Commonwealth v. Schoener

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SJC-13318
COMMONWEALTH vs. MICHAEL SCHOENER.
Norfolk. January 4, 2023. - April 18, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Kidnapping. Accessory and Principal. Evidence, Accomplice,
Intent, Hearsay, State of mind, Verbal completeness.
Intent. Practice, Criminal, Instructions to jury, Judicial
discretion, Hearsay.
Indictment found and returned in the Superior Court
Department on August 5, 2014.
The case was tried before Robert C. Cosgrove, J., and a
motion for postconviction relief was heard by him.
The Supreme Judicial Court granted an application for
direct appellate review.
Erin R. Opperman for the defendant.
Pamela Alford, Assistant District Attorney, for the
Commonwealth.
GEORGES, J. In the months leading up to New Year's Day,
2014, the defendant, Michael Schoener, then a Dedham police
officer, provided several specific items to his drug supplier,
2
James Feeney, at Feeney's request. These items included the
board of probation (BOP) records and driver's license
information of the victim, James Robertson, as well as the
defendant's Dedham police badge, gun holster, and handcuffs.
After having done so, the defendant continued his relationship
as a regular purchaser of Percocet pills from Feeney. Feeney
provided the victim's information and the defendant's items to
his associates, Scott Morrison and Alfred Ricci. As instructed
by Feeney, Morrison and Ricci used the police equipment and
their knowledge of the victim's personal information to
impersonate law enforcement officers and to convince the victim
that they were at his house to take him to complete a mandatory
drug test.1 They handcuffed the victim and drove him to Ricci's
garage, where they shackled him to a chair. Feeney directed
Ricci and Morrison to leave the garage; later that night, Feeney
called Ricci and Morrison to help him dispose of the victim's
body. One year later, the victim's remains were found in a
nearby wooded area.
The defendant was charged and convicted of being an
accessory before the fact to kidnapping, G. L. c. 265, § 26.
Feeney, Morrison, and Ricci were charged with kidnapping and
murder in the first degree, among other charges. On appeal, the
1 The victim was on probation and was required to take
mandatory drug tests; Feeney was aware of this requirement.
3
defendant argues that there was insufficient evidence to prove
that he knew that Feeney would use the items he provided to
kidnap the victim or that he intended the kidnapping to happen.
Accordingly, we must address in this case what constitutes
sufficient evidence of knowledge and intent to support a
conviction of accomplice liability to kidnapping. The defendant
also argues that there were numerous errors in the judge's
instruction on the elements of accessory to kidnapping. In
addition, the defendant contends that his statements in his
August 6, 2014, interview with police, following his indictment,
should have been admissible to impeach the testifying officer.
We conclude that the evidence was sufficient for a jury to
find beyond a reasonable doubt that the defendant knowingly
participated in the kidnapping by providing the items to Feeney
and, in so doing, shared Feeney's intent that the kidnapping
take place. We reach this determination in part based on the
specific items provided by the defendant -- his police badge,
gun holster, and handcuffs -- and their nexus to the elements of
kidnapping. We also conclude that the judge's instructions to
the jury were not erroneous. Moreover, there was no abuse of
discretion in the judge's decision to exclude the defendant's
August 6 statements. Accordingly, we affirm the defendant's
conviction and the order denying his motion for postconviction
relief.
4
1. Background. We recite the facts in the light most
favorable to the Commonwealth. See Commonwealth v. Kostka, 489
Mass. 399, 400 (2022). A conviction may rest exclusively on
circumstantial evidence, and in evaluating that evidence, we
draw all reasonable inferences in favor of the Commonwealth.
Commonwealth v. Rakes, 478 Mass. 22, 32 (2017).
a. Events prior to the kidnapping. By the summer of 2013,
the defendant had been purchasing Percocet from Feeney for
almost two years. The defendant had been introduced to Feeney
through a mutual friend, who also had sold Percocet to the
defendant; eventually, the defendant switched to purchasing
Percocet directly from Feeney. At that time, the defendant had
been a patrol officer in the Dedham police department for eight
years. His patrol officer's uniform included four badges -- one
wallet badge, and three that he wore on his hat, shirt, and
jacket -- and two sets of handcuffs.
During the period from 2013 into 2014, the defendant went
to Feeney's Dedham apartment approximately two to three times
each week to purchase Percocet pills. On average, he spent
approximately $300 per week for about ten pills. The defendant
spent roughly fifteen minutes with Feeney during each visit. On
some occasions, the defendant was wearing his police uniform
pants when he came to make the purchase.
5
In the summer of 2013, the defendant had learned from
Feeney that there was a "love triangle" between Feeney, Andrea
Morse, and the victim. Morse had known Feeney since 2005, and
the two commenced a romantic relationship shortly before Morse
met the victim in 2013. On separate occasions, Feeney spoke to
the defendant about his animosity towards the victim and
referred to the victim as a "drunken piece of shit." The
defendant had seen Morse at Feeney's apartment. Additionally,
on at least one occasion while he was at Feeney's apartment, the
defendant briefly met Ricci, who was Feeney's cousin, and
Morrison.
At trial, Morse testified that at one point during the
summer of 2013, the victim, while intoxicated, drove to Feeney's
apartment and then attempted to break into Feeney's car, but
inadvertently broke into someone else's vehicle and was
arrested. Feeney was very angry at the victim for coming to his
house, and he believed that the victim had been there to assault
him. The victim was incarcerated briefly and then released on
probation. Feeney knew that, as a condition of his probation,
the victim was required to undergo drug testing.
Later that summer, Morse and the victim went to the Dedham
police station to retrieve Morse's impounded car. The defendant
was on duty, and Morse recalled that he looked "very nervous" at
the sight of the two. Morse believed this was because the
6
defendant recognized her from Feeney's apartment. The defendant
mentioned to Feeney that he had seen the victim and Morse at the
police station when they were picking up Morse's impounded
vehicle.
On separate occasions in the summer and fall of 2013,
Feeney requested that the defendant check the license plate
numbers of drivers who, among other things, Feeney thought had
"cut him off on the highway"; the defendant did as requested.
As a police officer, the defendant had the ability to check BOP
records and license plate numbers.
After the victim's arrest, Feeney requested the victim's
BOP record and license information, including a photograph.
When the defendant asked Feeney why he wanted the information,
Feeney replied that he had heard that the victim had been
incarcerated and wanted to know why. Feeney did not explain why
he wanted the license information or the photograph. Sometime
after Thanksgiving 2013, Feeney gave the defendant fifteen
Percocet pills as a "Christmas gift."
