was not
raised with sufficient point to require an express admonition to
the jury by the Court" [citation and quotations omitted]).
b. Joint venture instruction. At trial, defense counsel
included a joint venture instruction in a written request for
jury instructions. However, at the charge conference, he did
not ask for the instruction. The defendant now claims that he
was entitled to such an instruction. This argument lacks merit.
First, there was no evidence presented at trial of a joint
venture. See Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009)
(joint venture instruction appropriate "[w]hen there is evidence
that more than one person may have participated in the
commission of the crime"). The Commonwealth's theory of the
case was that the defendant killed the victim alone. The
21
defendant's theory of the case was that, although he was present
when the victim died, it was Garcia who killed her and that the
defendant had attempted to intervene. Because joint venture was
not raised, no joint venture instruction was warranted. See
Commonwealth v. Gulla, 476 Mass. 743, 748 (2017) (judge need not
instruct jury sua sponte on defense theory that defense counsel
had made tactical decision not to pursue and where there is "a
paucity of evidence to support such a defense").
Second, the concerns that the defendant raises on appeal
were actually addressed by the instructions that the judge gave.
The defendant argues that although the judge instructed that
mere presence and knowledge of the crime are not enough to
convict, the instruction did not go far enough because it did
not inform the jury that in order to demonstrate a joint
venture, the Commonwealth had to prove beyond a reasonable doubt
that the defendant knowingly participated in committing the
crime with the requisite intent, and that mere association
before and after the crime or a failure to prevent the crime is
not sufficient to prove joint venture.4
4 The instruction with which the defendant finds fault was
as follows:
"Before I launch into the various elements of murder, let
me state something quite clearly. Mere presence at a crime
scene is never enough to convict someone. Presence at a
crime scene and knowledge of the crime is not enough to
22
In fact, the judge instructed the jury that, in order to
find the defendant guilty, they had to find that there was
evidence of each element of murder in the first degree beyond a
reasonable doubt, including intent. The judge also explained
the intent requirements for each theory of murder in the first
degree that was presented to them. There was no question from
the judge's instructions that the jury had to have found beyond
a reasonable doubt that the defendant had the requisite intent
to commit murder in order to find him guilty of that crime.
Conversely, the judge made clear that if the jury did not find
each element of each offense beyond a reasonable doubt, then
they should acquit the defendant of that offense. Further, the
judge also repeatedly reminded the jury that it was the
defendant's actions, and not the actions of another, that they
were to assess.
Finally, a joint venture instruction would not have
benefited the defendant; to the contrary, it would have provided
the jury with an alternative basis on which to convict him. See
Commonwealth v. Soares, 377 Mass. 461, 470, cert. denied, 444
U.S. 881 (1979) ("The theory underlying joint enterprise is that
one who aids, commands, counsels, or encourages commission of a
crime while sharing with the principal the mental state required
convict. To convict, you have to satisfy the elements of
the particular offense that you are considering."
23
for the crime is guilty as a principal"). The joint venture
instruction from the Zanetti decision is not given in lieu of an
instruction on the principal offense, but is instead
incorporated into the principal offense instruction. Indeed,
the purpose of the Zanetti instruction is to allow a jury to
convict where it "unanimously finds that the defendant
participated in the crime charged with the required intent but
are divided as to the defendant's precise role in the commission
of the crime." See Zanetti, 454 Mass. at 467. If the jury were
instructed that they could convict based on a theory of joint
venture, and they found that the elements of joint venture were
present, then they could have convicted the defendant of the
principal offense. See id. at 466-467. Omitting the
instruction was not error.
4. Motion for a new trial. While his direct appeal was
pending, the defendant filed a motion for a new trial with this
court, claiming that the Commonwealth allegedly withheld
evidence from defense counsel. Alternatively, he argued that if
defense counsel received the evidence and ignored it, he
provided ineffective assistance of counsel. The motion was
considered by the trial judge, who denied it without an
evidentiary hearing. The defendant now contends that the motion
judge abused his discretion by declining to hold an evidentiary
24
hearing prior to ruling on the motion for a new trial. We
disagree.
A judge may decide a motion for a new trial without holding
an evidentiary hearing if "no substantial issue is raised by the
motion or affidavits." See Mass. R. Crim. P. 30 (c) (3), as
appearing in 435 Mass. 1501 (2001). On appeal, we review a
decision not to hold such a hearing for an abuse of discretion.
Commonwealth v. Denis, 442 Mass. 617, 628 (2004). "[W]here, as
here, the motion judge was also the trial judge, the judge's
finding that the defendant's motion and affidavit did not raise
a substantial issue is entitled to substantial deference, . . .
and the judge could properly use his knowledge and evaluation of
the evidence at trial in determining whether to decide the
motion for a new trial without an evidentiary hearing" (citation
omitted). Commonwealth v. Wallis, 440 Mass. 589, 596 (2003).
