Commonwealth v. BatemanCommonwealth v. Bateman
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Homicide. Constitutional Law, Conduct of government agents. Evidence, Disclosure
Indictments found and returned in the Superior Court Department on July 8, 2005.
The cases were tried before John A. Agostini, J., and a motion for a new trial, filed on August 31, 2018, was heard by him.
Amy Codagnone for the defendant.
Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.
GEORGES, J. In the early evening on April 16, 2005, Brandy Waryasz, who was seven months pregnant, was killed during a robbery at her place of employment, a gasoline station in Deerfield. Her viable, unborn son, who would have been named Dane Anthony Hall, also was killed. Two years later, following a jury trial, the defendant, Dennis M. Bateman, was convicted of murder in the first degree for the killing of Waryasz, on theories of premeditation and felony-murder; murder in the first degree for the killing of Hall, on a theory of felony-murder; and armed robbery. Now before us is the defendant‘s consolidated appeal from his convictions and from the subsequent denial of his motion for a new trial.
On appeal, the defendant claims an extensive list of errors in connection with the trial and other proceedings below. We affirm, except as to the armed robbery conviction, which, as the Commonwealth concedes, must be dismissed as it is duplicative of the
Background. 1. Facts. We summarize the facts the jury could have found,1 while reserving certain facts for discussion of the relevant issues.
On Saturday, April 16, 2005, twenty-one year old Brandy Waryasz, who was thirty to thirty-two weeks pregnant, was working a shift from 2 P.M. to 9 P.M. as the sole attendant at a gasoline station located in Deerfield. The station had two islands for pumping gasoline, one self-serve and one full-serve, as well as a building housing two vehicle service bays and an adjoining retail office. In the retail office, there was a customer service counter on which sat a cash register and a machine for processing credit card payments.
At approximately 3 P.M., the defendant, a forty year old African-American man with a history of “crack” cocaine use, was at his home in neighboring Greenfield. He was short on money, but his wife had gone away for the weekend and, in his own words, he was looking to “party.” With that in mind, he set off in his distinctive 1988 Ford Econoline van. The van originally had been white, but the defendant had painted it using cans of black spray paint that he had purchased from the “paint guy” at a Greenfield automobile parts store. As a result, the van had a faded, dark black or blue primer-like look to it. The van‘s engine leaked oil, such that it would leave stains behind when it stopped and made a loud knocking sound that became more pronounced as the van accelerated. The van also had been equipped with an extended rooftop, as though it had been converted for camping or for transporting a wheelchair user.
A little after 3 P.M., the defendant stopped at a Greenfield gasoline station and convinced the attendant to give him ten
The defendant had been to the Deerfield gasoline station before and, as he later revealed, was aware that it was not equipped with video surveillance cameras.3 He also was familiar with Waryasz. When he arrived, the defendant parked his van in front of the station building, not at the fuel pumps. While it is unclear exactly when he arrived and whether he had left at one point and returned,4 several customers, whose presence was confirmed by credit card receipts processed between 6 P.M. and 6:24 P.M., observed his “loud,” “dark,” “dull-colored” van with the “bad paint job” at the station. As a security officer from a nearby school drove by on his rounds at 6:15 P.M. or 6:20 P.M., he also observed the “black,” “not shiny” van with the “raised roof,” like “what a camper or handicapped van might have,” parked in front of the station building.
While at the station, the defendant raised the hood on his van, filled the oil in the engine, and secured a container of water from Waryasz, claiming that he might need it for his radiator.5 One customer, while fueling his vehicle at the self- serve island, also
By chance, the “paint guy” from the Greenfield automobile parts store, who well remembered selling the defendant the cans of black spray paint for his van, drove by the station minutes later, at approximately 6:30 P.M. As he drove by, he recognized the defendant‘s “Ford Econoline conversion van” because of “the spray can paint job on it.” It was still parked in front of the station building. He also saw Waryasz standing in the door to the retail office, facing the defendant who was standing outside in front of his van. There were no other vehicles at the station.
Over the next several minutes, during a lull in customers, the defendant attacked Waryasz, tightly wrapping a ligature -- a black nylon-like belt or strap -- around her neck and tying it in a knot in the rear. He then left her lying in one of the station service bays, grabbed the cash register off the counter, put it in his van, and drove away. Fresh oil stains were found on the pavement where his van had been parked.
