We affirm the defendant's convictions and the order denying his motion for a new trial. Further, after a review of the entire record, we decline to reduce the verdict of murder in the first degree to a lesser degree of guilt or to set aside the defendant's convictions under G. L. c. 278, § 33E.
Factual background. We summarize the facts as the jury could have found them, reserving certain details for discussion of specific issues.
On the afternoon of March 13, 2013, the victim was found dead in her living room with her throat cut. Her two young children were found unharmed in their bedroom. A flat screen television was missing from her home.
Based on telephone records, investigators learned that several calls were made between the victim's and the defendant's cellular
After confirming that David had an alibi, investigators spoke again to the defendant, and learned that the defendant sold the victim's television to an individual named Jason McCarthy. McCarthy testified that when the defendant arrived at his home with the television, the defendant's sweatshirt was stained red. When McCarthy asked the defendant what happened, he replied, "I just murdered somebody .... No. I was painting." When police confiscated the television, it was smeared with red-brown stains that tested positive for the presence of blood.
The defendant and Garcia subsequently were arrested and charged with misleading the police. When Garcia learned that the television was stained with blood, he admitted to police that he had lied about having been with the defendant in the victim's apartment. Rather, Garcia said that the defendant had telephoned Garcia from the victim's home at approximately 2 or 3 A.M. to ask for a ride so that the defendant could bring the television to McCarthy.
As part of the investigation, the defendant and Garcia's hands were swabbed; the defendant's hands tested positive for the presence of blood. Investigators recovered a bloody T-shirt found in a trash can in McCarthy's yard, and a bloody sweatshirt and bloodstained shoes from a second location based on a lead from Garcia. Deoxyribonucleic acid (DNA) testing of the blood stains on the clothing and shoes did not exclude the victim as the source. Tests on samples containing DNA from more than one person also did not exclude the defendant and the victim, although they did exclude Garcia, David, and McCarthy, among others. Further, the soles of the shoes were consistent with footprint impressions found in blood in the victim's apartment.
Discussion. 1. Statements made to investigators. The defendant claims that the motion judge erred by declining to suppress the videotaped statements he made to investigators because he was not provided with a recitation of the Miranda warnings prior to questioning and because his statements were made involuntarily. " 'When reviewing the denial of a motion to suppress, we accept the [motion] judge's findings of fact ... absent clear error,' but we independently determine 'the correctness of the judge's application of constitutional principles to the facts as found.' " Commonwealth v. Molina,
We summarize the detailed findings of fact made by the motion judge. The defendant and Garcia voluntarily appeared at the police station with Garcia at approximately 4 P.M. on March 14, 2013, to be interviewed. The two were escorted to separate interview rooms, but they could converse freely prior to the start of the interviews. The defendant also placed telephone calls before the interview began, and he telephoned his mother during a break in the questioning to make dinner plans. The defendant told investigators at the start of the interview that he had to "get straight" prior to speaking with police, which was
The tone of the interview was "cordial, polite, nonaggressive, and heavily influenced and controlled by the defendant." The defendant, a college graduate, had had previous experience with police prior to the interview and had waived his Miranda rights before speaking to police. Early on, investigators informed the
The defendant never was told that he was in custody or that he could not leave the station. Although one of the officers conducted a quick pat-down of the defendant at one point, that officer did so only when the officers observed the defendant scratching himself, which the defendant explained as a manifestation of his heroin addiction. During two breaks, the defendant was escorted to the bathroom and outside to have a cigarette.
After one break, the investigators told the defendant that Garcia had given them more information than the defendant had provided and suggested that he was not telling them the complete truth. It was then that the defendant indicated that David was the last person to see the victim alive. The defendant further offered to "set up a drug deal" so that investigators could investigate David. The investigators agreed and the defendant left the station to complete the controlled drug purchase with David.
