Commonwealth v. Brown

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SJC-11671
COMMONWEALTH vs. MARQUISE BROWN.
Middlesex. February 12, 2016. - June 17, 2016.
Present: Gants, C.J., Spina, Botsford, Duffly, & Lenk, JJ.
Homicide. Firearms. Constitutional Law, Admissions and
confessions, Voluntariness of statement, Waiver of
constitutional rights, Confrontation of witnesses.
Evidence, Admissions and confessions, Voluntariness of
statement, Hearsay, Common criminal enterprise, Joint
enterprise, Telephone conversation, Relevancy and
materiality. Joint Enterprise. Telephone. Imprisonment,
Inmate telephone calls. Practice, Criminal, Capital case,
Motion to suppress, Admissions and confessions,
Voluntariness of statement, Waiver, Confrontation of
witnesses, Instructions to jury, Request for jury
instructions.
Indictments found and returned in the Superior Court
Department on August 6, 2009.
A pretrial motion to suppress evidence was heard by John T.
Lu, J., and the cases were tried before Kimberly S. Budd, J.
Gail S. Strassfeld for the defendant.
Jamie Michael Charles, Assistant District Attorney
(Christopher M. Tarrant, Assistant District Attorney, with him)
for the Commonwealth.
2
SPINA, J. The defendant, Marquise Brown, was convicted of
murder in the first degree on theories of deliberate
premeditation and extreme atrocity or cruelty. He also was
convicted of illegally carrying a firearm, illegal possession of
a loaded firearm, and illegal possession of ammunition. On
appeal the defendant asserts error in (1) the denial of his
motion for a required finding of not guilty as to the theory of
murder by extreme atrocity or cruelty; (2) the denial of his
motion to suppress his statements to police; (3) the admission
in evidence of accusations by police during the interrogations
of the defendant; (4) the admission of a statement of the
codefendant1 under the joint venture exception to the hearsay
rule; (5) the admission of recorded jailhouse telephone calls;
(6) jury instructions on the theory of extreme atrocity or
cruelty; and (7) jury instructions that precluded the jury from
considering the defendant's youth as to various issues. The
defendant claims that the cumulative effect of the various
errors requires a new trial, pursuant to G. L. c. 278, § 33E.
We affirm the convictions and decline to exercise our powers
under § 33E to reduce the degree of guilt or to order a new
trial.
1. Background. The jury could have found the following
facts. Other details are reserved for discussion of specific
1
Yessling Gonzalez, the codefendant, was tried separately.
3
issues. On the evening of June 19, 2009, the defendant,
Yessling Gonzalez, and the victim, all friends, attended a party
in an apartment complex in Marlborough. The party ended after a
neighbor complained about the noise. One of the partygoers,
Melody Downer, invited people, including the defendant and the
victim, to her apartment, which was nearby. While at Downer's
apartment, the defendant placed his money and marijuana on a
table. Downer took the money, and Gus Landrum took the
marijuana. The defendant, however, believed the victim had
stolen the items. Later that night, at the apartment of another
friend, the defendant accused the victim of stealing his money
and his marijuana. The two men, both age seventeen at the time,
fought. The altercation moved through the hallways of two
separate floors of the building, and attracted many onlookers.
The victim got the better of the defendant. The victim then
left, and the defendant's friends had to restrain the defendant
to keep him from following the victim. The defendant was angry
and threatened to kill the victim, adding that he "didn't care
if he spent the rest of his life in jail."
At about 1:30 P.M. the next day, June 20, the defendant and
Gonzalez returned to the Marlborough apartment complex with the
defendant's girl friend and some friends after going to lunch.
Thereafter, the defendant, Gonzalez, and the victim traveled
together in Gonzalez's silver Volvo station wagon to Callahan
4
State Park in Framingham. Surveillance photographs showed the
Volvo and three occupants at 1:41 P.M. heading toward the park.
Two men who had been mountain biking in the park saw the Volvo
enter the parking lot at the park. They described for police
the three occupants, and a distinctive feature of the Volvo.
Their descriptions generally matched the features and clothing
worn by the defendant, Gonzalez, and the victim. The defendant,
Gonzalez, and the victim approached the entrance to a trail as
the two mountain bikers left the parking lot. The three men
appeared friendly toward each other.