See Commonwealth v. Jenkins, 458 Mass. 791, 803 (2011)
("Reversal is particularly rare where the judge who acted on the
motion was also the trial judge").
Here, the defendant alleged that the Commonwealth withheld
exculpatory evidence by failing to disclose a taped interview of
the victim's son (the child), conducted within days of the
killing. The child, who was four years old at the time of his
25
mother's death, was in a bedroom when the victim was killed.5
The judge reviewed the interview and accurately set forth the
salient facts, which the defendant does not challenge. The child
told an investigator that "the guy that killed mommy took the TV
in her room." When asked how he knew, he responded, "Cause when
I woke up it wasn't there." He went on, however, to deny having
seen someone take the television, and to deny seeing anyone in
the apartment when he was going to sleep or when he awoke. In
response to leading questions, the child reported that he saw
the man's eyes, nose and mouth. The child first indicated that
he did not see the color of the man's skin; however, when the
interviewer pressed by asking, "Was it brown? Was it black?
Was it white?" The child said, "It was -- " and after a long
pause, added "black." Through similar questioning, the child
reported that the man had no hair, no glasses, and was medium in
size. This description did not match that of the defendant, who
is Caucasian and wears glasses.
In his affidavit that accompanied the motion, the defendant
claimed that had he had this information, he might have altered
his trial strategy. In particular, the defendant claimed that
he might not have testified in his own defense and that he might
have called the child as a witness instead.
5 The child, who was seven years old at the time of the
defendant's trial, did not testify.
26
In denying the defendant's motion, the motion judge ruled
that no evidentiary hearing was necessary because the
defendant's motion and supporting materials did not raise a
substantial issue. See Denis, 442 Mass. at 628. The motion
judge concluded that even if the prosecution had failed to
disclose the recorded interview, the defendant had not
demonstrated that such nondisclosure created a substantial risk
that the jury would have reached a different conclusion had the
evidence been admitted at trial. See Commonwealth v. Murray,
461 Mass. 10, 21 (2011) (question is "whether the new evidence
would probably have been a real factor in the jury's
deliberations" [citation omitted]).6 The motion judge also
concluded that there was no indication that the defendant had
been deprived of an otherwise available, substantive ground of
defense. See Commonwealth v. Epps, 474 Mass. 743, 757 (2016).
We agree.
The motion judge first noted potential issues with the
competence of the child witness. Although a child is not per se
incompetent by reason of age, a judge who reviews a recorded
interview of the child would be "well aware of the age and
6 Neither the defendant nor his trial counsel allege that
they specifically requested the evidence at issue here, which
would have required that we apply a standard more favorable to
the defendant. See Commonwealth v. Ferreira, 481 Mass. 641, 650
(2019).
27
corresponding limitations of the child." Commonwealth v.
Patton, 458 Mass. 119, 135 (2010). As the motion judge
observed, the child here gave contradictory accounts of the
incident, stating initially that he saw and heard nothing on the
night of his mother's murder. Upon further prompting from the
interviewer, the child then stated that he saw the person who
took the television from his room; the child described this
person as a male adult with black skin, no hair, and no glasses.
Even had such testimony been found to be competent, the
discrepancies in the recorded interview would have significantly
diminished its weight and credibility.
Moreover, at trial, the child's testimony would have been
pitted against that of Garcia and McCarthy, among others, and
the forensic evidence of the defendant's guilt. In Commonwealth
v. Lykus, 451 Mass. 310, 328-329 (2008), we considered a
previously undisclosed Federal Bureau of Investigation report
indicating that voice spectrogram analysis could not identify
the defendant's voice on a recording. See id. We concluded
that, because multiple lay witnesses had positively identified
the voice as that of the defendant, there was no prejudice. See
id. Here, we agree with the motion judge that the defendant
failed to carry his burden in showing a "substantial basis for
claiming prejudice." Commonwealth v. Watkins, 473 Mass. 222,
231 (2015). Therefore, an evidentiary hearing to determine
28
whether the exculpatory evidence was, in fact, withheld from the
defendant, or whether instead trial counsel performed in a
constitutionally deficient manner, was not required.7
5. Review under G. L. c. 278, § 33E. The defendant
additionally asks us to exercise our extraordinary power to
grant relief under G. L. c. 278, § 33E, based on any one of a
number of factors. Two such factors, alleged faulty jury
instructions and the alleged failure to turn over the child's
statement, have been addressed supra. We here address the
remaining issues raised by the defendant under § 33E.