At approximately 6:42 P.M., another self-serve customer entered the retail office to pay for his gasoline. Finding no one, he looked into the adjoining service bays and observed Waryasz‘s body on the ground. He immediately called police, who responded along with emergency medical personnel. However, it already was too late to save Waryasz. The ligature had choked off Waryasz‘s airflow, rendering her unconscious within seconds and stopping her heart within minutes. In turn, her viable unborn son was deprived of oxygen and died within minutes of his mother.
The cash register and the $350 that had been in it were never recovered. The defendant, meanwhile, had driven back to Greenfield, stashed his van in a parking lot behind a downtown building,
In the days that followed, the defendant approached additional individuals and pressed them to confirm that he was in Greenfield at or about the time of the murders. All those whom he approached, however, had seen him on April 16 before or after the time of the murders.6 He also proceeded to tell multiple people that he had been at the gasoline station on April 16 and that his fingerprints likely would be found on Waryasz‘s pocketbook; he claimed he had asked her for change and she allowed him to go into her pocketbook to get it, while she went outside to wait on a full-serve customer.7
Two days later, during an interview of the defendant by police in connection with their investigation of the April 16 station incident, the defendant told the interviewing officers that, while he was at the station, he and Waryasz engaged in “horse play” with a belt or strap that she pulled out from under the counter: “She was flinging the thing at me and I was grabbing it and pushing it back and stuff like that.” Police, however, had yet to publicly disclose that Waryasz had been strangled.8 Unwittingly, the defendant had revealed that he had knowledge about the details of the crime, and the murder weapon (i.e., the ligature) in particular, that only the perpetrator would have, and also that he was concerned about fingerprint or other forensic testing that ultimately might link him to the same.
The defendant also was a potential contributor to a mixture of DNA recovered from clippings of Waryasz‘s fingernails. The probability of a randomly selected, unrelated individual having contributed DNA to the mixture was approximately one in 207,000 of the African-American population. Along with fresh abrasions found on Waryasz‘s elbow and knee, the DNA on her fingernails suggested that Waryasz had attempted to fend off the defendant‘s attack.
2. Procedural history. On July 8, 2005, the defendant was indicted for the murders of Waryasz and her unborn child, Hall, as well as for armed robbery. On May 25, 2007, after a twelve-day jury trial, he was convicted on all charges. The defendant timely appealed. Eleven years later, on August 31, 2018, he filed a motion for a new trial, in which he made many of the same arguments raised here on appeal. The motion was remanded to the Superior Court. On August 30, 2019, after an evidentiary hearing, the same judge who presided at the trial denied the motion in a written decision that included detailed findings of fact. The defendant appealed from the decision, and that appeal was consolidated here with the direct appeal from his convictions.9
Discussion. 1. Standard of review. Where, as here, we consider the “defendant‘s direct appeal from a conviction of murder in the first degree together with an appeal from the denial of a motion for a new trial, we review the whole case under
2. Statements to jailhouse witnesses. Before he was indicted, the defendant was being held in the Franklin County house of correction after an arrest on other charges. While there, he made incriminating statements relative to the murders to two fellow detainees, Anthony Bogacz and Debric Sweeney, both of whom subsequently testified at the murder trial pursuant to cooperation agreements. Prior to trial, the defendant moved for voir dires of these two witnesses and to exclude their testimony on grounds that they were acting as agents of the government when the statements were made and, thus, violated his right to counsel. The trial judge denied the motion. In his subsequent motion for a new trial, the defendant again raised and expanded on the claim, but the trial judge again denied the motion following an evidentiary hearing. The defendant claims the judge erred on both occasions. We disagree.