At approximately that time an employee at a nearby farm
heard two or three gunshots. At 2:01 P.M. the Volvo appeared on
a surveillance recording traveling away from the park with only
two occupants. Minutes later a hiker discovered the victim's
body on a trail. A bandana similar to one worn by Gonzalez was
found on the trail between the victim's body and the parking
lot. The victim sustained two gunshot wounds. The first was
fired from behind, penetrating the right thigh, scrotum, and
left thigh. The second and fatal shot entered the front of the
victim's chest and perforated his heart and left lung. Gunshot
residue on the victim's shirt indicated the second shot was
fired from between three to five feet. The trajectory of the
second shot, together with abrasions on the victim's right knee,
5
suggested the victim was on his knees when the second shot was
fired. The murder weapon never was recovered.
In recorded telephone calls from the jail where the
defendant was being held pending trial, the defendant admitted
to his grandmother that he was present during the killing, and
that he knew who did it. He told his grandmother during a
subsequent call that "the devil was in me . . . [and] told me to
get in [Gonzalez's] car." In another telephone call the
defendant told his girl friend that Gonzalez was the shooter.
2. Extreme atrocity or cruelty. The defendant asserts
error in the denial of his motion for a required finding of not
guilty as to the theory of murder by extreme atrocity or
cruelty. In particular, he maintains that the Commonwealth
failed to present evidence from which a jury could conclude that
any of the Cunneen factors had been established. See
Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). He focuses
on the factor that the killer took pleasure in, or was
indifferent to, the victim's suffering. Id. When deciding
whether a judge erred in denying a motion for a required finding
of not guilty, we view the evidence in the light most favorable
to the Commonwealth, and we ask if any rational trier of fact
could have found that the requisite elements of the crime had
been proved beyond a reasonable doubt. See Commonwealth v.
Latimore, 378 Mass. 671, 676-677 (1979).
6
Notwithstanding the defendant's contention that the medical
examiner could not determine the order of the two gunshots, and
her testimony that a gunshot wound to the chest could have
produced death "instantaneous[ly]," the medical examiner
testified that her "best estimate" was that the victim lived
"minutes" after being shot in the chest. This was supported by
her testimony that the gunshot wound to the chest caused
approximately three liters of blood to flow into the victim's
chest cavity. A jury could have inferred that death occurred
minutes after the victim was shot in the chest.
With respect to the order of the gunshots, a jury could
have found that the first shot passed completely through the
victim's thighs and scrotum while he was standing. That bullet
traveled at a slightly downward angle, or nearly parallel to the
ground, which could explain why it was never found despite
efforts through the use of a metal detector to locate it. The
medical examiner testified that the bullet that passed through
the victim's scrotum likely would have been painful. A jury
also could have found that the victim then fell to his knees,
bruising them, and that the defendant circled around the victim,
looked him in the face, and fired the second bullet at close
range into his chest.
From this evidence, and from the evidence that the
defendant was angry at the victim for beating him the day
7
before, the evidence of the defendant's threats to kill the
victim even if it meant spending the rest of his life in prison,
and the permissible inference that the defendant lured the
victim to the park as a symbol of their restored friendship, the
jury could have found that the defendant took pleasure in, or
was indifferent to, the victim's suffering. See Commonwealth v.
Anderson, 445 Mass. 195, 202 (2005) (jury could have found
defendant was indifferent to victim's suffering based on
inference that victim was kneeling and terrified by knowledge of
what was coming before defendant shot him in face). The jury
also could have found that the victim was conscious of his
suffering. Thus, a jury could have found that the Commonwealth
had established two of the Cunneen factors (only one is needed)
beyond a reasonable doubt. See Cunneen, 389 Mass. at 227. See
also Commonwealth v. Linton, 456 Mass. 534, 546 (2010) (one or
more Cunneen factor must be proved). There was no error in the
denial of the defendant's motion for a required finding of not
guilty.