First, the defendant claims that, because the victim had a
prosthetic leg, prospective jurors should have been asked in
voir dire about their attitudes toward people with disabilities.8
7 The defendant further argues that, in evaluating
prejudice, the motion judge erroneously considered the effect of
his testimony at the trial (in which the defendant accused
Garcia of the killing) on any subsequent trial. Where there is
a claim that exculpatory evidence was withheld or counsel was
ineffective, prejudice analysis looks to what would have
occurred but for the error -- not what might occur at a
prospective new trial. See generally Commonwealth v. Epps, 474
Mass. 743, 757 (2016); Commonwealth v. Murray, 461 Mass. 10, 21
(2011). Here, regardless of the discussion about the impact of
prior testimony on subsequent trials, the motion judge's
conclusions relating to prejudice rested on the weight of the
evidence presented at the trial. There was no error.
8 The defendant does not present this argument as a basis
for ineffective assistance of counsel. Nonetheless, we conclude
that counsel was not ineffective here for not seeking individual
voir dire of prospective jurors regarding their ability to be
impartial in light of the victim's disability. Commonwealth v.
Companonio, 445 Mass. 39, 52-53 (2005) (defendant's trial
29
"The scope of voir dire rests in the sound discretion of the
trial judge, and a determination by the judge that a jury are
impartial will not be overturned on appeal in the absence of a
clear showing of abuse of discretion or that the finding was
clearly erroneous" (citation omitted). Commonwealth v. Bell,
460 Mass. 294, 303 (2011), S.C., 473 Mass. 131 (2015), cert.
denied, 136 S. Ct. 2467 (2016). Here, in addition to asking
specific questions about certain potential biases potential
jurors might harbor, the judge asked the entire venire whether
there was any reason why they might not be able to be fair and
impartial, and asked follow-up questions of each person who
responded affirmatively. Each juror who comprised the jury that
ultimately convicted the defendant was found to be indifferent.9
There was no error.
counsel not ineffective by failing to request that prospective
jurors be asked about bias toward Cubans where no suggestion in
record that ethnicity had any particular significance in
killing).
9 We note that a member of the venire and, later, a member
of the deliberating jury, both of whom worked with disabled
individuals, were excused. With regard to the latter, the issue
was flagged during deliberations when the juror raised with the
court the possibility that she had met the victim a few years
prior. During a colloquy with the juror, defense counsel noted
that the juror worked at a rehabilitation center and requested
that the judge inquire whether the juror's place of employment
would affect her ability to be fair. The juror indicated that
her occupation would not affect her views on the case. She also
told the parties and the judge that she had not said anything to
the other jurors about the possibility that she knew the victim.
Although the judge concluded after the colloquy that there was
30
Second, the defendant points to a statement made by trial
counsel during closing argument in which counsel conceded that
the jury could convict the defendant of murder as long as they
"buy one hundred percent the testimony of Michael Garcia . . .
[and] of Jason McCarthy." The defendant does not identify, nor
can we discern, any impropriety or ineffectiveness in trial
counsel's statement. Furthermore, the statement is taken out of
context. Before counsel made the statement the defendant
complains of, he spent considerable time explaining why Garcia
and McCarthy were not credible witnesses.
Third, the defendant takes issue with trial counsel's
admittedly tactical decision not to challenge the forensic
evidence, and claims that he was prejudiced by "bloody images"
shown to the jury. The admissibility of expert testimony based
on scientific knowledge is based on the reliability of the
theory or process underlying the expert's testimony.
Commonwealth v. Lanigan, 419 Mass. 15, 24 (1994). The admission
of such evidence is within the discretion of the trial judge.
Commonwealth v. Camblin, 478 Mass. 469, 475 (2017). As for the
no reason to discharge the juror, in an abundance of caution,
the judge excused her at the defendant's request. See G. L.
c. 234A, § 39 ("The court shall have the discretionary authority
to dismiss a juror at any time in the best interests of
justice"). At the time he did so, there was no indication that
the deliberations were at an impasse or were otherwise
contentious.
31
jury's exposure to photographs of the victim and the crime
scene, "[t]he weighing of the prejudicial effect and probative
value of evidence is [also] within the sound discretion of the
trial judge, the exercise of which we will not overturn unless
we find palpable error." Commonwealth v. Bonds, 445 Mass. 821,
831 (2006). There was no error in the admission or presentation
of this evidence.
We have considered the defendant's other arguments
regarding the weight of the evidence and conclude that they are
similarly without merit. Further, we have reviewed the entire
record in accordance with our duties under G. L. c. 278, § 33E,
and we conclude that the interests of justice do not require a
new trial or a reduction of the verdict of murder in the first
degree.
Judgments affirmed.