We review the relevant background. At the evidentiary hearing, which was limited to the issue whether Bogacz was a government agent, the defendant called, among others, the lead trial prosecutor and two State police investigators, Detective Lieutenant John Gibbons and Sergeant Danial Wildgrube, both of whom had testified at trial. Based on his assessment of their testimony and credibility, as well as on his assessment of the evidence and credibility of the relevant witnesses from the trial, the trial judge made certain findings. See Commonwealth v. Grace, 370 Mass. 746, 752-753 (1976) (trial judge entitled to rely on knowledge and evaluation of evidence from trial in deciding motion for new trial). We accept those findings where they are supported by substantial evidence and defer to the judge‘s assessment of the credibility of witnesses. See Commonwealth v. Tate, 490 Mass. 501, 505 (2022). We pay special deference to the judge‘s findings in this case because he also presided over the trial. See Commonwealth v. Chatman, 466 Mass. 327, 334 (2013), S.C., 473 Mass. 840 (2016).10
On April 20, 2005, Bogacz and Sweeney were arrested as part of a large law enforcement operation targeting drug dealers and users in Greenfield, and thereafter were detained at the house of correction. A week later, on April 27, 2005, Gibbons and Wildgrube went to visit with Bogacz, having learned from sources that he had supplied drugs to the defendant. During the interview, Bogacz confirmed that, in fact, he had sold the defendant crack cocaine on five successive days, including a $150 sale on April 16, hours after the murders.11 No promises, rewards, or inducements were provided to Bogacz during the interview.
On May 3, 2005, six days after the officers’ visit to Bogacz, the defendant was arrested on charges of larceny under $250,
A day or two later, the defendant saw Bogacz walking by his cell and called out. Bogacz, who had been unaware of the defendant‘s arrival, went over, and the two proceeded to engage in conversation, during which the defendant pressed Bogacz to act as an alibi witness and tell police that he had seen the defendant between 4 P.M. and 6 P.M. on the day of the murders. The following day, they talked again at the defendant‘s cell. The defendant was emotional and said that “he was fucked, and if [Bogacz] did[ not] help him out he was going to spend the rest of his life in jail.” He told Bogacz that he knew Waryasz and had gone to the station with the intention of convincing her to play
On May 5, 2005, Bogacz placed a telephone call to Gibbons from the house of correction to report that the defendant had asked him to provide an alibi and to request a transfer out of the house of correction, away from the defendant; however, Gibbons was not available. The next day, May 6, Bogacz managed to reach Gibbons by telephone, told him that the defendant now had confessed to the murders, and again requested a transfer. Gibbons told Bogacz he would come down to talk to him. When Gibbons and Wildgrube arrived at the house of correction later the same day, they informed Bogacz that they could not offer him any promises, rewards, or inducements. As a result, Bogacz refused to talk to the officers without his lawyer. Concerned for his own safety, he also continued to request a transfer, away from the defendant.
On June 28, 2005, Bogacz, now accompanied by his lawyer and having been transferred out of the house of correction, met with Gibbons and Wildgrube and provided them with the details of what the defendant had told him. No promises, rewards, or inducements were provided to Bogacz at that time; however, approximately two years later, on April 27, 2007, Bogacz and the Commonwealth did enter into a cooperation agreement. In return for Bogacz‘s testimony at the defendant‘s trial, the Commonwealth agreed to take his cooperation into consideration in resolving criminal matters pending against him, not to proceed against him on a pending indictment for being a habitual offender, and not to use against him any statements he made at the trial regarding selling crack cocaine to the defendant in the hours after the murders. Pursuant to the agreement, Bogacz testified at the trial regarding that drug transaction and the statements made by the defendant in the house of correction.
As for Sweeney, he had no contact with authorities regarding the defendant until June 1, 2005. At that time, Sweeney disclosed to Gibbons and another State police officer details of interactions he had had with the defendant several weeks earlier, shortly after the defendant‘s arrival at the house of correction. Sweeney knew the defendant, having sold him crack cocaine two days before the
Following the June 1 interview, Sweeney had no further contact with authorities regarding the defendant and the murders until May 2007, when he received a summons to appear and to testify at the defendant‘s trial. On May 17, 2007, Sweeney entered into a cooperation agreement, whereby he agreed to testify at the defendant‘s trial in return for the Commonwealth‘s agreement to take into consideration his cooperation in resolving criminal matters pending against him, and not to use against him any statements he might make at the trial regarding his sale of crack cocaine to the defendant. At the trial, Sweeney testified about that drug sale, as well as about the statements and threat made by the defendant in the house of correction.