3. Motion to suppress. The defendant asserts error in the
denial of his motion to suppress statements he made to police on
June 21 and June 23, 2009. He argues that he was in custody
both times, and the Commonwealth failed to prove beyond a
reasonable doubt that he validly waived his Miranda rights and
that his statements were made voluntarily. When reviewing the
8
denial of a motion to suppress, "[w]e accept the judge's
subsidiary findings absent clear error but conduct an
independent review of his ultimate findings and conclusions of
law." Commonwealth v. Jiminez, 438 Mass. 213, 218 (2002). The
defendant's focus is on the involuntariness of the Miranda
waiver and the involuntariness of his statements. The burden is
on the Commonwealth to establish "beyond a reasonable doubt, in
the totality of the circumstances, that a defendant's [Miranda]
waiver was voluntary, knowing, and intelligent, and that his
statements were voluntary." Commonwealth v. Auclair, 444 Mass.
348, 353 (2005). We summarize the facts found by the motion
judge.
Early in the investigation police learned that the
defendant and the victim had been involved in a fight on
June 19, and that the defendant had accused the victim of
stealing his marijuana and his cash. Police obtained a video
surveillance recording from the New England Primate Center,
located close to where the victim's body was found. The
recording showed two vehicles, one, a silver Volvo, traveling to
and from the vicinity of the shooting, before and after the time
that the sound of gunshots had been reported to police. On June
21, two plainclothes detectives went to the apartment where the
defendant was living. The defendant answered the door. He had
a black eye, and explained that he received it in a fight. The
9
detectives asked if they could enter, and the defendant obliged.
There were two other adults, including Gonzalez, and three
children in the apartment. One of the detectives spoke to the
defendant, who appeared to understand what the detective was
saying. He did not appear to be under the influence of alcohol
or drugs, and he agreed to go to the police station to speak to
police. He left with two other police officers who had arrived,
and he did not appear unsteady on his feet or demonstrate any
difficulty walking.
One of the two detectives who originally arrived at the
apartment remained. He spoke to Gonzalez, asking for some
identification. Gonzalez said it was in his vehicle. When they
went to Gonzalez's vehicle, police noted that it was a Volvo
station wagon. He gave police some information as to his
whereabouts at the time police believed the shooting took place.
In the meantime, the defendant was en route to the
Framingham police station in an unmarked police vehicle. When
they were a few blocks from the police station the defendant
said he had to urinate very badly. As they pulled up to the
"side of the road" the defendant urinated in his pants.2 The
2
The defendant contests this finding, arguing that no
officer testified to this. The judge's finding appears to be
clearly erroneous, as the officer on which this finding was
based testified that this happened as they were "pulling into
the side road that leads to the . . . side entrance [of the
police station]" (emphases added). However, the import of the
10
motion judge found that "[h]e urinated in his pants because he
had to urinate very badly, and because he was very upset,
although not visibly so, about being questioned about the
killing of [the victim]." Once at the station the officers
brought the defendant to a bathroom, where he cleaned himself.
At approximately 5 P.M. the defendant was brought to an
interview room where he was advised of his right to have the
interview tape recorded. He declined in writing to have the
interview recorded. He was advised of the Miranda rights, and
he was told that he could stop the interview at any time. The
defendant, who had prior experience with the criminal justice
system -- having been previously arrested and prosecuted as a
juvenile -- indicated he understood his rights and that he was
willing to be interviewed.
The interview lasted approximately one hour. The defendant
was "outwardly affable and cooperative although in emotional
turmoil: he was appropriately upset about being questioned
about the killing." The two police officers who interviewed him
were not armed, having locked up their weapons earlier. The
defendant took three bathroom breaks and one cigarette break
during the interview. He denied being present when the victim
judge's finding appears to be unaffected by this minor error.
The uncontroverted testimony suggests that this occurred when
they were very close to the police station, where the officers
thought he could use the bathroom.
11
was shot. He consented to the taking of a buccal swab for
deoxyribonucleic acid analysis. At the end of the interview he
was driven home, which took approximately fifteen minutes.
The next day, June 22, two mountain bikers came forward
with information regarding three men in a Volvo station wagon
who entered the park as the bikers were leaving. This occurred
minutes before the shooting. One of the bikers described a
strip of body work on the front of the Volvo that did not match
the rest of the vehicle. A detective drove the men to the
parking lot where Gonzalez's Volvo was parked. That biker
identified the Volvo as the same one he saw on June 20 at
Callahan State Park.
On June 23 three officers went to the defendant's apartment
to ask him to go to the police station for questioning. The
defendant had been sleeping, but answered the door. He agreed
to go to the police station with them. They "allowed" the
defendant to change his clothes. The defendant appeared
cooperative and "more awake."
