Commonwealth v. Silva

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SJC-11096
COMMONWEALTH vs. ROBERT SILVA.
Plymouth. February 6, 2015. - June 11, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ.
Homicide. Robbery. Felony-Murder Rule. Joint Enterprise.
Search and Seizure, Warrant, Expectation of privacy,
Clothing. Constitutional Law, Search and seizure, Privacy.
Malice. Intent. Practice, Criminal, Capital case, Motion
to suppress, Instructions to jury, Argument by prosecutor,
Presumptions and burden of proof.
Indictments found and returned in the Superior Court
Department on March 23, 2007.
A pretrial motion to suppress evidence was heard by Paul E.
Troy, J., and the cases were tried before Richard J. Chin, J.
Chauncey B. Wood for the defendant.
Mary E. Lee, Assistant District Attorney, for the
Commonwealth.
BOTSFORD, J. The defendant, Robert Silva, stands convicted
of murder in the first degree on theories of extreme atrocity or
2
cruelty and felony-murder, and also of armed robbery.1 He
appeals the convictions, arguing that (1) his motion to suppress
evidence of his sneakers and evidence derived from blood found
on his sneakers was improperly denied; (2) the trial judge erred
in instructing the jury on the theory of joint venture liability
where the Commonwealth's exclusive argument was that the
defendant was guilty as a principal; (3) the judge also erred in
denying the defendant's request for an instruction on
involuntary manslaughter; and (4) the prosecutor improperly
shifted the burden of proof in her closing argument. Finally,
the defendant argues that he is entitled to relief under G. L.
c. 278, § 33E. We affirm the defendant's convictions.
Background. 1. Facts. We summarize the facts that the
jury could have found at trial.2 During the afternoon of June 9,
2004, the defendant and Eric Pimental, both eighteen years old,
were walking together on a path in the woods in Wareham. They
encountered Thomas Loftus, the victim, who was intoxicated,3 and
1
The convictions followed the defendant's second trial
before a jury on these charges; the first trial ended in a
mistrial when the jury could not agree on verdicts.
2
Some of the evidence presented at the hearing on the
defendant's motions to suppress, and the judge's findings of
fact based on that evidence, are relevant to the defendant's
appeal. We summarize them later in connection with our
discussion of the claims raised by the defendant.
3
The victim's blood alcohol level was .278.
3
they agreed that they would "roll" him.4 After Pimental knocked
the victim down to the ground, both Pimental and the defendant
began to kick the victim, and the defendant jumped on the
victim's chest. The defendant later stated to David Belmore, a
fellow inmate of the Plymouth County correctional facility
(PCCF), "You should have seen [the victim's] eyes bug out when I
jumped on his chest," and that he and Pimental knew the victim
was dead when his eyes ceased to move.5 The two men moved the
victim's body off the path, and the defendant and Pimental took
the victim's backpack, his money, and other items the victim was
carrying on his person. The defendant ended up carrying
Pimental's camouflage-colored backpack with the victim's black
backpack inside of it; Pimental ended up with the victim's
money. Before leaving the woods, the defendant and Pimental
encountered Kathy Browne, who was walking on the same path in
the woods with her young son. They spoke briefly together, and
Browne noticed blood on Pimental's legs. The defendant and
4
There was no evidence that either the defendant or Eric
Pimental knew the victim; in talking to another inmate at the
Plymouth County correctional facility (PCCF) some years later,
the defendant described the victim as "the guy" he and Pimental
encountered on the path.
5
David Belmore testified as a witness on behalf of the
Commonwealth at trial. He had entered into a cooperation
agreement with the Commonwealth on April 2, 2010, that was
thoroughly explored by the defendant's counsel in his cross-
examination of the witness.
4
Pimental then departed from the woods, separated, and the
defendant went downtown, where he drank whiskey.
Some hours later, around 6:30 P.M., Thomas Joyce, the chief
of police of Wareham, who was off duty, observed the defendant
trying to open locked vehicles on a street in Onset, a section
of Wareham. Based on his observations and conversation with the
defendant, Joyce decided to place the defendant in protective
custody because of the level of the defendant's intoxication.6
Joyce opened the camouflage-colored backpack the defendant was
carrying to check for possible weapons, and noted that there was
another backpack inside.7 The defendant and the backpacks were
transported to the Wareham police station, and the police took
custody of the backpacks. Because the police determined that
6
The police had no knowledge of the victim's death at this
time.