After the controlled drug purchase, the defendant accompanied police back to the station and again was seated in the meeting room, but he was not told that he could not leave the station. Shortly after 9 P.M. , police held a second interview with the defendant, in which he told them that the first television had been sold to Jason McCarthy. The second interview lasted for a few minutes. Police confirmed David's alibi for the night of the murder. They also learned from McCarthy that the first television had blood on it and that McCarthy had seen the defendant with blood on him when he delivered it. After police received this information, a third interview with the defendant was conducted. At the start of that interview, the defendant invoked his right to counsel, and he was arrested.
a. Miranda warnings. Miranda warnings are required only when a suspect is subject to custodial interrogation. Commonwealth v. Jung,
An interview is custodial where "a reasonable person in the suspect's shoes would experience the environment in which the
"(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that the person is a suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the person being interviewed; and (4) whether, at the time the incriminating statement was made, the person was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with an arrest."
Commonwealth v. Groome,
i. The location of the interview. The defendant was interviewed at the police station, a location that may be considered coercive; however, he arrived of his own volition. See Commonwealth v. Sparks,
ii. Whether the police conveyed a belief that the defendant was a suspect. Investigators indicated to the defendant that he was a witness, rather than a suspect, until the third interview, at which point the defendant invoked his right to counsel and questioning stopped. Even after speaking with Garcia and confronting the defendant about his not being completely forthcoming, investigators did not tell the defendant that there was any incriminating evidence against him, or that he was under suspicion. The officers only communicated that they wanted to know more about the events leading up to the victim's death. See Commonwealth v. Morse,
iii. The nature of the interview. The interview was conducted in a calm and cordial manner, and the defendant heavily influenced
iv. Freedom to leave. Until the point at which he was arrested, the defendant never was told he was in custody, and in fact he made dinner plans during a telephone conversation with his mother. Further, he
Considering the above factors in total, we agree with the motion judge that the defendant was not in custody during the questioning, and thus providing the defendant with Miranda warnings before he was interviewed was not mandated.
b. Voluntariness. The right to due process under the Fifth and Fourteenth Amendments to the United States Constitution requires that admissions be voluntarily made, without coercion, to be admissible. Commonwealth v. Magee,
In considering whether a statement was made voluntarily, relevant factors include "conduct of the defendant, the defendant's age, education, intelligence, and emotional stability, experience with and in the criminal justice system, [and] physical and mental condition" (citation omitted). Commonwealth v. Tremblay,
The defendant demonstrated his understanding by providing information to exculpate himself and inculpate another. See Commonwealth v. McCowen,
Because the defendant's statements to the investigators were not made in violation of any of his constitutional rights, we do not find that the motion judge erred in declining to suppress them.
2. Exclusion of hearsay evidence. At trial, the defendant's mother testified that, on the night of the killing, the defendant telephoned her to ask if she would buy a television. On cross-examination, defense counsel elicited further testimony about this conversation. The defendant's mother stated, "He wanted to know if I wanted to buy [the television], and I said 'Jeremy, I told you not to call me about anything, especially if it's stolen.' " She continued, "[I]n the background somebody's --," at which point the Commonwealth objected on hearsay grounds.
On appeal, the defendant reiterates that the hearsay statement from an unidentified third party should have been admitted, and that its exclusion constituted prejudicial error. We disagree.
Under the doctrine of verbal completeness, when a party introduces a portion of a statement, "a judge has discretion to allow
The proffered statement must meet each component of the doctrine of verbal completeness to be admissible. Crayton,
Concerning the second inquiry, here, it was unclear whether the proffered statement was part of the same conversation as that between the defendant and his mother. The defendant did not make an offer of proof as to any other details about the telephone call -- such as the identity of the third party -- and there was no indication that either the defendant or his mother ever addressed the third party. See Mass. G. Evid. § 103(a)(2) (2018).