At some point between Thanksgiving and Christmas, Feeney
asked to borrow the defendant's police badge, handcuffs, and
holster. During a later interview with State police Trooper
Bruce Tobin and Lieutenant Gerard Mattaliano, the defendant said
that he did not ask Feeney why he wanted the items, because he
wanted to keep their relationship friendly. In his testimony
7
before the grand jury investigating the victim's disappearance,
when the defendant was asked why he thought that Feeney wanted
his police badge, he responded:
"I mean, I didn't really question it. I just said,
what do you need it for. At first I was taken aback,
you know. He goes, Oh, I just want to use it. And so
me being naïve, I guess, I just gave it to him."
When the defendant was asked why he thought Feeney wanted
his handcuffs, the defendant said, "I think he just implied
that it might have been, I didn't really ask him. I
thought they were for his girlfriend or something, you
know." Even though he thought that Feeney already owned
handcuffs, the defendant gave the handcuffs to Feeney.
When Feeney asked for the holster, the defendant explained
that he thought that Feeney "was just kind of like joking
about it, you know. I mean, I didn't, I wasn't thinking
right. . . . I was addicted to pills so I just was trying
to keep my avenues of getting those open, I guess, and I
wasn't thinking right."
The defendant brought the items to Feeney the next
time that he was at Feeney's apartment, a few days before
New Year's Day 2014. Feeney did not mention his purpose in
requesting them and did not mention the victim. The
defendant explained before the grand jury that Feeney "said
he wasn't going to do, you know. He just didn't really
8
imply anything, so I didn't. I just wasn't thinking." The
defendant added that he did not receive anything, such as
Percocet pills or money, for allowing Feeney the use of the
equipment, but that he gave Feeney the items in an attempt
to protect his means for purchasing Percocet pills.
At some point prior to January 1, 2014, appearing
"disturbed," Feeney had mentioned to Ricci that Morse had chosen
the victim over Feeney. "A couple months before" January 1,
2014, Feeney approached Ricci and Morrison about posing as law
enforcement officers so they could pick the victim up and bring
him to Feeney, who said that he wanted to talk to the victim.
During the month of December 2013, Feeney discussed this plan
with increasing frequency; he told Ricci that he was "getting
stuff together." Feeney then showed Ricci a folder containing
the victim's BOP record and his registry of motor vehicles (RMV)
photograph that Feeney said he had obtained from his "cousin."
Feeney told Ricci that the police query was part of the plan and
showed Ricci a badge, a gun, a set of handcuffs, and a
nightstick, all of which he said he also had obtained from his
cousin. Feeney subsequently told Ricci and Morrison that they
were to go to the victim's house, show him a badge, a gun, his
BOP record, and his RMV photograph, and then handcuff him as if
they were transporting him to the office where he met his
probation officer, but instead bring him to Ricci's garage.
9
Ricci testified that Feeney only discussed the plan with him and
Morrison. Ricci did not speak with, call, or send text messages
to the defendant, and the defendant never communicated with
Ricci.
b. The kidnapping. On January 1, 2014, Morse dropped off
the victim at his parents' house at around 11:30 A.M. Morse
then called Feeney to let him know where the victim was.
Morrison received a telephone call from Feeney to go get the
victim, in the manner that Feeney had described. Morrison and
Ricci drove to the victim's parent's house and parked across the
driveway. Ricci testified that he and Morrison were dressed as
"probation officer[s] or constable[s]." Morrison had a police
badge on his belt and a gun in a holster, and he was holding
handcuffs in one hand and a folder with the defendant's records
in the other. Ricci also was carrying a gun and wearing a
badge.
The victim briefly went outside, came back into the house,
and told his parents that he had to go with the "constables" who
were outside in order to take a random drug test. When the
victim's father asked how the victim knew that the men were
constables, the victim said that they looked official, had the
correct documents with his name and photograph, and were wearing
police badges. Returning outside, the victim asked Morrison
where they were going, and Morrison replied that they were going
10
to Dedham. Ricci and Morrison then handcuffed the victim, who
got into the rear seat of their vehicle. The victim's family
never heard from him again.
Ricci and Morrison brought the victim to Ricci's house and
shackled him to a chair in the garage. Feeney told Ricci and
Morrison to leave the garage. At some point later that day,
after Ricci and Morrison left, Feeney killed the victim. Later
that night, Feeney then drove Ricci and Morrison to a wooded
area and directed them to dispose of the victim's body a few
hundred feet into the woods.
Earlier, at 3:31 P.M, Feeney had called the defendant; the
call went to voicemail. The defendant then drove to Feeney's
apartment, and Feeney returned the handcuffs, badge, and
holster. The items were in the same condition as they had been
when Feeney took them. Feeney made no mention of what he had
done with them.
c. Events after the kidnapping. Following the return of
his police equipment, the defendant continued to stay in contact
with Feeney in order to purchase pills. At some point, the
defendant saw the victim on a missing persons poster at the
Dedham police station. The poster had a description of two
suspects it said had impersonated constables. That evening, the
defendant called Feeney and asked him several times whether he
had had anything to do with the disappearance. Feeney said
11
repeatedly that "someone beat [him] to it." The defendant later
told Tobin and Mattaliano, and testified before the grand jury,
that he did not inquire further because he "didn't want to be
involved."
On February 27, 2014, following Feeney's arrest for drug
distribution, police executed a search warrant for his
apartment.2 The police found several firearms, including a
pistol, and a bag containing handcuffs, zip-ties, and a police
baton. The police baton and the packaging for the zip ties
tested positive for the presence of blood. Deoxyribonucleic
acid (DNA) testing indicated that the alternate major DNA
profile in the blood "matched" the victim's DNA profile. The
items that the defendant had lent to Feeney tested negative for
the presence of blood.
Also on February 27, 2014, Lieutenant David McSweeney and
Trooper Brian Tully, who were investigating the disappearance of
the victim, contacted the defendant after they learned that his
telephone number appeared in Feeney's cell phone records. When
McSweeney and Tully told the defendant that they were
investigating a missing person, he responded, "Is this about
Feeney?" The defendant said that he knew there was a missing
2 The search was paused so that police could obtain a search
warrant for Feeney's apartment to search for evidence related to
the victim's disappearance. Once the additional warrant was
obtained, police resumed the search.