7
See G. L. c. 111B, § 8, which provides in relevant part:
"Any person who is incapacitated may be assisted by a
police officer with or without his consent to his
residence, to a facility or to a police station. . . .
". . .
"A police officer acting in accordance with the
provisions of this section may use such force as is
reasonably necessary to carry out his authorized
responsibilities. If the police officer reasonably
believes that his safety or the safety of other persons
present requires, he may search such person and his
immediate surroundings, but only to the extent necessary to
discover and seize any dangerous weapons which may on that
occasion be used against the officer or other person
present . . . ."
5
the defendant had at least one outstanding warrant, he was not
released at the end of the protective custody period, but taken
to the Wareham Division of the District Court Department
(Wareham District Court) the following morning, June 10, 2004.
Following his court appearance, the defendant remained in
custody pursuant to the outstanding warrant, and was transported
to the PCCF.
During that same morning, June 10, 2004, the victim's body
was found off the path in the woods where the defendant and
Pimental had encountered Browne the previous afternoon. In the
early morning hours of the following day, June 11, based on
information supplied by his then girl friend, Pimental was
arrested and charged with the victim's murder. Later that day,
the defendant's sneakers were seized from the PCCF pursuant to a
search warrant. DNA testing performed on a sample taken from a
bloodstain on one of the defendant's sneakers revealed that the
sample matched the victim's blood; the likelihood that a random
individual's DNA would match the sample was one in ninety-five
quintillion. The bloodstain on the defendant's other sneaker
was not sufficient for DNA testing.
The cause of the victim's death was blunt force trauma to
the chest. His sternum was broken, and his heart lacerated by
the sternum bone. His ribs on both sides of his chest were
broken, and he would have been alive when that occurred. His
6
left lung was torn. The injuries to his chest, heart, and lung
were consistent with being stomped. The victim's jaw was
fractured, and he also had suffered blunt force trauma to the
head.
2. Procedural history. The defendant was indicted on
charges of murder and armed robbery in 2007. He filed five
motions to suppress evidence.8 The motions were heard and
decided by a judge in the Superior Court (motion judge) in the
summer of 2009, after an evidentiary hearing. The motion judge
allowed the motion to suppress statements (fourth motion to
suppress), and allowed in part the first motion to suppress
evidence of the search of the backpacks conducted by the police
chief and an officer of the Wareham police department,
respectively, on June 9, 2004. The judge otherwise denied the
first motion to suppress, and also denied the remaining motions
(second, third, and fifth motions to suppress).9 After the
8
The five motions were: (1) a motion to suppress evidence
obtained from warrantless search of backpacks on June 9, 2004;
(2) a motion to suppress evidence obtained from a warrant search
conducted at PCCF on June 11, 2004; (3) a motion to suppress
evidence obtained from a warrant search conducted at the Wareham
Division of the District Court Department on June 11, 2004; (4)
a motion to suppress the defendant's statements made when
arrested on September 29, 2006; and (5) a motion seeking relief
pursuant to Franks v. Delaware, 438 U.S. 154 (1978).
9
On appeal, the defendant challenges the denial of his
motion to suppress evidence of his sneakers (second motion to
suppress), but does not challenge the motion judge's rulings in
any other respect.
7
defendant's first trial ended in a mistrial when the jury could
not agree on verdicts, the defendant was retried in January of
2011 before a judge other than the motion judge (trial judge).
The jury found the defendant guilty of murder in the first
degree on the theories of extreme atrocity or cruelty and
felony-murder, and also found him guilty of armed robbery. He
was sentenced to life imprisonment without parole on the murder
conviction and a concurrent sentence of from four to five years
on the armed robbery conviction.10 The defendant filed a motion
for a new trial that he later withdrew.
Discussion. 1. Evidence of the defendant's sneakers. On
appeal, the defendant asserts error in the motion judge's denial
of his second motion to suppress, which challenged the
constitutionality of the search and seizure of the defendant's
sneakers from the PCCF on June 11, 2004. As indicated, the
motion judge held an evidentiary hearing on the defendant's
suppression motions as a group in which evidence was presented
pertaining to essentially all of the motions. In considering
the defendant's arguments here concerning the second motion, we
10
Eric Pimental was separately tried and convicted of
murder in the first degree and armed robbery. This court
affirmed his convictions. See Commonwealth v. Pimental, 454
Mass. 475, 476, 485 (2009).