a. Agents of the government. The defendant first argues that the statements he made while in the house of correction should have been suppressed because Bogacz and Sweeney were acting as government agents at the time and, thus, violated his right to counsel under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights, as well as his invocation of his right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436, 475 (1966). When a right to counsel attaches or is invoked, as the case may be, “government agents may not ‘deliberately’ elicit statements from a defendant outside the presence of counsel.” Commonwealth v. Foxworth, 473 Mass. 149, 157 (2015), citing Massiah v. United States, 377 U.S. 201, 206 (1964). “This rule applies not only to overt interrogation by government officers, but also to ‘indirect and surreptitious’ interrogation by persons acting as government agents.” Foxworth, supra, citing Commonwealth v. Harmon, 410 Mass. 425, 428 (1991). “Whether someone is an agent of the government . . . depends on the circumstances of each case.” Foxworth, supra. While we accept the trial judge‘s findings of fact absent clear error, we independently apply constitutional principles to determine whether Bogacz and Sweeney were government agents. See Commonwealth v. Caruso, 476 Mass. 275, 280-281 (2017).
“The United States Supreme Court has not clearly defined the point at which agency arises.” Commonwealth v. Murphy, 448 Mass. 452, 460 (2007). At the very least, “there must be some arrangement between the Commonwealth and the informant before the informant‘s actions can be attributed to the Commonwealth.” Caruso, 476 Mass. at 282. Put another way, “where there is an ‘articulated agreement containing a specific benefit,’ an agency relationship has been established.” Murphy, supra at 460, quoting Commonwealth v. Reynolds, 429 Mass. 388, 394 (1999). Accordingly, someone “who is paid by the government for incriminating evidence” or “who receives a promise of the recognition of cooperation” and thereafter deliberately elicits statements from a defendant is a government agent. Foxworth, 473 Mass. at 157, citing United States v. Henry, 447 U.S. 264, 271 (1980), and Reynolds, supra at 394 & n.7. The agreement or promise need not be express, and, instead, “may evolve[] by implication from the conduct of the parties” (citation and quotation omitted). Foxworth, supra at 158. With that said, “someone who has not entered into any agreement with the government, and who reports incriminating evidence to police out of conscience or even an unencouraged hope to curry favor is not acting as a government agent” (citation and quotations omitted). Id.
The defendant argues that the government sowed the seeds for Bogacz and Sweeney to act as agents when, at the police station on April 20, 2005, police asked individuals arrested during the large drug sweep whether they had information regarding the April 16 murders of Waryasz and Hall. As an initial matter, however, there is no evidence in the record before us that either Bogacz or Sweeney was questioned about the murders when they were arrested on April 20. Even assuming they were, mere knowledge of the government‘s desire for information about a
unencouraged hope that they could curry favor with the government by providing information regarding the April 16 murders.
For an agency relationship to exist, the agreement or arrangement between the government and the witness, be it express or implied, must have arisen prior to the elicitation of information from the defendant. See Caruso, 476 Mass. at 282 (“No agency relationship exists in the absence of a prior arrangement between the Commonwealth and the informant“). In Sweeney‘s case, he did not meet or communicate with anyone from the government until he was visited by Gibbons and another State police officer on June 1, 2005, weeks after the defendant had asked him for an alibi and then threatened him when he refused to do so. Accordingly, even if Sweeney reached an agreement or arrangement with the government at the June 1 meeting, a proposition not supported by evidence, no agency relationship existed at the material time.
As for Bogacz, he had three relevant interactions with the government. First, there was his April 27, 2005, meeting with Gibbons and Wildgrube at the house of correction,13 but no promises, rewards, or inducements were offered to him at that time. Accordingly,
Bogacz next communicated with police on May 4, 2005, when he called Gibbons by telephone from the house of correction, seeking to provide information on an unrelated narcotics matter. Gibbons responded that he would pass on the information to the officers working on that matter. He also told Bogacz that he had talked to the assistant district attorney and passed on the information Bogacz had provided on April 27 regarding his sale of crack cocaine to the defendant. The defendant attaches great significance to this, but the mere assurance that information has been or will be passed along does not create an agency relationship. See Commonwealth v. Tevlin, 433 Mass. 305, 320 (2001) (no agency relationship where trooper made no promise and merely said she would take information to district attorney‘s office). Gibbons did not tell Bogacz that the assistant district attorney was prepared to provide anything in return for past or future information. Instead, Gibbons, who had been directed by the assistant district attorney not to offer any promises, rewards, or inducements to Bogacz, merely reported, “[W]e‘re going to see what your status is.” In other words, Bogacz‘s status with the government had not changed. Notably, there was no mention during the May 4 telephone call of the defendant‘s presence at the house of correction, even though he had arrived there by that time, or any suggestion from Gibbons that Bogacz should track the defendant down and probe for information about the murders. In the end, therefore, there was nothing about the May 4 telephone call that transformed Bogacz into a government agent.