Upon arrival at the station, he was taken to a small
interview room where he was advised of his Miranda rights, and
he was told that he could stop the questioning at any time. The
defendant said he understood his rights, and signed a waiver of
rights form. He also indicated that he did not want the
interview recorded. Police spoke to him for about fifteen
12
minutes, and told him there were contradictions between his
account and what other witnesses had reported. The defendant
yelled at police, saying he was "done talking to you guys." The
interview ended, and a decision was made to arrest the
defendant. He asked why he had been arrested. When told that
it was for "murder," he said, "This is bullshit. How can you
charge me with murder, you don't even have a gun?" This
occurred between approximately 6:45 and 7 P.M.
We first address the question of waiver. The defendant
claims that the interrogations on June 21 and June 23 were
custodial, and that he did not waive his Miranda rights
voluntarily. The judge concluded that neither interrogation was
custodial. We need not resolve the question whether the
interrogations were custodial because the judge also found that
the defendant waived his Miranda rights on both occasions. The
significance of the custodial nature of an interrogation is that
it triggers the necessity to give the Miranda warnings. See
Commonwealth v. Kirwan, 448 Mass. 304, 309 (2007). Here, the
warnings were given prior to questioning, and the defendant
voluntarily, knowingly, and intelligently waived his Miranda
rights. The defendant challenges only the voluntariness of his
waivers, which we now address.
Relevant factors to consider when deciding if a waiver of
Miranda rights was voluntary include, but are not limited to,
13
"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 police), and the
details of the interrogation, including the recitation of
Miranda warnings." Commonwealth v. Jackson, 432 Mass. 82, 86
(2000), quoting Commonwealth v. Mandile, 397 Mass. 410, 413
(1986), S.C., 403 Mass. 93 (1988). With respect to the June 21
interrogation, the defendant focuses our attention on his age
(seventeen), the officers' alleged mistreatment of him in
refusing to stop the vehicle to allow him to urinate, and not
asking him if he would like to change his clothes.
The judge considered the defendant's youth, the fact that
he was upset about being questioned about the killing, and that
he had urinated in the vehicle. He also considered the fact
that the defendant did not appear to be under the influence of
alcohol or drugs, that he consented to going to the police
station to be interviewed, that he had had some experience with
the criminal justice system as a result of a prior arrest and
prosecution in the Juvenile Court, that he was advised prior to
questioning that he could stop the questioning at any time, that
he appeared affable and cooperative at all relevant times, that
the police officers were unarmed during the interrogation, that
14
he requested and received three bathroom breaks and a cigarette
break, that the interview lasted approximately one hour, that
the defendant denied any involvement in the killing, and that
the defendant said he understood his rights and agreed to speak
with police. Although the defendant argues that the police
mistreated him by not stopping the vehicle to allow him to
urinate, the judge did not find there was mistreatment.3 Rather,
the episode could be seen as an honest misunderstanding as to
how badly the defendant needed to relieve himself --
particularly where the defendant urinated in the police
officers' vehicle.4
With respect to the June 23 interview, the defendant
focuses our attention on alleged testimony that he tried to
consult with his mother beforehand and that his mother wanted to
be with him.5 Because the defendant was seventeen years old at
3
There was testimony that they were less than two blocks
away from the police station when the defendant first said he
had to urinate "really bad."
4
There was uncontroverted testimony that the defendant did
not complain of any discomfort at any time during the
interrogation.
5
The record indicates that police drove the defendant and
his mother to the police station at the request of the defendant
or his mother. It is not clear who made the request. Police
told the defendant and his mother that they wanted to interview
the defendant alone. There was no further discussion on the
matter.
15
the time, the "interested adult rule" was not applicable.6 See
Commonwealth v. Considine, 448 Mass. 295, 297 n.7 (2007), and
cases cited. The defendant was advised of his Miranda rights.
He acknowledged that he understood them, and he signed a written
waiver after indicating his willingness to speak to police. The
judge correctly concluded that, in the totality of the
circumstances, the defendant voluntarily waived his Miranda
rights.