8
begin by summarizing the judge's pertinent findings and
rulings.11
The judge found that the defendant was taken into
protective custody by the Wareham police chief on the evening of
June 9, 2004, taken to the Wareham District Court the following
morning, and then ordered held by a District Court judge on an
outstanding warrant and transported to the PCCF. After the
victim's body was found on June 10, the medical examiner
determined the same day that the death was a homicide, and had
occurred about twenty-four hours earlier -- around 3:15 P.M. on
the afternoon of June 9. Police investigation into the homicide
led them to believe that Pimental and the defendant were
involved in the crime, and Pimental was interviewed by the
police on June 11.12 Pimental ultimately told the police that
both he and the defendant had fought with the victim and that
the defendant had hit and kicked the victim, and also described
the clothing the defendant had been wearing. One of the State
police officers interviewing Pimental, State police Trooper
Robert Dateo, believed the defendant was still wearing the same
clothes when he was transported to the PCCF the previous day,
11
The defendant does not appear to dispute the motion
judge's factual findings.
12
The motion judge did not make a finding as to when on
June 11, 2004, Pimental was interviewed. It appears to have
been in the very early morning hours of that date. See
Pimental, 454 Mass. at 477 n.1.
9
June 10. Based on the information supplied by Pimental, the
trooper applied for a search warrant to obtain the defendant's
clothes from the PCCF for forensic testing purposes. The
warrant issued at 6:15 A.M. on June 11. Captain Scott Berna of
the State police, who was present when the warrant issued, then
telephoned the PCCF and informed Captain Scott Petersen of the
Plymouth County sheriff's department that a warrant to search
for and seize the defendant's property had been secured and
police would be coming to the facility to execute it. Petersen
then notified the PCCF property department to get the
defendant's property together, and correctional officers went to
the unit where the defendant was housed and secured his
sneakers.13
At the PCCF, a detainee is issued prison clothing and his
own clothing is put into a property bag and stored until it is
either picked up by the detainee's family or mailed elsewhere at
the detainee's expense. The clothing must be removed from the
PCCF within thirty days of the detainee's arrival. A detainee,
however, may be, and often is, permitted to keep his or her
footwear, and specifically sneakers, because the prison-issue
sneakers are not of good quality and would not fit as well. But
keeping the sneakers is a privilege, and they may be taken from
13
There was no evidence presented as to the precise
location of the defendant's sneakers in the unit at the time
they were seized.
10
a detainee at any time.14 When police seize a detainee's
property from the PCCF pursuant to a search warrant, they
generally do not give the detainee notice or provide him with a
copy of the warrant unless it is a warrant to take a buccal
swab.15
In this case, after the search warrant issued, Berna drove
to the PCCF to retrieve the defendant's property at some point
during the morning of June 11, 2004. He met a correction
officer in the facility's lobby; the officer gave him the bag
containing the defendant's clothes, including the defendant's
sneakers, and Berna gave the officer a copy of the search
14
Introduced in evidence at the hearing on the motion to
suppress was the PCCF "property seizure receipt" for the
defendant's clothing. The receipt, which is signed by the
defendant, states that "[a]ll items except court clothes,
glasses, hearing aids and approved prosthetic devices will be
considered contraband." The receipt then lists the items of
clothing the defendant brought or was wearing, including a
shirt, two shorts, and "1 sneakers." The receipt has an
asterisk typed on it on the line listing the sneakers. Captain
Scott Petersen of the Plymouth County sheriff's department
testified the asterisk meant that the defendant was entitled to
keep his sneakers, although doing so was a privilege, and the
sneakers could be taken from him at any time.
15
Petersen testified to this point. He also stated more
generally that when the inmate is present at the time property
is seized, a copy of the warrant is given to the inmate, "[a]nd,
say, the individual, in this particular case, was Mr. Silva, had
the sneakers on his person and they were going to be executing
the search warrant, we would provide him a copy as we take the
sneakers away from him because he's physically there and
physically present." As indicated in the text, infra, there is
no indication in the record that the defendant was given a copy
of the search warrant when his sneakers were seized.