Finally, there was Bogacz‘s May 5 telephone call, in which he was looking to report to Gibbons on the defendant‘s initial request for an alibi and to express his own desire for a transfer out of the house of correction. Gibbons was not available to take the telephone call, however, and the State trooper who answered merely suggested that he would have Gibbons “get in touch with” Bogacz. No promises, rewards, or inducements were offered to Bogacz during this extremely brief exchange.15 Nor was there anything about the telephone call that gave rise to an implied
The defendant has further argued that the statements made to Bogacz and Sweeney should have been excluded because they were the product of an unethical ruse orchestrated by the prosecutor. Specifically, he maintains that the prosecutor had him arrested on May 3, 2005, on “dubious legal grounds” for the theft of the bottle of liquor,17 rather than for the murder of Waryasz and Hall, so that he could be detained in the “informant-rich environment” at the house of correction and preyed upon for information about the murders without fear of violating his right to counsel with respect to those more serious charges. To be sure, it would be a violation for the government to intentionally create a situation likely to induce a defendant to make incriminating statements in the absence of counsel after the right to counsel has attached. See Caruso, 476 Mass. at 281-282, citing Henry, 447 U.S. at 274; Harmon, 410 Mass. at 428. However, even if the defendant had established everything else necessary to advance his argument as formulated, he still would have to establish that Bogacz and Sweeney were government agents when the statements at issue were made. See Henry, supra at 270-275 (statements suppressed where inmate, who was government agent, engaged defendant, fellow inmate in same prison, in conversation). Again, this he has failed to do.
b. Undisclosed evidence. The defendant next argues that he must be granted a new trial for what he alleges is the Commonwealth‘s failure to produce specifically requested exculpatory information relevant to the jailhouse witnesses. To prevail on these claims, he must show that the undisclosed evidence existed and was exculpatory, he made a specific request for it, the prosecution failed to produce it, and a “substantial basis exists for claiming prejudice from the nondisclosure.” Commonwealth v. Lykus, 451 Mass. 310, 326 (2008), quoting Commonwealth v. Tucceri, 412 Mass. 401, 412 (1992). See Commonwealth v. Ferreira, 481 Mass. 641, 650 (2019), S.C., 490 Mass. 1002 (2022), quoting Commonwealth v. Imbert, 479 Mass. 575, 582 (2018) (burden can be met by showing “reasonable possibility” that “nondisclosed evidence would have made a difference“). The verdict and judgment must be set aside unless the reviewing court‘s “conviction is sure that the error did not influence the jury, or had but very slight effect.” Commonwealth v. Ellison, 376 Mass. 1, 24-25 (1978), quoting United States v. Agurs, 427 U.S. 97, 112 (1976). We review each claimed violation.
i. Undisclosed Sweeney evidence. As Sweeney acknowledged at trial, he had pleaded guilty in November 2005 -- prior to entering into his cooperation agreement -- to five counts of distributing cocaine and had been sentenced to eighteen months in a house of correction, followed by three years of probation. At the time of the defendant‘s trial, Sweeney no longer was incarcerated but was still on probation. After trial, the defendant learned that a notice of surrender and hearing for an alleged violation of probation had issued on April 19, 2007, due to
Also, as we have counselled, the “proper route for [a] defendant to obtain prior convictions of prospective witnesses from the Commonwealth is by requesting the judge to order the probation [service] to produce them.” Commonwealth v. Martinez, 437 Mass. 84, 95 (2002), citing
There is no doubt that Sweeney was an important witness for the prosecution and that his testimony was helpful to the Commonwealth‘s case. But it is also true that several other witnesses provided similar testimony, i.e., that they were approached by the defendant following the murders and pressed to help him with an
ii. Undisclosed Bogacz evidence. The defendant claims that the Commonwealth failed to disclose prior to trial that Bogacz had provided Gibbons with information many years earlier, in the 1980s, in another case. According to Gibbons‘s undisputed testimony at the evidentiary hearing on the motion for a new trial, however, he did not provide Bogacz with any promises, rewards, or inducements on that occasion and did not speak to prosecutors on Bogacz‘s behalf.20 The undisclosed information, therefore, was not exculpatory in nature and did not need to be disclosed. Cf. Commonwealth v. Watkins, 473 Mass. 222, 232 (2015) (evidence of understanding or agreement between government and witness is exculpatory evidence and must be disclosed).