12
person who had dated Feeney's girlfriend. He also told the
officers that he had asked Feeney about the victim and that he
did not think Feeney had had anything to do with the
disappearance, or was capable of kidnapping the victim. This
belief was based in part on the defendant's understanding that
Feeney used a wheelchair and was unable to walk.
On July 24, 2014, the defendant was interviewed by Tobin
and Mattaliano,3 immediately prior to his testimony to the grand
jury that was investigating the victim's disappearance. The
defendant told the officers that he had purchased Percocet pills
several times a week at Feeney's apartment and that he had
obtained a motor vehicle crash report and checked a vehicle
registration through RMV records. The defendant described what
he knew of the animosity between Feeney and the victim and
explained that, after he saw a photograph of the victim on a
missing persons poster at the police station, he had asked
Feeney whether Feeney had had anything to do with the victim's
disappearance, and Feeney repeatedly had denied any involvement.
That same day, the defendant testified before the grand
jury investigating the victim's disappearance concerning his
knowledge of that disappearance. Before testifying, the
3 At the beginning of the conversation on July 24, 2014, the
defendant signed a Miranda waiver form. At that point, no
indictment had issued against him.
13
defendant was advised of his right to counsel and his right to
remain silent. At trial, Tobin testified to the substance of
his conversation with the defendant on July 24, 2014, and the
defendant's grand jury testimony was read in evidence.
On August 5, 2014, the grand jury returned an indictment
charging the defendant with one count of being an accessory
before the fact to the kidnapping of the victim; the indictment
was dated July 31, 2014. Tobin and Mattaliano interviewed the
defendant again on August 6, 2014. At the beginning of the
interview, the officers informed the defendant that he had been
indicted and a warrant had been issued for his arrest. The
defendant agreed to waive his Miranda rights and speak with the
officers, and he signed a Miranda waiver form.
At a joint trial with Morrison, Feeney was convicted of
murder in the first degree, aggravated kidnapping, and
conspiracy. Morrison was convicted of manslaughter, aggravated
kidnapping, and conspiracy. Ricci entered into a plea agreement
providing that, in exchange for testifying at his three
codefendants' trials, he would plead guilty to aggravated
kidnapping and conspiracy and would receive a sentence of eight
years of incarceration.4
4 As of this writing, Morrison's appeal remains pending
before the Appeals Court, see Commonwealth vs. Morrison, No. 21-
P-0699, and Feeney's appeal is pending before this court, see
Commonwealth vs. Feeney, SJC-13163.
14
d. Prior proceedings. In February of 2016, a Superior
Court judge, who was not the trial judge, denied the defendant's
motion to dismiss. The Commonwealth then moved in limine to
exclude the defendant's August 6 statements to Tobin and
Mattaliano. The trial judge allowed the motion.
The defendant's trial on the charge of being an accessory
before the fact to kidnapping took place over ten days. His
motions for required findings at the close of the Commonwealth's
case, and again at the close of all the evidence, were denied.
The judge also declined to instruct on certain elements of the
offense using the specific language the defendant requested.
The defendant was convicted and sentenced to from six to
nine years in State prison. His sentence was stayed pending his
direct appeal. The trial judge denied the defendant's motion to
set aside the verdict and to enter a verdict of not guilty or to
grant a new trial, and the defendant filed a second notice of
appeal. The defendant's motion to consolidate his appeals was
allowed. We subsequently allowed the defendant's application
for direct appellate review.
2. Discussion. On appeal, the defendant argues that the
Commonwealth failed to introduce sufficient evidence to prove
that he was a knowing participant in the kidnapping and intended
that it happen. The defendant also argues that the judge's
instructions on certain elements of the offense of being an
15
accomplice to kidnapping were erroneous and that the judge
abused his discretion in excluding the defendant's statements to
police concerning his knowledge of what Feeney intended to do
with the items he borrowed.
a. Sufficiency of the evidence. The defendant's arguments
as to why the evidence was insufficient focus on the lack of
evidence of his knowledge of the planned kidnapping, and of his
intent that it succeed. The defendant contends that his
unwitting assistance in lending the items to Feeney is
insufficient to show that he acted knowingly with the specific
intent of helping the kidnapping to succeed. He notes that the
nature of the police equipment lent does not, without more,
prove his knowledge of the planned kidnapping or an intent to
kidnap, as Feeney could have used the police equipment for
numerous other (and much more ordinary) purposes, rather than to
further a kidnapping. Sustaining his conviction in the absence
of direct evidence, the defendant argues, would require the jury
to speculate about his knowledge and intent and be based
primarily on character evidence.
"When reviewing a motion for a required finding of not
guilty, the 'question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt'" (emphasis in original).
16
Commonwealth v. Grassie, 476 Mass. 202, 207 (2017), S.C., 482
Mass. 1017 (2019), quoting Commonwealth v. Latimore, 378 Mass.
671, 677 (1979). "The relevant question is whether the evidence
would permit a jury to find guilt [beyond a reasonable doubt],
not whether the evidence requires such a finding." Commonwealth
v. Brown, 401 Mass. 745, 747 (1988). Circumstantial evidence is
competent to establish guilt beyond a reasonable doubt,
Commonwealth v. Nadworny, 396 Mass. 342, 354 (1985), cert.
denied, 477 U.S. 904 (1986), and the reasonable inferences drawn
from such evidence "need not be necessary or inescapable," only
"reasonable and possible" (citation omitted), Commonwealth v.
Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007) and
460 Mass. 12 (2011). At the same time, a conviction may not
rest on the piling of inference upon inference or on conjecture
and speculation. Id.General Laws c. 274, § 2, the statute under which the
defendant was convicted, provides that "[w]hoever aids in the
commission of a felony, or is accessory thereto before the fact
by counselling, hiring or otherwise procuring such felony to be
committed, shall be punished in the manner provided for the
punishment of the principal felon." Marshall v. Commonwealth,
463 Mass. 529, 536-537 (2012) (conduct that historically has
been described as accessory before fact "plainly falls under the
rubric of accomplice liability"). See Commonwealth v. Zanetti,
17
454 Mass. 449, 467 (2009) ("At its core, joint venture criminal
liability has two essential elements: that the defendant
knowingly participated in the commission of the crime charged,
and that the defendant had or shared the required criminal
intent"). To establish intent for purposes of accessory
liability, there must be "proof that the defendant
'consciously . . . act[ed] together [with the principals] before
or during the crime with the intent of making the crime
succeed'" (citation omitted). Commonwealth v. Gonzalez, 475
Mass. 396, 414 (2016). To sustain a conviction of kidnapping
requires the Commonwealth to prove that the defendant "forcibly
or secretly confine[d] or imprisone[d] another person . . .
against his [or her] will" and "without lawful authority."