11
warrant at the same time. The copy ultimately was received by
the "legal department." The defendant was not present when his
property was turned over to the police, and was not provided a
copy of the warrant at that time. After receiving the bag
containing the defendant's property, Berna took the bag to the
State police barracks, where Dateo, in Berna's presence, opened
it on June 14, 2004, and listed the contents on the search
warrant return. Dateo then filed the return with the court on
June 17.
Based on his findings, the motion judge ruled in relevant
part that the defendant was required to establish that he had a
subjective expectation of privacy in his clothing that also was
objectively reasonable, and that given his status as an inmate
at the jail, the defendant could not make the required showing.16
On appeal, the defendant challenges the judge's conclusion. He
claims that the judge equated the status and rights of a
pretrial detainee with those of a convicted prisoner, and in
doing so failed to recognize that, as a pretrial detainee, the
defendant had a privacy right with respect to his personal
clothing that society was prepared to recognize as reasonable,
16
In his motion to suppress, the defendant raised a number
of additional challenges to the search and seizure of his
clothes and sneakers from the PCCF that the motion judge
considered and rejected in his memorandum of decision. The
defendant does not challenge these particular rulings on appeal,
and we do not discuss them except to say that we find no error
in the rulings.
12
and that therefore was entitled to constitutional protection.
Because the officers who performed the seizure did not have a
warrant in hand at the time they seized the clothing and
sneakers, the defendant's argument continues, the seizure was
the equivalent of a warrantless seizure that violated the Fourth
Amendment to the United States Constitution and art. 14 of the
Massachusetts Declaration of Rights.
As the defendant acknowledges, he carries the burden of
establishing that, in the circumstances presented, he retained a
reasonable expectation of privacy in his sneakers. See
Commonwealth v. Bly, 448 Mass. 473, 490 (2007) ("To succeed on
appeal, [the defendant] must bear the threshold burden of
showing that a warrantless search or seizure occurred. . . .
This question is analyzed under the familiar two-part query
whether [the defendant] had a subjective expectation of privacy
in the items seized, and if so, whether that expectation was
reasonable objectively"); Commonwealth v. Montanez, 410 Mass.
290, 301 (1991) (same). The defendant has not met this burden.
Based on undisputed evidence before him, the motion judge found
that as a matter of policy the PCCF deemed the personal clothing
(including footwear) of individuals held in custody there,
including pretrial detainees, to be contraband, and although the
PCCF generally allowed inmates to keep their sneakers, the
retention was a privilege that could be withdrawn at any time.
13
Moreover, the status of a prisoner's clothing as contraband was
stated explicitly on the property seizure receipt used by the
PCCF to make a record of the defendant's items of clothing being
seized and stored; the defendant's signature on that receipt
indicates that he was or reasonably should have been aware of
the contraband status.
As indicated, the defendant argues that as a pretrial
detainee, his privacy interests are entitled to greater
protection in the jail setting than those of a convicted
defendant serving a sentence. We agree that a pretrial detainee
enjoys at least as many constitutional rights as a convicted
prisoner and perhaps more. See Bell v. Wolfish, 441 U.S. 520,
545 (1979). See also United States v. Cohen, 796 F.2d 20, 23-24
(2d Cir.), cert. denied, 479 U.S. 854 (1986). But, as decisions
of the United States Supreme Court considering the Fourth
Amendment reflect, the legitimate penological interests and
needs of a jail also are entitled to great respect. See Turner
v. Safley, 482 U.S. 78, 89 (1987); Bell, supra at 545-546. See
also Florence v. Board of Chosen Freeholders of the County of
Burlington, 132 S. Ct. 1510, 1517 (2012) (considering
constitutionality of strip searches of jailed detainees). We
have recognized the need to weigh legitimate penological
concerns and interests under art. 14 as well. See, e.g., Matter
of a Grand Jury Subpoena, 454 Mass. 685, 689-693 (2009). There,
14
the court considered and rejected a challenge under art. 14 to a
sheriff's policy of recording the telephone calls of "inmates"
(both pretrial detainees and inmates serving a sentence) and
providing the recordings to the grand jury in response to
subpoena. In doing so, the court observed that "we [have]
adopted the deferential standard of review for constitutional
challenges to prison regulations and policies established by the
United States Supreme Court in Turner v. Safley, [supra]."