We turn to the question of the voluntariness of the
defendant's statements. The factors considered when determining
whether a statement was voluntary are the same as those used to
determine whether a waiver of Miranda rights was voluntary, even
though the inquiries are separate and distinct. See Jackson,
432 Mass. at 85-86. No single factor is determinative, and a
statement will not be deemed involuntary due to the mere
presence of one or more of the factors. See Commonwealth v.
Selby, 420 Mass. 656, 664 (1995), S.C., 426 Mass. 168 (1997).
The defendant received, understood, and waived his Miranda
rights on June 21 and June 23 prior to making any statement.
There is no evidence that the police had taken an aggressive
posture during the interrogation on June 21, or that they
6
The "interested adult rule" arose in the common law. See
Commonwealth v. A Juvenile, 389 Mass. 128, 134 (1983). We
recently have modified the rule, on a prospective basis, to
include seventeen year old persons. See Commonwealth v. Smith,
471 Mass. 161, 166-167 (2015).
16
engaged in any trickery or deceit, or that they offered the
defendant any promise of leniency. See id. The interview
lasted approximately one hour, interspersed with three bathroom
breaks and a cigarette break -- not a particularly lengthy
interrogation. There is no evidence that the defendant's will
was overborne by the questioning. Id. at 663. Moreover, the
defendant held up under the circumstances, denying any
involvement in the killing. See Commonwealth v. Mazariego, 474
Mass. 42, 54 (2016). We conclude that there was no error in the
determination that the June 21 statement was voluntary.
The June 23 interrogation was somewhat different. Police
had interviewed several witnesses between June 21 and June 23.
At this second interrogation they told the defendant that
details in his June 21 statement were inconsistent with details
given by other witnesses, and that they had reason to believe
that he had not been truthful with them about where he had been
and what had occurred on June 20. The uncontroverted evidence
suggests that it was the defendant, and not the officers, who
assumed an aggressive tone. He raised his voice and repeatedly
demanded to see the gun, and to know who had contradicted his
account of events. After fifteen minutes, the defendant
terminated the interview. There is no indication that any
statement he made was involuntary.
17
Finally, after his arrest the defendant said the murder
charge was "bullshit" because police did not "have a gun." This
statement was not made in response to police questioning or its
functional equivalent, see Commonwealth v. Torres, 424 Mass.
792, 796-797 (1997), but was a spontaneous statement that did
not require suppression. See Commonwealth v. Clark, 432 Mass.
1, 15-16 (2000). There was no error in the denial of the
defendant's motion to suppress evidence.
4. Admission of accusations that defendant lied. The
defendant argues that accusations by police officers during the
interrogation of June 23 that he had lied during the
interrogation of June 21 should not have been admitted where he
denied those accusations. Where he denied those allegations, he
further contends that officers testified impermissibly about
information they obtained from witnesses and used during the
interrogation of June 23 to bolster their accusations that he
had lied previously on June 21, and such testimony violated his
constitutional rights of confrontation. The defendant is
correct. See Commonwealth v. Amran, 471 Mass. 354, 360-361
(2015), and cases cited. Because there was no objection, we
review under the standard of a substantial likelihood of a
miscarriage of justice. See Commonwealth v. Wright, 411 Mass.
678, 682 (1992), S.C., 469 Mass. 447 (2014).
18
The "information" police obtained from people they
interviewed in the course of their investigation was not
repeated either during the June 23 interrogation or at trial.
Police merely told the defendant that based on the results of
their investigation they knew he had been at Callahan State Park
with Gonzalez on June 20, 2009. They confronted him with their
belief, not with the details of what specific people had told
them, or who those people where, and that is what the jury
heard. At worst, the conclusory assertion that the defendant
and Gonzalez were together at the park at the time of the
shooting was cumulative of other testimony that was admitted
properly. That other testimony includes the testimony about the
defendant's expressed intent on June 19 to kill the victim; the
testimony of the mountain bikers who roughly described the three
men and the Volvo at the park shortly before the killing; the
surveillance photographs showing the Volvo and three occupants
approaching the park and minutes later showing the Volvo and two
occupants leaving the park; the recorded telephone calls from
the jail in which the defendant admitted to his grandmother that
he was present during the killing, and in which he told his girl
friend that Gonzalez was the shooter; and the statements to
police that implied he knew they did not have the gun used to
kill the victim. The jury also heard evidence about the alibi
he had first given police during the June 21 interview. The
19
impact of this graphic direct evidence of the defendant's
admissions and his actions far outweigh any prejudice in the
testimony of the police officers. The rather bland testimony in
question was brief, and we are satisfied that it did not likely
influence the jury's verdict. See Wright, 411 Mass. at 682.