G. L. c. 265, § 26. Accordingly, to convict a defendant of
being an accessory before the fact to kidnapping, the
Commonwealth must prove that the defendant knowingly
participated in the confinement of another person, forcibly and
without lawful authority, and intended to do so. See
Commonwealth v. Fredette, 480 Mass. 75, 86 (2018).
"[A] person's knowledge or intent is a matter of fact which
is often not susceptible of proof by direct evidence, so resort
is frequently made to proof by inference from all the facts and
circumstances developed at the trial." Commonwealth v. Kilburn,
426 Mass. 31, 34 (1997), S.C., 438 Mass. 356 (2003), quoting
18
Commonwealth v. Stewart, 411 Mass. 345, 350 (1991). "Whether an
inference is warranted or is impermissibly remote must be
determined, not by hard and fast rules of law, but by experience
and common sense." Kilburn, supra at 34-35, quoting
Commonwealth v. Chay Giang, 402 Mass. 604, 609 (1988). Evidence
of a conditional or contingent intent may be sufficient to
uphold a conviction of being an accessory to a crime. See
Commonwealth v. Richards, 363 Mass. 299, 308 (1973) (defendant
provided guns that were intended for contingent use during
course of robbery "if the need should arise").
Here, evidence was introduced concerning the defendant's
and Feeney's interactions from which the jury could have found
that the defendant was well aware of the mutual hostility
between Feeney and the victim. There was evidence that the
defendant and Feeney had a friendly, mutually beneficial
relationship. The defendant regularly, and without question,
provided Feeney with driving records of individuals against whom
Feeney appeared to harbor animosity. The victim was arrested
while he was attempting to break into Feeney's car, an incident
that led Feeney to request that the defendant obtain the
victim's BOP and driver's license records, using the defendant's
access as a police officer. The jury also heard evidence that
the defendant was aware of the "love triangle" between the
victim, Feeney, and Morse, and also knew that Feeney was
19
"disturbed" by the victim, whom Feeney described as a "piece of
shit."
Given the evidence of the defendant's knowledge of Feeney's
animosity towards the victim, the jury could have inferred that,
by providing Feeney with the police badge, handcuffs, and
holster, the defendant was willing that the equipment be used
unlawfully to confine another using force, if necessary. See
Richards, 363 Mass. at 308 (to establish liability for being
accessory before fact, "it would suffice if the purpose to
[commit the crime] in the mind of the accessory was a
conditional or contingent one, a willingness to see [the act]
take place should it become necessary to effectuate [the motive
underlying the offense or] "make good an escape").
The primary function of a police badge is to identify its
holder as having lawful authority. See Commonwealth v. Gray,
423 Mass. 293, 296 (1996) ("Although the officer was not in
uniform, the flashing strobe lights on an automobile being
driven by a man displaying a badge gave the defendant sufficient
notice that he was being stopped by a person with authority").
"Symbolizing the power of the [S]tate, a badge invests its
possessor with control over people and access to places."
United States v. Foreman, 926 F.2d 792, 795 (9th Cir. 1990).
Here, the jury heard testimony by a State police trooper that
his badge identified him as a police officer and gave him legal
20
authority. See id. ("A police officer knows the power of [his]
badge").
Moreover, the defendant had seen a number of guns,
including a small black pistol, at Feeney's apartment. See
People v. Majors, 33 Cal. 4th 321, 331 (2004) (implicit threat
of arrest satisfied force element of kidnapping, as defendant's
conduct and his statements caused victim to believe that unless
victim accompanied defendant, victim would be forced to do so).
The jury would have been warranted in inferring that, in lending
Feeney his police holster, the defendant intended that the
holster would be used with one of Feeney's guns so as to
impersonate an officer and intimidate the victim. See
Commonwealth v. Lewis, 465 Mass. 119, 126 (2013) (presence of
gun may imply intent to frighten and deter); Commonwealth v.
Stout, 356 Mass. 237, 240 (1969) ("One does not transmit guns to
others without some purpose in mind . . .").
In the context of the offense of kidnapping, we have
interpreted the term "confinement" to mean "[a]ny restraint of a
person's liberty." Commonwealth v. Witkowski, 487 Mass. 675,
682 (2021), quoting Commonwealth v. Dykens, 438 Mass. 827, 841
(2003). See Commonwealth v. Oberle, 476 Mass. 539, 548 (2017)
(confinement is "broadly interpreted to mean any restraint of a
person's movement" [citation omitted]). Handcuffs are "one of
the most recognizable indicia of a traditional arrest." See
21
United States v. Acosta-Colon, 157 F.3d 9, 18 (1st Cir. 1998).
See also Fisher v. Las Cruces, 584 F.3d 888, 897 (10th Cir.
2009). "Common sense and experience teach that it is a normal
and regular as well as a highly desirable and necessary practice
to handcuff prisoners when they are being taken from one place
to another" (quotation and citation omitted). See E.W. v.
Dolgos, 884 F.3d 172, 193 (4th Cir. 2018) (Shedd, J.,
concurring). While not indisputable, the jury's inferences here
were rational. Our review is limited to determining whether the
loan of the handcuffs, taken together with the badge, the
holster, and the victim's BOP records and driver's license
information, provided sufficient evidence to support a finding
that the defendant intended the handcuffs be used to confine
another. See Winding v. State, 908 So. 2d 163, 171 (Miss. Ct.
App. 2005) (evidence of handcuffs was probative of testimony
that defendant masqueraded as police officer in order to
kidnap). We conclude that it did.
The defendant lent the police equipment to Feeney within a
few months of the victim's attempted break-in of Feeney's
vehicle and less than one month after the defendant's having
obtained the victim's BOP records. Moreover, the defendant lent
Feeney the police equipment soon after Feeney gave him free
Percocet pills. Where Feeney said that he "just want[ed] to use
[the items]," the jury reasonably could have concluded, from the
22
nature of the police equipment and Feeney's demonstrated
hostility to the victim, that the defendant provided those items
with a willingness that Feeney use them to restrain, unlawfully
and with force, a person he was targeting (as indicated by the
request for the victim's BOP and RMV records). See Commonwealth
v. Noble, 417 Mass. 341, 346 (1994) (circumstantial evidence was
sufficient to show that defendant knew of perpetrator's intent
to seek revenge against victim, and aided perpetrator's plan by
providing disguise).