Matter of a Grand Jury Subpoena, supra at 690 (citing and
discussing Cacicio v. Secretary of Pub. Safety, 422 Mass. 764,
772-773 [1996]). Here, the defendant does not challenge the
validity of the PCCF's policy of treating inmates' clothing,
including sneakers, as contraband.17 Rather, he argues that the
sneakers were seized from his cell or from his person,18 and
17
Although the reason for the policy to treat clothing as
contraband was not raised by the defendant in his motion to
suppress and was not the subject of any testimony or other
evidence introduced at the hearing on the defendant's
suppression motions, we infer that the policy was one designed
for reasons of security and perhaps other reasons as well,
including sanitation and health. See Kight v. State, 512 So. 2d
922, 927 (Fla. 1987), cert. denied, 485 U.S. 929 (1988), and
cases cited (warrantless seizure of defendant's clothing by jail
authorities was permissible even though seizure was made in
order to test for evidence of crime, where legitimate health or
security purposes would have entitled jail authorities to effect
seizure of inmates' clothing at any time).
18
It is not relevant to our decision here, but the
defendant's assumption that if his sneakers were not seized from
his cell, they must have been seized from his person, has no
evidentiary support in the record.
15
asserts that he had a reasonable expectation of privacy related
to the sneakers that was entitled to protection under the Fourth
Amendment and art. 14, and that barred the seizure of the
sneakers from either location.
The defendant relies particularly on Cohen, 796 F.2d at 23-
24, in making his claim. In Cohen, a correction officer
conducted a search of the defendant's cell in the jail facility
where he was being held pending trial. The search was conducted
at the direction of a prosecutor, and in conducting it, the
officer focused on the defendant's papers in the cell. Based on
information the officer obtained from these papers, the
prosecutor thereafter obtained a search warrant for them and
used the papers as evidence against the defendant at trial. Id.
at 21. The court concluded that because the initial,
warrantless "contraband" search was "intended solely to bolster
the prosecution's case against a pre-trial detainee awaiting his
day in court," id. at 23, with no purpose related to
institutional security, it violated the Fourth Amendment,
tainted the validity of the search warrant subsequently
obtained, and required suppression of the materials seized
pursuant to the warrant. See id. at 23-24. Accord, e.g., McCoy
v. State, 639 So. 2d 163, 164-167 (Fla. Ct. App. 1994)
(warrantless search ordered by prosecutor solely to uncover
incriminating evidence from defendant's cell; denial of motion
16
to suppress reversed because no legitimate prison objectives
justified search); State v. Neely, 236 Neb. 527, 530, 540-541
(1990) (warrantless search of defendant's property in locked
jail inventory to look for evidence of crime; suppression order
affirmed). See State v. Henderson, 271 Ga. 264, 267-268 (1999),
cert. denied, 528 U.S. 1083 (2000) (agreeing with principle that
warrantless search of pretrial detainee's cell solely at
prosecutor's request would be improper; search warrant would be
required). In this case, it is true that the seizure of the
defendant's sneakers and other clothes was at the behest of
police who were conducting an investigation, and was not done
for institutional security reasons related to the PCCF. But
here, in contrast to the Cohen case -- and similar to Henderson,
supra at 268-269 -- the police had obtained a search warrant for
the defendant's clothes, on the basis of an affidavit providing
probable cause, before any examination or seizure of the
sneakers occurred.19
19
Despite the existence of the search warrant, the
defendant asserts that under Commonwealth v. Guaba, 417 Mass.
746 (1994), the seizure of his sneakers was unreasonable by
definition because although the search warrant had issued by the
time the correction officers seized the sneakers, the officers
did not have a copy of the warrant with them when they did so.