Finally, concerning the inquiry whether the proffered statement was necessary to the full understanding of the admitted statements, Crayton,
In Crayton,
However, here, the denial of wrongdoing was made by an unidentified third party. See ibr.US_Case_Law.Schema.Case_Body:v1">id
Moreover, without any evidence as to the identity of the third party declarant, the proffered statement is especially vulnerable to the foundational problems associated with hearsay -- that is, questionable reliability and the speaker's unavailability for cross-examination. See Commonwealth v. DelValle,
Thus, because the defendant was unable to demonstrate either that the proffered statement was part of the same conversation as the admitted statement or that it was necessary to the understanding of the admitted statement, the judge did not abuse his discretion by excluding it. See Commonwealth v. Morin,
3. Jury instructions. The defendant contends that the judge erred by declining to give a humane practice instruction sua sponte, and by declining to provide the jury with complete instructions on joint venture.
a. Humane practice instruction. Where the voluntariness of a defendant's admission is in question, under the humane practice rule, the judge will instruct the jury that the prosecution must prove that the defendant's statements were voluntary beyond a reasonable doubt. See Commonwealth v. Gallett,
Here, prior to trial, the defendant moved to suppress the statements he made to police partially based on grounds of voluntariness: he claimed to have been under
A humane practice instruction is required when the voluntariness of a confession or admission is a live issue at trial, even in the absence of a request from defense counsel. Commonwealth v. Kolenovic,
There was no indication that voluntariness was part of his defense at trial. Trial counsel did not present voluntariness as an issue in his opening statement, did not ask the defendant about the voluntariness of his statements during the defendant's direct examination, and did not raise the question of voluntariness during the closing argument. See Alicea,
As the defendant did not make the voluntariness of his statement to police a live issue at trial, and, in fact, indicated that it was not a live issue, the judge did not err by declining to give a humane practice instruction sua sponte. See Commonwealth v. Nieves,
b. Joint venture instruction. At trial, defense counsel included a joint venture instruction in a written request for jury instructions. However, at the charge conference, he did not ask for the instruction. The defendant now claims that he was entitled to such an instruction. This argument lacks merit.
First, there was no evidence presented at trial of a joint venture. See Commonwealth v. Zanetti,
Second, the concerns that the defendant raises on appeal were actually addressed by the instructions that the judge gave. The defendant argues that although the judge instructed that mere presence and knowledge of the crime are not enough to convict, the instruction did not go far enough because it did not inform the jury that in order to demonstrate a joint venture, the Commonwealth had to prove beyond a reasonable doubt that the defendant knowingly participated in committing the crime with the requisite intent, and that mere association before and after the crime or a failure to prevent the crime is not sufficient to prove joint venture.
Finally, a joint venture instruction would not have benefited the defendant; to the contrary, it would have provided the jury with an alternative basis on which to convict him. See Commonwealth v. Soares,
A judge may decide a motion for a new trial without holding an evidentiary hearing if "no substantial issue is raised by the motion or affidavits." See Mass. R. Crim. P. 30 (c) (3), as appearing in
Here, the defendant alleged that the Commonwealth withheld exculpatory evidence by failing to disclose a taped interview of the victim's son (the child), conducted within days of the killing. The child, who was four years old at the time of his mother's death, was in a bedroom when the victim was killed.
In his affidavit that accompanied the motion, the defendant claimed that had he had this information, he might have altered his trial strategy. In particular, the defendant claimed that he might not have testified in his own defense and that he might have called the child as a witness instead.
In denying the defendant's motion, the motion judge ruled that no evidentiary hearing was necessary because the defendant's motion and supporting materials did not raise a substantial issue. See Denis,
The motion judge first noted potential issues with the competence of the child witness. Although a child is not per se incompetent by reason of age, a judge who reviews a recorded interview of the child would be "well aware of the age and corresponding limitations of the child." Commonwealth v. Patton,
Moreover, at trial, the child's testimony would have been pitted against that of Garcia and McCarthy, among others, and the forensic evidence of the defendant's guilt. In Commonwealth v. Lykus,
5. Review under G. L. c. 278, § 33E. The defendant additionally asks us to exercise our extraordinary power to grant relief under G. L. c. 278, § 33E, based on any one of a number of factors. Two such factors, alleged faulty jury instructions and the alleged failure to turn over the child's statement, have been addressed supra. We here address the remaining issues raised by the defendant under § 33E.