We have limited the drawing of inferences concerning a
defendant's knowledge of a codefendant's knowledge and intent,
based on the nature of certain objects, to a narrow set of
circumstances. For instance, we have concluded that a jury
reasonably could have drawn an inference that a defendant knew
that a coventurer was armed, because the victim was a known drug
dealer who kept an unlicensed gun on the premises. See
Commonwealth v. Cannon, 449 Mass. 462, 470-471 (2007). We have
affirmed a conviction that rested on a conclusion that a
defendant intended a robbery, and did not simply purchase
illegal drugs, where the defendant proposed a plan for the
robbery and provided his codefendant with a gun. See
Commonwealth v. Benitez, 464 Mass. 686, 690 (2013).
Not infrequently, we have concluded that the evidence was
sufficient to sustain a conviction where the jury found that a
23
defendant intended to distribute illegal drugs, because the
drugs were present on the defendant's person, as were
significant amounts of cash, baggies, and multiple cell phones.
See, e.g., Commonwealth v. Gonzalez, 452 Mass. 142, 147-149
(2008). We also have concluded that the provision of
accelerants, such as gasoline, in conjunction with other
evidence, may permit an inference that a defendant had the
requisite intent to commit arson. See Commonwealth v. Dung Van
Tran, 463 Mass. 8, 27 (2012) (evidence that defendant carried
can of gasoline into apartment, poured it on floor, and then
ignited it supported inference of intent to burn apartment);
Choy v. Commonwealth, 456 Mass. 146, 150 (2010) (gasoline on
defendant's sweatpants supported finding that fire was
intentionally set). By extension, the jury reasonably could
have drawn such an inference here, given the specific crime of
kidnapping, the defendant's knowledge of Feeney's hostility
toward the victim, and the combination of the particular items
provided by the defendant.
"There is a presumption that all men intend the natural and
probable consequences of their acts." Commonwealth v.
Asherowski, 196 Mass. 342, 348 (1907). While not the only
reasonable conclusion that could be drawn from this evidence,
the jury could have found the existence of a tacit understanding
on the part of the defendant that he was providing the requested
24
items to Feeney with the contingent intent that they be used as
Feeney saw fit, and that the defendant did so in order to
maintain access to Feeney's supply of Percocet pills. "The line
that separates mere knowledge of unlawful conduct and
participation in it, is 'often vague and uncertain. It is
within the province of the jury to determine from the evidence
whether a particular defendant [has] crossed that line.'"
Commonwealth v. Longo, 402 Mass. 482, 487 (1988), quoting
Commonwealth v. Cerveny, 387 Mass. 280, 287 (1982). See
Richards, 363 Mass. at 308. In determining whether the evidence
was sufficient to show that the defendant harbored such a
contingent intent, we do not reweigh the evidence in order to
decide whether the determination that the jury reached is
correct. Rather, after considering the evidence and the
inferences to be drawn therefrom in the light most favorable to
the Commonwealth, we decide only whether the jury made a
rational decision based on the evidence before them. See
Latimore, 378 Mass. at 677-678.
b. Jury instructions. The defendant also contends that
several of the judge's instructions on the elements of the
offense were erroneous and require a new trial.
i. Instruction on element of participation. The defendant
argues that the judge erred in describing "assistance," "aid,"
and "encouragement" as relevant conduct for the charge of
25
accessory before the fact. This alleged error improperly
expanded the scope of the crime to include acts that are
encompassed only in the crime of aiding and abetting, for which
the defendant was not indicted. The defendant also maintains
that the improper instruction allowed the jury to find guilt
without finding the required element of knowing participation.
The defendant submitted proposed jury instructions,
including the following proposed language on the element of
participation:
"To prove the defendant guilty of being an accessory before
the fact to a felony, the Commonwealth must prove three
things beyond a reasonable doubt . . . . Second: That the
defendant was an accessory to that felony by counseling,
hiring, or otherwise procuring that person to commit the
felony . . . . [T]he Commonwealth must prove that this
defendant participated in . . . committing the offense by
counseling, hiring, or otherwise procuring the principal,
or agreeing to stand by, at or near the scene to render
aid, assistance and encouragement. . . . A conviction as
an accessory before the fact requires not only knowledge of
the crime and a shared intent to bring it about, but also
some sort of act that contributes to its happening."
The portion of the judge's instruction on participation that the
defendant contested stated:
"To prove that [the defendant] is guilty of the crime of
accessory before the fact to kidnapping, the Commonwealth
must prove three things beyond a reasonable doubt. . . .
Second, that [the defendant] in some way assisted in that
felony by hiring or procuring it to be committed or by
providing counseling, assistance, aid of some sort or
encouragement before the felony was actually committed.
Third, that [the defendant] not only had knowledge of the
crime, but shared [Feeney's] intent to bring it about."
26
Because the defendant objected, we review for prejudicial
error. See Commonwealth v. Teixeira, 490 Mass. 733, 742 (2022).
Thus, we analyze, first, whether there was error, and second, if
so, whether the defendant was prejudiced by the error. Id.,citing Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). "An
error is not prejudicial if it did not influence the jury, or
had but very slight effect; however, if we cannot find with fair
assurance, after pondering all that happened without stripping
the erroneous action from the whole, that the judgment was not
substantiality swayed by the error, then it is prejudicial."
Teixeira, supra, quoting Cruz, supra.In Marshall, 463 Mass. at 535, quoting Zanetti, 454 Mass.
at 464, we held that the two prongs established under G. L.
c. 274, § 2,5 are a "false distinction[]," and instead endorsed a
long-standing "unified theory of joint venture liability."
Marshall, supra at 537 n.12. As the language of the instruction
set forth in Zanetti recognizes, "a wide range of conduct
underlying a person's liability for a criminal offense,
including that which had historically been described as
accessory before the fact to a felony or aiding and abetting a
5 As stated, G. L. c. 274, § 2, provides that "[w]hoever
aids in the commission of a felony, or is accessory thereto
before the fact by counselling, hiring or otherwise procuring
such felony to be committed, shall be punished in the manner
provided for the punishment of the principal felon."
27
felony, plainly falls under the rubric of accomplice liability."
Marshall, supra at 536-537.
Thus, the actions of one who "aids" in the commission of an
offense and the actions of "accessories before the fact" do not
constitute "separate and distinct offenses," Commonwealth v.