The defendant also asserts that the Commonwealth failed to disclose that Bogacz was the subject of a pending drug investigation at the time he testified at trial. The sole basis for this assertion is a statement by a prosecutor, made at Bogacz‘s sentencing hearing one month after the defendant‘s trial, that there had been an investigation of drug use at the Hampshire County house of correction the last time Bogacz was detained there, and that Bogacz had refused to provide a drug screen. As a result, the prosecutor was not certain that Bogacz would be welcomed at the facility. It is not at all evident from this, however, that Bogacz was the subject of a pending drug investigation at the time he testified, or that the prosecutor in the defendant‘s case was aware of it or that Bogacz had been promised leniency in the event that the drug investigation revealed he had engaged in further criminal activity.
Although he was not essential to the Commonwealth‘s case in light of all the other evidence connecting the defendant to the
iii. Undisclosed audio recording. Prior to trial, the Commonwealth failed to produce the audio recording of the defendant‘s interview with police on May 3, 2005, following his arrest for the theft of the liquor bottle. As the Commonwealth concedes, this was a violation of its mandatory discovery obligations. See
c. Denial of request for voir dire. The defendant next argues that he is entitled to a new trial because the trial judge refused his pretrial request for voir dire of Bogacz and Sweeney. More specifically, he argues that due process and the right to a fair trial require, upon request, a voir dire of any witness testifying pursuant to a cooperation agreement before being allowed to testify at trial because such a witness is inherently unreliable. This argument need not detain us long, for this court already has “recognized that testimony pursuant to a plea or cooperation agreement, founded on a promise of truthful cooperation, and the agreement itself are admissible” (quotation, citation, and alterations omitted). Commonwealth v. Cruz, 442 Mass. 299, 310 (2004) (rejecting defendant‘s argument that witnesses testifying pursuant to promises of consideration by Commonwealth should have been excluded on ground that testimony was “irretrievably unreliable“). We have, however, established guidelines for use when such a witness testifies to minimize any risk that the jury will believe the witness because the Commonwealth, in effect, appears to have vouched for the truthfulness of the testimony. Id. See Commonwealth v. Ciampa, 406 Mass. 257, 264-266 (1989). The trial judge here properly followed those guidelines and instructed the jury on three separate occasions that Bogacz and Sweeney had a personal interest in the case that was different from the ordinary witness, that the Commonwealth had no greater ability than the jury to know whether Bogacz and Sweeney were testifying truthfully, that it was solely for the jury to decide whether those witnesses had been truthful, and that their testimony should be scrutinized with caution and weighed with great care. That is all that was required.
The trial judge denied the defendant‘s motion to exclude the testimony of Bogacz and Sweeney without conducting a voir dire, after finding that the submission in support of the motion was insufficient. Having reviewed the submission, we cannot say that this constituted an abuse of discretion. See Commonwealth v. Rodwell, 394 Mass. 694, 698-699 (1985), S.C., 432 Mass. 1016 (2000) (judge did not abuse discretion in denying motion to
With respect to Sweeney, the trial judge denied the request for an evidentiary hearing in support of the motion for a new trial after determining that, once again, the defendant had failed to establish that there was a substantial issue whether he was a government agent. See Commonwealth v. Marrero, 459 Mass. 235, 240 (2011) (judge may rule on motion for new trial without evidentiary hearing if no substantial issue raised by motion or affidavits);
3. Perjured testimony. The defendant contends that the prosecutor allowed multiple witnesses to commit perjury during the trial and failed to take steps to correct it. “The Commonwealth may not present testimony at trial ‘which [it] knows or should know is false.‘” Commonwealth v. Ware, 482 Mass. 717, 721 (2019), quoting Commonwealth v. Forte, 469 Mass. 469, 490 (2014). See Commonwealth v. Moore, 489 Mass. 735, 747 n.23 (2022). “Nor may the Commonwealth, ‘although not soliciting false evidence, allow[] it to go uncorrected when it appears.‘” Ware, supra, quoting Commonwealth v. Hurst, 364 Mass. 604, 608 (1974). However, “[m]inor inconsistencies do not constitute falsities.” Forte, supra at 491. The prosecutor also does not have a “duty to try the defendant‘s case for him by attempting to impeach the testimony of the Commonwealth‘s own witnesses with . . . documents in the defense counsel‘s possession.” Commonwealth v. Jewett, 442 Mass. 356, 363 (2004).