5. Statement of Gonzalez. Gonzalez did not testify, but a
statement he made to police was admitted in evidence, over
objection, under the joint venture exception to the hearsay
rule. In that statement Gonzalez said that he, the defendant,
their girl friends, and the mother of one of the girl friends
went to lunch on June 20. After lunch, Gonzalez said he went to
work, where he stayed until 9 P.M. In the defendant's
statement, he also said that they went to the restaurant and
that Gonzalez drove them back to the defendant's girl friend's
apartment, where he remained for the rest of the day. The
defendant argues that Gonzalez's statement falls outside the
joint venture exception to the hearsay rule, and that it was a
testimonial statement barred by the right of confrontation under
the Sixth Amendment to the United States Constitution and art.
12 of the Massachusetts Declaration of Rights. See Crawford v.
Washington, 541 U.S. 36, 53-54 (2004); Commonwealth v. Gonzalez,
445 Mass. 1, 9 (2005), cert. denied, 548 U.S. 926 (2006).
We agree that Gonzalez's statement was not admissible under
the joint venture exception to the hearsay rule. The cases that
20
affirm the admission of joint venture hearsay statements after
the commission of the crime generally rest on direct or
circumstantial evidence that the coventurers had planned to
conceal the crime or their involvement in the crime. One
example of this involves an inference that may arise from the
telling of similar false stories. See, e.g., Commonwealth v.
Pytou Heang, 458 Mass. 827, 854 (2011); Commonwealth v. Brum,
438 Mass. 103, 116 (2002); Commonwealth v. Silanskas, 433 Mass.
678, 680, 693 (2001). Here, Gonzalez's account of his doings
between 12:30 and 2 P.M. on June 20 and the defendant's account
of his doings during the same time period were not similar, and
in the absence of some evidence that they specifically concocted
stories of the parting of their ways during that period of time
to conceal their involvement in the crime, there was no basis
for a jury to conclude that their respective alibis were
conceived "in furtherance of" the goal of the joint venture.
Silanskas, supra at 693. See Mass. G. Evid. § 801(d)(2)(E)
(2016).
The Commonwealth contends that there is an alternative
theory for the admissibility of Gonzalez's statement. It argues
persuasively that Gonzalez's statement was not hearsay because
it was not offered for the truth of the matter asserted, but as
a "foundation for later showing, through other admissible
evidence, that [it was] false." Anderson v. United States, 417
21
U.S. 211, 219-220 (1974). See Pytou Heang, 458 Mass. at 855;
Mass. G. Evid. § 801(c) (2016). Both Gonzalez's and the
defendant's statements about how they parted ways during the
early afternoon of June 20 could be seen as false in light of
the testimony of the mountain bikers, the video recording of
Gonzalez's Volvo entering and leaving the park at about the time
of the shooting, and the defendant's jailhouse telephone
recordings. Although Gonzalez's statement was "testimonial"
under Crawford, the confrontation clause "does not bar the use
of testimonial statements for purposes other than establishing
the truth of the matter asserted." Crawford, 541 U.S. at 59
n.9. See Pytou Heang, supra at 854-855.
To the extent that the defendant asserts error in the
admission of Gonzalez's statement as nonhearsay without a
limiting instruction that it could not be used to establish the
truth of the matter asserted, the claim is without merit. Trial
counsel declined any such instruction, preferring to leave the
matter for closing argument. The matter is deemed waived.
There is no resulting substantial likelihood of a miscarriage of
justice because both counsel brought out in closing that
Gonzalez had lied, or was a liar. We conclude that the judge
did not err in admitting Gonzalez's statement.
6. Jailhouse telephone calls. The defendant argues that
the judge failed to evaluate the balance between relevancy and
22
prejudice when admitting two of six jailhouse telephone calls in
evidence. The defendant objected to the evidence. We review
under the prejudicial error standard. See Commonwealth v. Rosa,
468 Mass. 231, 239 (2014). Whether the probative value of
evidence outweighs, or is outweighed by, its potential for
prejudice is a matter committed to the discretion of the trial
judge. Id. at 242.