Rodriguez, 457 Mass. 461, 485 (2010), but, rather, represent
different routes to a determination of criminal liability for a
defendant who knowingly participates in a crime, see Marshall,
463 Mass. at 535 ("prosecut[ing] on a theory of aiding and
abetting . . . is not a lesser included offense of accessory
before the fact . . . . Rather, the two are different species
of the same crime"). The types of conduct specified in G. L.
c. 274, § 2 -- "aid[ing] in the commission of a felony" or
"counselling, hiring or otherwise procuring such felony to be
committed" -- represent equal and interchangeable grounds for
criminal liability to the extent that such actions constitute
"knowing participation," Marshall, supra, that is "significant,"
Commonwealth v. Ortiz, 424 Mass. 853, 856 (1997), quoting
Commonwealth v. Raposo, 413 Mass. 182, 185 (1992).
Given our continued endorsement of a unified theory of
joint venture liability, the judge did not err in referring to
the provision of "assistance," "aid," and "encouragement" as
relevant conduct to establish the offense of being an accessory
before the fact. The "practical framework" of our doctrine of
28
accomplice liability is "grounded in its 'essential elements' of
knowing participation and shared criminal intent." Marshall,
463 Mass. at 535, quoting Zanetti, 454 Mass. at 467. Although
the defendant is correct that "aid[ing]" is a different act from
"procuring" or "counselling," the jury would have found the
defendant to bear the same criminal liability if the defendant
undertook any of these actions. In its entirety, the judge's
instruction adequately conveyed that the defendant had to have
been a knowing participant in Feeney's crimes. There was no
error in the judge's decision not to adopt the requested
instruction, as "judges are not required to deliver their
instructions in any particular form of words" (citation
omitted). See Commonwealth v. Howard, 479 Mass. 52, 61 (2018).
ii. Instructions on elements of knowledge and intent. The
defendant also argues that the judge did not instruct adequately
on the elements of knowledge and intent in the offense of
accessory before the fact to kidnapping. The defendant
submitted requested instructions on these elements, but the
judge declined to use the specific requested language.
As an initial matter, while the defendant asserts that he
objected to the judge's instructions on these elements, the
transcripts do not support this contention. The instruction the
defendant proposed described knowledge and intent as one
element:
29
"Thirdly, the Commonwealth must prove that the defendant
had the same intent that the principal person is required
to have had to be found guilty. The defendant must not
only have had knowledge of what was being planned; he must
have intended to be part of it."
In raising the issue immediately prior to the jury charge,
defense counsel maintained that "a conviction as an accessory
before the fact requires not only . . . knowledge of the crime
and a shared intent to bring it about but also some sort of act
that constitutes it's happening and [a] non-present joint
venturer must intentionally encourage or assist in the
commission of a crime." In support, counsel pointed to
Commonwealth v. Reveron, 75 Mass. App. Ct. 354, 357 (2009). As
the defendant asserts, the instructions that the judge
ultimately provided used "different language" from what the
defendant had requested. Nonetheless, the proposed language was
substantially similar to the language the judge used. And,
importantly, the defendant's objection at trial did not concern
the adequacy of the judge's instructions on knowledge and
intent. Accordingly, we review for a substantial risk of a
miscarriage of justice. See Commonwealth v. Ortiz, 487 Mass.
602, 611 (2021). A substantial risk of a miscarriage of justice
exists if we have serious doubt whether the result of the trial
might have been different had the error not been made. Id. at
612, citing Commonwealth v. Azar, 435 Mass. 675, 687 (2002),
S.C., 444 Mass. 72 (2005).
30
The defendant asserts that there were several errors in the
instructions on knowledge and intent. First, the defendant
argues that the judge's instructions gave rise to a substantial
risk of a miscarriage of justice because the judge did not
provide explicit instructions on the element of knowledge, as
required by Zanetti, 454 Mass. at 464, 467.
The judge instructed on the element of knowledge as
follows:
"[T]o prove that [the defendant] is guilty of the crime of
accessory before the fact to kidnapping, the Commonwealth
must prove three things beyond a reasonable doubt. . . .
Third, that [the defendant] not only had knowledge of the
crime, but shared [Feeney's] intent to bring it about."
Shortly thereafter, the judge substantially repeated this
instruction when he explained, "Now, I said the third thing that
the Commonwealth must show is that [the defendant] not only had
knowledge of the crime but shared [Feeney's] intent to bring it
about." At that point, the judge did not give any further
explanation on the element of knowledge.
During deliberations, the jury asked the judge to clarify
the element of knowledge "in layman's language." After
conferring with counsel, the judge informed the jury:
"'Knowledge' and 'Intent' are two separate requirements.
Knowledge is an awareness or understanding of a fact or
circumstance. In this case, the Commonwealth is required
to prove beyond a reasonable doubt that [the defendant]
knew, at the time he provided assistance to Feeney, [if you
find that he did] that he had knowledge that Feeney
intended a kidnapping. The Commonwealth is not required to
31
prove that Feeney told [the defendant] what his intentions
were, but it is required to prove that [the defendant]
understood that Feeney intended a kidnapping. Knowledge
can be proven by direct evidence, or circumstantial
evidence. As with intent, you may, but are not required,
to determine the defendant's knowledge from his conduct,
including any statement or act committed or omitted, and
the reasonable inferences you may draw from them. You
should consider all of the surrounding facts and
circumstances, and weigh them in light of your common
knowledge and experience, in order to determine whether or
not to draw the inference that [the defendant] knew that
[Feeney] intended a kidnapping."
Although the judge's initial instruction on knowledge was
brief, it adequately conveyed the critical information. As
discussed, to support a finding of joint venture criminal
liability, a defendant must "knowingly participate[]" in the
underlying offense. See Marshall, 463 Mass. at 535, quoting
Zanetti, 454 Mass. at 468. The judge's initial instruction
adequately conveyed this concept by explaining that the
Commonwealth had to prove that the defendant "had knowledge of
the crime," thus amounting to "knowing participation."
Moreover, the judge thereafter clarified his initial instruction
by distinguishing the element of knowledge from intent and
defining knowledge as "an awareness or understanding of a fact
or circumstance." See Ortiz, 487 Mass. at 612 (we consider
instructions "as a whole in the context of the totality of the
evidence and interpret the instructions as would a reasonable
juror" [quotations and citations omitted]). Although the
defendant maintains that the judge should have provided more
32
detailed guidance or examples of participation, the judge was
not required to do so.6 And, as stated, there was no error in
the judge's decision not to use the precise language the
defendant suggested, as we do not require a judge to use any
particular language, even if so requested by a defendant.
