Commonwealth v. Tavares
81 Mass. App. Ct. 71
Mass. App. Ct.2011Background
- Defendant convicted of firearm‑related offenses; appeal challenges DiGiambattista instruction, closing interruption, and testimony admission.
- Police conducted a raid on defendant’s Hyde Park apartment; found a .22 pistol and a nearby nine millimeter.
- Defendant admitted ownership of the .22 pistol during custodial interrogation conducted after waiver of Miranda rights.
- Interrogation was not recorded; two officers testified defendant declined recording.
- Defendant argued for a DiGiambattista instruction; judge declined citing alleged recording refusal.
- Jury later asked about verification of ownership of the nine millimeter; judge allowed some testimony but not hearsay about Robinson’s statements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| DiGiambattista instruction required? | Commonwealth | Defendant | Error: instruction required |
| Prejudice from missing instruction | Commonwealth | Defendant | Prejudicial error established |
| Impact of closing interruption and testimony admission | Commonwealth | Defendant | Not addressed on retrial; potential recurrence avoided |
Key Cases Cited
- Commonwealth v. DiGiambattista, 442 Mass. 423 (Mass. 2004) (mandatory cautionary instruction when no recording)
- Commonwealth v. Barbosa, 457 Mass. 773 (Mass. 2010) (recording preferred; weighing of evidence with caution)
- Commonwealth v. Drummond, 76 Mass. App. Ct. 625 (Mass. App. Ct. 2010) (instruction error where related to recording issue)
- Commonwealth v. McLaughlin, 79 Mass. App. Ct. 670 (Mass. App. Ct. 2011) (reversal for potential prejudice when missing recording)
- Commonwealth v. Graham, 431 Mass. 282 (Mass. 2000) (standard for evaluating prejudice in evidence)
- Commonwealth v. Robinson, 78 Mass. App. Ct. 714 (Mass. App. Ct. 2011) (recorded interviews safeguard evidentiary accuracy)