See id. at 754 ("we hold art. 14 [of the Massachusetts
Declaration of Rights] implicitly requires law enforcement
officials to possess a copy of the warrant when executing it,
unless there are exigent circumstances which would permit a
warrantless search"). We explain in the next paragraph of the
text that at the time the sneakers were seized, the defendant
17
Moreover, in order to claim constitutional protection
against the seizure of his sneakers, the defendant must show
that he had an actual expectation of privacy in them that
society would be prepared to recognize as objectively
reasonable. Matter of a Grand Jury Subpoena, 454 Mass. at 688,
quoting Commonwealth v. Blood, 400 Mass. 61, 68 (1987). Even if
we assume that the defendant had a subjective expectation of
privacy related to his sneakers, it would not be one that is
objectively reasonable; the circumstances previously discussed
make this clear.20 As discussed, this court has long held that
the monitoring and recording of detainees' and other inmates'
telephone calls in a jail or house of correction, when the
inmates have notice of the policy, does not violate the Fourth
Amendment or art. 14. See, e.g., Commonwealth v. Rosa, 468
Mass. 231, 242-244 (2014); Matter of a Grand Jury Subpoena,
did not have a reasonable expectation of privacy in them that
was entitled to protection under art. 14. Accordingly, we need
not decide the defendant's Guaba claim or consider whether there
are circumstances in which the "rule" of Guaba may not apply.
20
In terms of circumstances, we focus on the following:
the defendant was lawfully being held in custody at the PCCF on
an outstanding warrant; the PCCF had a policy, unchallenged by
the defendant, of treating the personal clothing belonging to
all inmates, including pretrial detainees, as contraband,
presumably as a security measure; and the defendant was or
reasonably can be held to have been aware of the policy, having
signed the "property seizure receipt" on the day of his arrival
at the institution. The personal papers of the defendant at
issue in United States v. Cohen, 796 F.2d 20, 21 (2d Cir.),
cert. denied, 479 U.S. 854 (1986), would not appear to be
covered by the PCCF policy.
18
supra at 688-693; Cacicio, 422 Mass. at 770-773. As we recently
determined in relation to inmate mail deemed contraband by jail
officials, see Commonwealth v. Jessup, 471 Mass. 121, 127-134
(2015), we conclude here that as a pretrial detainee in a jail
facility with a legitimate policy in place of treating detainee
and inmate clothing as contraband -- a policy of which the
defendant had notice -- the defendant had no constitutionally
protectable privacy interest in his sneakers that prevented
their seizure.
2. Joint venture. The defendant argues that the trial
judge committed constitutional error by instructing the jury on
joint venture liability, over defense counsel's objection. The
argument is not that there was insufficient evidence of a joint
venture between the defendant and Pimental, but rather that the
instruction violated his constitutional right to due process
because he had no notice that a joint venture theory would be
advanced.
The defendant's claim lacks merit. As the Commonwealth
points out, the opening statement of the prosecutor clearly
reflected the Commonwealth's position that the defendant and
Pimental acted together in committing the murder, as did the
defendant's own statements about committing the crime that were
19
introduced through the testimony of one of the Commonwealth's
central witnesses, David Belmore.21
The defendant suggests a denial of due process here because
the Commonwealth presented the defendant to the jury only as
having participated directly in the killing and therefore as a
"principal," whereas through the vehicle of the judge's joint
venture instruction, the jury were permitted to convict him as
an "accomplice" or "joint venturer," a theory of guilt that had
never been presented during trial and in response to which he
lacked an opportunity to prepare a defense. The defendant's
argument, however, appears to be premised on an incorrect view
of joint venture principles. To prove that a defendant
committed a crime as part of a joint venture, the Commonwealth
must prove beyond a reasonable doubt that the defendant
"knowingly participated in the commission of the crime charged,
alone or with others, with the intent required for that
offense." Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009).
There is no requirement that the Commonwealth prove precisely
what role the defendant played -- whether he acted as a
principal or an accomplice (or joint venturer). Rather, as
Zanetti reflects, what matters is only that there be proof of
21
Nor could any claim be made that the Commonwealth's
request for, and the judge's decision to give, a joint venture
instruction was a surprise. A joint venture instruction had
been given during the defendant's first trial, and the same
trial counsel represented the defendant in both trials.
20
(1) the defendant's knowing participation in some manner in the
commission of the offense; and (2) the defendant's intent --
i.e., proof that the defendant had or shared in the intent
necessary for the offense of which he is convicted. See id. at
466-468 & n.22. The evidence presented by the Commonwealth in
this trial indicated that both the defendant and Pimental
actively participated in the killing of the victim, and also
that the defendant did so with the intent necessary to commit
murder. There was no error in charging the jury on joint
venture.