Commonwealth v. Kelly, 470 Mass. 682, 697 (2015).
The defendant also argues that the judge improperly
referenced "trickery," with respect to kidnapping by trickery,
in describing the underlying crime that the jury were required
to find before the defendant could be convicted of being an
accessary before the fact to that offense. Because kidnapping
by trickery is a specific intent crime, and not a general intent
crime like kidnapping, the defendant contends that the
instruction likely confused the jury.
The judge first described the elements of kidnapping with
respect to the charges against Feeney. In order to convict the
defendant of being an accessory, he then explained, the jury
first would have to find that Feeney committed the underlying
offense of kidnapping. When instructing on the second element
6 The defendant asserts that the judge was required to
instruct that the Commonwealth had to prove that the defendant
knew there was a "substantial likelihood that [Feeney] would
[kidnap the victim]." See Kilburn, 426 Mass. at 34, citing
Commonwealth v. Walsh, 407 Mass. 740, 743 (1990). Such an
instruction would have been an incorrect statement of law and
would have reduced the Commonwealth's burden of proof from
knowing participation.
33
of kidnapping, i.e., that the Commonwealth was required to prove
that Feeney forcibly seized and confined the victim, the judge
explained, "Against the alleged victim's will means without the
alleged victim's consent. Consent must be voluntary. If an
alleged victim is tricked into submitting to a defendant by a
pretense of lawful authority[,] that is not consent." The
defendant did not object to the language the judge employed.
Rather, the defendant offered to stipulate that a kidnapping had
taken place and suggested that the judge omit the detailed
instruction concerning the elements of kidnapping that the
Commonwealth was required to prove.
The judge properly instructed the jury that the
Commonwealth had to show that the defendant "shared [Feeney's]
intent to bring [the kidnapping] about. The intent to commit
kidnapping is the intent to confine or imprison another person
against his will." The defendant repeatedly offered to concede
that a kidnapping had occurred, in his opening statement, his
motion for a required finding, and in the final charge
conference. The evidence that the victim had been kidnapped was
overwhelming; while the reference to trickery was not required,
the entirety of the charge accurately conveyed what the jury had
to find concerning the defendant's intent. To the extent that
the jury misinterpreted the type of intent they were required to
find for the crime with which the defendant had been charged,
34
the reference to kidnapping by trickery would not have created a
substantial risk of a miscarriage of justice, as the specific
intent of kidnapping by trickery requires a standard of intent
with a higher burden than the general intent to kidnap. See
Commonwealth v. Pfeiffer, 482 Mass. 110, 128-130, cert. denied,
140 S. Ct. 498 (2019) (jury instruction on specific intent was
error, but it skewed in favor of defendant).
The defendant also maintains that, in instructing on
contingent intent, the judge impermissibly reduced the
Commonwealth's burden to prove the element of intent beyond a
reasonable doubt. In his final charge, the judge told the jury
that the intent to commit kidnapping is the intent to confine or
imprison another person against the individual's will and that
this requirement is satisfied "even if the purpose to kidnap in
[the defendant's] mind was simply a conditional or contingent
one, a willingness to see the kidnapping take place should it
become necessary."
This instruction did not give rise to a substantial risk of
a miscarriage of justice. It was an accurate statement of law
and applicable to the case at hand. See, e.g., Commonwealth v.
Hanright, 466 Mass. 303, 312 (2013), quoting Richards, 363 Mass.
at 308 (in accessory before fact prosecution, "it would suffice
if the purpose [to the crime] . . . in the mind of the accessory
was a conditional or contingent one, a willingness to see [a
35
crime] take place should it become necessary"). See also
Commonwealth v. Brea, 488 Mass. 150, 167 (2021). Contingent
intent is not limited to situations where the underlying crime
identified in the indictment differs from the original criminal
plan, as the defendant suggests.
As stated, in reviewing a judge's instruction for error, we
review the final charge as a whole, in the context of the
totality of the instructions given, and interpret the
instructions as would a reasonable juror. See Ortiz, 487 Mass.
at 612; Conners v. Northeast Hosp. Corp., 439 Mass. 469, 481
(2003). Trial judges have considerable discretion in framing
jury instructions, both in determining the precise language to
be used and in the appropriate degree of elaboration. See
Ortiz, supra. "The adequacy of instructions must be determined
in light of their over-all impact on the jury." Id., quoting
Commonwealth v. Blanchett, 409 Mass. 99, 103 (1991). Given that
the instruction adequately conveyed to the jury the requisite
legal components of the three elements of the offense with which
the defendant was charged, we discern no error in the judge's
instructions.
c. Exclusion of defendant's statements. The defendant
argues that the judge abused his discretion in excluding certain
of the defendant's statements to Tobin and Mattaliano. The
defendant was interviewed by Tobin and Mattaliano on July 24,
36
2014, immediately prior to his grand jury testimony concerning
the victim's disappearance. The defendant was interviewed again
on August 6, 2014, after a warrant for his arrest had been
issued. Before both interviews, the defendant was read the
Miranda warnings and signed a Miranda waiver form.
During the August 6 conversation, the defendant told Tobin,
"If I knew they were gonna do somethin' like this, I, I wouldn't
have done all that, obviously." Mattaliano then asked, "Well,
what did you think was gonna happen when you gave [the police
equipment] to [Feeney]?" to which the defendant answered:
"I, I don't know, if this guy's gonna play a joke on his
buddy or what, what, how he got it out of me, you know. I,
I didn't think [Feeney] was gonna kidnap a guy. I really
didn't. . . . I swear to God I had no idea he was gonna
kidnap, no idea."
Later, Mattaliano again asked the defendant, "[W]hat did you
think [Feeney] was using everything for?" The defendant
responded, "I don't know. . . . I thought he was playin' a joke
on a friend of his or something like that."7
The Commonwealth filed a motion in limine to exclude the
entirety of the defendant's August 6 interview as hearsay. At a
hearing on the motion, the discussion focused on whether the
August 6 statements were admissible under the doctrine of verbal
7 The record contains no audio or video recording of either
the July 24 interview or the August 6 interview. See
Commonwealth v. DiGiambattista, 442 Mass. 423, 425 (2004).