The first call occurred on June 26, three days after the
defendant's arrest, and was between the defendant and his
father. The defendant can be heard considering his girl friend
as an alibi witness. The defendant contends that a jury could
be confused by the interplay between this call and the judge's
final instructions placing the burden of proof on the
Commonwealth. Specifically, the defendant suggests the jury
might have believed that he had a burden to present witnesses
but failed when his girl friend did not testify. The other call
about which the defendant complains, the sixth telephone call in
the series, was between him and his grandmother. He contends
the call was too ambiguous to have any probative value, where he
said the "devil was in me, for a little while . . . . I think
the devil told me to get in the car."
Although juror confusion is a factor to be considered in
weighing the potential prejudice of proffered evidence, see
Spencer, 465 Mass. 32, 53 (2013), here, the probative value of
23
the evidence in this case, in the context of other evidence,
strongly suggested that the defendant had given police a false
alibi and enlisted his girl friend to support his effort. This
was highly relevant evidence of consciousness of guilt that far
outweighed any potential prejudice. See Commonwealth v. Mejia,
88 Mass. App. Ct. 227, 237 (2015); Commonwealth v. Mitchell, 20
Mass. App. Ct. 902, 902 (1985).
The defendant's musing in the sixth call about being
possessed by the devil was highly probative of the issue of his
knowledge, both before and during the shooting, that he was
participating in a criminal act. This also was relevant as
rebuttal evidence to his claim at trial that, although he was
present during the commission of the crime, he did not go to the
park with any criminal intent and did not participate knowingly
in a joint criminal venture with Gonzalez.
With respect to the defendant's claim that the judge failed
to weigh the probative value against the potential prejudice of
this evidence, the record belies the claim. The judge discussed
the matter with counsel and redacted certain portions of the six
telephone calls to eliminate juror confusion or prejudice.
Trial counsel acknowledged that the judge's efforts had met his
concerns. We are satisfied that the judge properly exercised
her discretion in this regard, and that admission of the
telephone calls was not error. See Rosa, 468 Mass. at 242.
24
7. Jury instructions. The defendant asserts error in two
jury instructions. The first is the judge's declining to
instruct the jury that they could consider the defendant's youth
on the elements of intent, knowledge, and extreme atrocity or
cruelty, and on the issue of voluntariness of his statements.
The defendant had requested an instruction that would have told
the jury that "there was evidence that [the defendant] was a
juvenile and therefore had less or a diminished capacity than an
adult for making critical judgments." The requested instruction
directed the jury to find and apply diminished capacity to their
determination of the question of the Commonwealth's burden of
proving knowledge, intent, and the Cunneen factors insofar as
they are elements of the crime of murder. See Cunneen, 389
Mass. at 227.
Whether a defendant, because of youth, was incapable of
forming the requisite intent, or possessing the requisite
knowledge, or committing murder with extreme atrocity or
cruelty, is a question of fact. In Commonwealth v. Okoro, 471
Mass. 51, 65-66 (2015), we said that the trial judge correctly
excluded evidence that it was impossible for a juvenile to
formulate the requisite intent to commit murder. Here, the
defendant's requested instruction would have gone even further
than what the defendant in Okoro was not allowed to do. The
proposed instruction in this case essentially directed the jury
25
to accept, as a matter of law, that all juveniles lack the
capacity to form the requisite criminal intent to commit murder.
The defendant's requested instruction was not a correct
statement of law, and it was properly rejected.7
In Okoro, 471 Mass. at 66, we affirmed the trial judge's
ruling that permitted the juvenile defendant to present expert
testimony "regarding the development of adolescent brains and
how this could inform an understanding of this particular
juvenile's capacity for impulse control and reasoned decision-
making on the night of the victim's death" (emphasis added).
Here, there was no comparable factual development of the record,
by expert testimony or other evidence of mental impairment
specific to the defendant at the time of the killing, and there
was no evidence regarding adolescent brain development. Compare
Commonwealth v. Fitzmeyer, 414 Mass. 540, 549 (1993) (absent
evidence that defendant's medical problems resulted in condition
that diminished his knowledge of what he was doing or impaired
his ability to control his actions, defendant not entitled to
instruction that evidence of his mental impairment at time of
7
The defendant's attempt to apply the United States Supreme
Court's holding in Miller v. Alabama, 132 S. Ct. 2455 (2012), is
unavailing. The Court's focus was on the prohibition against
cruel and unusual punishment under the Eighth Amendment to the
United States Constitution as it applied to sentencing and
punishment of juveniles. The Supreme Court did not discuss case
law or statutory law addressing intent, knowledge, or deliberate
premeditation as elements of a crime. Id. at 2464.