3. Involuntary manslaughter instruction. The defendant
claims reversible error in the trial judge's decision not to
give an instruction on involuntary manslaughter. We disagree.
The trial evidence concerning the defendant's actions and role
in the killing of the victim was presented by the Commonwealth's
witness Belmore, who testified to conversations he had had with
the defendant while they were both incarcerated in the same
jail. That evidence indicated that after Pimental knocked the
victim down, he and Pimental together kicked the victim with
Pimental kicking him in the head, and that the defendant jumped
on the victim's chest, making the victim's eyes "bug out."
According to the defendant, he and Pimental knew the victim was
dead when "his eyes stopped moving." The injuries sustained by
the victim, which were consistent with someone jumping or
21
stomping on his chest, were multiple and severe: a broken
sternum, an injury that, according to the medical examiner, was
consistent with a great deal of force being applied; a lacerated
heart and torn lung; and broken ribs on both sides of his body,
also involving significant force. The victim's additional
injuries included a broken jaw and blunt force trauma to the
head such that his face was unrecognizable.
The intent necessary to prove murder in the first degree on
the theory of extreme atrocity or cruelty includes (1) an intent
to commit grievous bodily harm or (2) an intent to commit an act
that, in the circumstances known to the defendant, created a
plain and strong likelihood that death would follow (third prong
malice). Commonwealth v. Pimental, 454 Mass. 475, 480 (2009).
The intent necessary to prove involuntary manslaughter is an
intent to commit an act that "involves a high degree of
likelihood that substantial harm will result to another."
Commonwealth v. Vizcarrondo, 427 Mass. 392, 396 (1998), S.C.,
431 Mass. 360 (2000), quoting Commonwealth v. Sires, 413 Mass.
292, 303 n.14 (1992). The circumstances of the killing and
injuries sustained by the victim are not consistent with
anything other than intent to do grievous bodily harm or an
22
intent qualifying as third prong malice. The trial judge did
not err in declining to instruct on involuntary manslaughter.22
4. Prosecutor's closing argument. In her closing
argument, the prosecutor stated:
"Now, the defense has suggested that Eric Pimental
acted alone and that this defendant did nothing but stand
by. There is not a scintilla of evidence to support that
proposition, ladies and gentlemen. . . . [T]hree men
walked into the woods and only two came out. And those two
men walked out of those woods together, and they were both
carrying the property of [the victim]. [T]hey both had the
blood of [the victim] on their shoes." (Emphasis added.)
The defendant contends that the prosecutor's statement
about "not a scintilla of evidence" improperly shifted the
burden of proof to the defendant. We disagree. In context, the
argument represented a response to defense counsel's closing
argument in which he summarized the evidence of blood and other
physical evidence linking Pimental directly to the crime, and
the paucity of such evidence relating to the defendant, and then
argued that the defendant had been present with Pimental when
the latter killed the victim, but had not actively participated
in the crime -- that his conduct in not interfering and stopping
22
In any event, the jury also convicted the defendant of
murder in the first degree on a theory of felony-murder, with
armed robbery as the predicate felony. A defendant is not
entitled to an instruction on involuntary manslaughter in
connection with the theory of felony-murder. See Commonwealth
v. Jessup, 471 Mass. 121, 135 (2015); Commonwealth v. Selby, 426
Mass. 168, 172 (1997).
23
his companion was morally "troubling", but was not a crime.23
The prosecutor was entitled to respond to the defense argument
and also to comment on the strength of its case and weakness of
the defense, "as long as argument is directed at the defendant's
defense and not at the defendant's failure to testify."
Commonwealth v. Garvin, 456 Mass. 778, 799 (2010). Considering
the challenged phrase in the context of the prosecutor’s entire
argument, we find no error.
5. Relief pursuant to G. L. c. 278, § 33E. We have
thoroughly reviewed the evidence and record in this case, and
find no basis on which to grant relief to the defendant pursuant
to G. L. c. 278, § 33E.
Judgments affirmed.
23
Defense counsel argued:
"I know for many people it's troubling that Mr. Silva
would even be present, okay, and that it's morally
troubling that he didn't intervene. I understand that.
But that is not a crime. It's not right, but it's not a
crime. We're here to determine not whether he acted,
necessarily, the way we would have wished he had acted that
day, but we're here to determine whether he committed a
crime."