Second, the defendant points to a statement made by trial counsel during closing argument in which counsel conceded that the jury could convict the defendant of murder as long as they "buy one hundred percent the testimony of Michael Garcia ... [and] of Jason McCarthy." The defendant does not identify, nor can we discern, any impropriety or ineffectiveness in trial counsel's statement. Furthermore, the statement is taken out of context. Before counsel made the statement the defendant complains of, he spent considerable time explaining why Garcia and McCarthy were not credible witnesses.
Third, the defendant takes issue with trial counsel's admittedly tactical decision not to challenge the forensic evidence, and
We have considered the defendant's other arguments regarding the weight of the evidence and conclude that they are similarly without merit. Further, we have reviewed the entire record in accordance with our duties under G. L. c. 278, § 33E, and we conclude that the interests of justice do not require a new trial or a reduction of the verdict of murder in the first degree.
Judgments affirmed.
Notes
The defendant also was convicted of misleading a police officer.
The defendant's argument that the motion judge impermissibly relied on the defendant's subjective intent and motivation misses the mark. A motion judge is not forbidden from taking subjective facts into account, especially to the extent that those facts influenced the objective conditions of an interrogation. See, e.g., Commonwealth v. Groome,
Because trial counsel did not request a humane practice instruction (in fact, he specifically declined one), any error would be reviewed for a substantial likelihood of a miscarriage of justice. Commonwealth v. Dykens,
The instruction with which the defendant finds fault was as follows:
"Before I launch into the various elements of murder, let me state something quite clearly. Mere presence at a crime scene is never enough to convict someone. Presence at a crime scene and knowledge of the crime is not enough to convict. To convict, you have to satisfy the elements of the particular offense that you are considering."
The child, who was seven years old at the time of the defendant's trial, did not testify.
Neither the defendant nor his trial counsel allege that they specifically requested the evidence at issue here, which would have required that we apply a standard more favorable to the defendant. See Commonwealth v. Ferreira,
The defendant further argues that, in evaluating prejudice, the motion judge erroneously considered the effect of his testimony at the trial (in which the defendant accused Garcia of the killing) on any subsequent trial. Where there is a claim that exculpatory evidence was withheld or counsel was ineffective, prejudice analysis looks to what would have occurred but for the error -- not what might occur at a prospective new trial. See generally Commonwealth v. Epps,
The defendant does not present this argument as a basis for ineffective assistance of counsel. Nonetheless, we conclude that counsel was not ineffective here for not seeking individual voir dire of prospective jurors regarding their ability to be impartial in light of the victim's disability. Commonwealth v. Companonio,
We note that a member of the venire and, later, a member of the deliberating jury, both of whom worked with disabled individuals, were excused. With regard to the latter, the issue was flagged during deliberations when the juror raised with the court the possibility that she had met the victim a few years prior. During a colloquy with the juror, defense counsel noted that the juror worked at a rehabilitation center and requested that the judge inquire whether the juror's place of employment would affect her ability to be fair. The juror indicated that her occupation would not affect her views on the case. She also told the parties and the judge that she had not said anything to the other jurors about the possibility that she knew the victim. Although the judge concluded after the colloquy that there was no reason to discharge the juror, in an abundance of caution, the judge excused her at the defendant's request. See G. L. c. 234A, § 39 ("The court shall have the discretionary authority to dismiss a juror at any time in the best interests of justice"). At the time he did so, there was no indication that the deliberations were at an impasse or were otherwise contentious.