 26
crime should be considered in determining his culpability for
murder in first degree). Because there was no evidence as to
the defendant's circumstances with respect to neurological
issues and brain development, he was not entitled to the type of
instruction that we approved in Okoro.
There is no merit to the defendant's argument that the
judge prevented the jury from considering his youth on the issue
of the voluntariness of his statements. The judge gave a humane
practice instruction in which he told the jury that the
voluntariness of any statement made by the defendant must be
determined from the "totality of the circumstances." This was a
correct statement of the law. See Commonwealth v. Cruz, 373
Mass. 676, 688-689 (1977). Moreover, trial counsel repeatedly
emphasized the defendant's youth during closing argument,
focusing on his being only seventeen years of age no fewer than
six times. There was no error.
There also was no error in the judge's instruction that
"police are under no legal obligation to give people seventeen
years or older an opportunity to have a parent accompany him or
her in a police interview." This was a correct statement of the
law at the time of trial.8 See Commonwealth v. Smith, 471 Mass.
8
The Legislature changed the age until which a person will
be treated as a juvenile from seventeen to eighteen, by enacting
St. 2013, c. 84, §§ 7-27, which amended various sections of
G. L. c. 119 (proceedings against delinquent children),
27
161, 165-167 (2015). The instruction did not preclude the jury
from considering the defendant's age when determining whether
his statements were made voluntarily. As noted above, trial
counsel argued the point forcefully in his closing argument.
The second assignment of error in the jury instructions
concerns the instruction on the theory of extreme atrocity or
cruelty. The defendant faults the judge for declining to
instruct the jury that they must be unanimous as to at least one
of the Cunneen factors in order to find the defendant guilty of
murder in the first degree on the theory of extreme atrocity or
cruelty. See Cunneen, 389 Mass. at 227. We expressly have
rejected the necessity of such an instruction, see Commonwealth
v. Morganti, 455 Mass. 388, 407 (2009), S.C., 467 Mass. 96
(2014), and the defendant has offered nothing that persuades us
otherwise. The judge instructed the jury conformably with the
Model Jury Instructions on Homicide (1999), which were
applicable at that time.
There is no merit to the defendant's assertion that the
trial judge erred by failing to instruct the jury that the
Commonwealth must prove that the defendant intended his actions
to be extremely atrocious or cruel. The defendant did not
request such an instruction, so our review is limited to a
effective September 18, 2013. The defendant made his statements
in June, 2009. The statutory amendment did not apply to him.
See Commonwealth v. Smith, 471 Mass. 161, 165-167 (2015).
28
determination whether any error created a substantial likelihood
of a miscarriage of justice. See Wright, 411 Mass. at 682. We
have never said that a defendant must be shown to have had such
an intent. See Commonwealth v. Akara, 465 Mass. 245, 260
(2013); Commonwealth v. Szlachta, 463 Mass. 37, 47 (2012),
citing Cunneen, 389 Mass. at 227. In any event, we need not
decide the question, as the defendant also was convicted of
murder in the first degree on the theory of deliberate
premeditation.
8. Review under G. L. c. 278, § 33E.9 We have reviewed the
briefs and the entire record and discern no reason to reduce the
degree of guilt or grant a new trial pursuant to our powers
under G. L. c. 278, § 33E.
Judgments affirmed.
9
The parties did not brief the question, which we leave for
another day, whether a juvenile convicted of murder in the first
degree is entitled to plenary review under G. L. c. 278, § 33E,
and is subject to the gatekeeper provision of that statute; or
whether such a defendant is not entitled to plenary review but
is entitled to a right of appeal from the denial of all motions
for a new trial. Cf. Commonwealth v. Angiulo, 415 Mass. 502,
507-510 (1993) (unique severity of mandatory life sentence
without possibility of parole for conviction of accessory to
murder in first degree justifies treatment under § 33E even if
crime is not capital offense).