37
completeness. See Mass. G. Evid. § 106 (2022). Citing Mass. G.
Evid. § 106, the judge allowed the motion. At trial, Tobin
testified that, in the July 24 interview, he asked the defendant
what he believed Feeney was going to do with the items and the
defendant responded that he "didn't want to know." The
defendant impeached Tobin with his police report memorializing
the interview, which did not indicate that the defendant had
made such a statement. The defendant also attempted to impeach
Tobin with the August 6 statements; the defendant argued that,
through his testimony, Tobin had opened the door to their
admission. The judge did not agree that Tobin's testimony had
opened the door and again ruled that the statements were
inadmissible.
On appeal, the defendant maintains that the statements
should have been admitted. He contends that the statements were
not hearsay but, rather, were probative of the defendant's state
of mind and intent. Alternatively, the defendant argues that
the statements should have been admissible under the doctrine of
verbal completeness. The defendant also argues that the judge
should have permitted introduction of the statements in order
for the defendant to impeach Tobin once Tobin opened the door to
the topic of the defendant's knowledge of the use Feeney would
make of the items.
38
We conclude that there was no abuse of discretion in the
decision to exclude these statements. See Commonwealth v.
Andre, 484 Mass. 403, 414 (2020). "[A] defendant's statement,
when offered by the defendant to prove the truth of the
statement's contents, is inadmissible hearsay." Commonwealth v.
Eugene, 438 Mass. 343, 350 (2003). An out-of-court statement
may be admissible as nonhearsay if it is relevant to show the
speaker's state of mind in a manner separate and apart from the
truth of the statement. See Commonwealth v. Siny Van Tran, 460
Mass. 535, 550-551 (2011); Mass. G. Evid. § 801 note. However,
"[w]here the declarant asserts his or her own state of mind
(usually by words describing the state of mind), the statement
is hearsay and is admissible only if it falls within the [then-
existing state of mind] hearsay exception." Commonwealth v. Yat
Fung Ng, 491 Mass. 247, 259 (2023), quoting Mass. G. Evid. § 801
note, Evidence Admitted for Nonhearsay Purpose.
Here, the defendant's August 6 statements were not
admissible as nonhearsay state of mind. Those statements
directly described the defendant's state of mind, i.e., that at
the time the defendant provided the items to Feeney, he did not
know for what purpose Feeney would use them. As such, the
statements were hearsay. See Yat Fung Ng, 491 Mass. at 259.
Nor did the August 6 statements qualify under the state of
mind exception to the hearsay rule. Statements "purporting to
39
explain past conduct" are not admissible under this exception.
See id. at 260, quoting Commonwealth v. Bianchi, 435 Mass. 316,
327 (2001); Mass. G. Evid. § 803(3)(B)(ii). The August 6
statements sought to explain the defendant's prior actions,
i.e., why he gave the items to Feeney. "Statements of memory or
belief to prove the fact remembered or believed do not fall
within this exception." Mass. G. Evid. § 803(3)(B)(ii). As
such, the August 6 statements were properly excluded here.
Nor were the statements admissible under the doctrine of
verbal completeness. Under that doctrine, 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." Commonwealth v. Amaral, 482 Mass. 496, 503-504
(2019), quoting Commonwealth v. Crayton, 470 Mass. 228, 246
(2014). For a statement to be admissible under this doctrine,
an adverse party must show that the additional statements
concern the same subject as the admitted statement, are part of
the same conversation, and are necessary to the understanding of
the admitted statement. Amaral, supra at 504, quoting Crayton,
supra at 247. To be admissible, "[t]he proffered statement must
meet each component of the doctrine of verbal completeness."
Amaral, supra.40
The defendant's August 6 statements were not part of the
"same conversation" as those on July 24. The two conversations
were "temporally separate." See Commonwealth v. Steeves, 490
Mass. 270, 278 (2022) (statements approximately two hours apart
were sufficiently distinct so as not to form part of same
conversation). The August 6 conversation took place after a
warrant had been issued for the defendant's arrest. This change
of circumstances further bifurcated the August interview from
the one in July. When speaking to Tobin and Mattaliano on
August 6, the defendant thought that he "already [had]" spoken
to them and wanted to know if there were additional subjects to
discuss.8 Because the proffered statement was not part of the
same conversation as the admitted statement, the judge did not
abuse his discretion by ordering it excluded.
Finally, the judge did not abuse his discretion in
concluding that Tobin's testimony at trial did not open the door
to the admission of the defendant's August 6 statements. An
out-of-court statement introduced to impeach a witness, and not
to prove the truth of the matter asserted, is not hearsay. See
8 The cases that the defendant cites in support of the
admissibility of the statement on the doctrine of verbal
completeness are inapposite. See Commonwealth v. Condon, 99
Mass. App. Ct. 27, 36 (2020) (considering text messages sent
throughout one day); Commonwealth v. Gilman, 89 Mass. App. Ct.
752, 759-760 & n.9 (2016) (defendant did not claim that admitted
social media messages were so misleading as to implicate
doctrine of verbal completeness).
41
Commonwealth v. Denson, 489 Mass. 138, 149 (2022), citing
Commonwealth v. Niemic, 483 Mass. 571, 581 (2019). A trial
judge has discretion to determine the scope of cross-
examination, including the value, if any, of prior inconsistent
statements offered to impeach a witness. See Commonwealth v.
Caruso, 476 Mass. 275, 296 (2017). Where impeachment evidence
is cumulative, courts generally reject the argument that the
evidence is material, so long as the defendant had adequate
opportunity to impeach the witness by other means. See
Commonwealth v. Holbrook, 482 Mass. 596, 610-611 (2019), citing
Commonwealth v. Fuller, 394 Mass. 251, 264 (1985), S.C., 419
Mass. 1002 (1994).
Tobin testified that, on July 24, the defendant told him
that the defendant "didn't want to know what" Feeney's purposes
were in requesting the loan of the police equipment. The
defendant impeached this testimony by questioning Tobin about
his written report, which did not contain the defendant's
statement that he "didn't want to know." Evidence of the
defendant's later, contradictory statement on August 6 thus
would not have impeached Tobin's earlier testimony. There was
no abuse of discretion in the judge's determination that the
August 6 statements were not pertinent for impeachment purposes
and that the defendant instead was attempting to introduce them
for the impermissible purpose of their purported truth.
42
3. Conclusion. We affirm the defendant's conviction and
the order denying his motion for postconviction relief.
So ordered.