The defendant asserts that Gibbons lied, and the prosecutor failed to correct him, on multiple occasions during the trial. The
At trial, the prosecutor also elicited testimony from another State police trooper to the effect that the defendant initially had agreed to provide police with the container of water Waryasz had given him in case he needed it for his radiator, but later claimed he could not find it. According to the defendant, the container had been found by police at the gasoline station, meaning the prosecutor‘s suggestion that he had concealed it was deliberately misleading. There was, as the defendant suggests, a plastic container
Having reviewed the defendant‘s allegations of perjury, we have no concern that false or misleading testimony affected the judgment of the jury.23
4. DiGiambattista instruction. When the defendant was first interviewed by police on April 18, 2005, approximately the first hour of the interview was not audio recorded. Instead, police drafted a written statement based on what the defendant revealed during that hour, which the defendant reviewed, signed, and then read aloud so that it could be audio recorded. Both the recording and the written statement were admitted at trial. As a result of the police‘s failure to audio record the initial hour of the interview, however, the defendant requested that the jury be instructed pursuant to Commonwealth v. DiGiambattista, 442 Mass. 423 (2004). The trial judge agreed and provided such an instruction, but the defendant claims it was incomplete and failed to apprise the jury that they could consider the lack of a recording when trying to assess the reliability of testimony regarding statements allegedly made by the defendant during the interview. We review for prejudicial error.24 See Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008) (where “issue was properly preserved, we review
In DiGiambattista, 442 Mass. at 447-448, we held, in an exercise of our supervisory powers, that
“when the prosecution introduces evidence of a defendant‘s confession or statement that is the product of a custodial interrogation or an interrogation conducted at a place of detention (e.g., a police station), and there is not at least an audiotape recording of the complete interrogation, the defendant is entitled (on request) to a jury instruction advising that the State‘s highest court has expressed a preference that such interrogations be recorded whenever practicable, and cautioning the jury that, because of the absence of any recording of the interrogation in the case before them, they should weigh evidence of the defendant‘s alleged statement with great caution and care.”
Here, the trial judge instructed the jury:
“Now, our Supreme Judicial Court has expressed a preference that interrogations be recorded whenever practicable. An unrecorded statement does not present to the jury evidence
of the totality of the circumstances, but instead only presents the jury with an abbreviated summary of those circumstances and the interrogating officer‘s recollection of the highlights of those circumstances. Consequently, when the Commonwealth introduces evidence of a defendant‘s statement that is a result of a custodial interrogation or an interrogation at a place of detention, and there is not, at least, an audiotape recording of the complete interrogation, the jury should use great caution when trying to assess the totality of the circumstances.
“You are advised that the absence of a recording permits, but does not compel, you, the jury, to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt.
“If the Commonwealth satisfies its burden that the statement was made freely, voluntarily and as a product of his own free will and rational mind, then you may consider the statement in your evaluation of the evidence.”
We have never required the use of precise language when providing a DiGiambattista instruction. See Commonwealth v. Barbosa, 457 Mass. 773, 801 (2010), cert. denied, 563 U.S. 990 (2011). Nor do we do so now. As noted above, we have required that a judge “tell the jury both that (1) the State‘s highest court prefers that custodial interrogations be tape recorded, whenever practicable, and (2) where there is not at least an audiotape recording of the complete interrogation, the jury should weigh the defendant‘s statements with great caution and care.” Id. In addition, “[w]here voluntariness is a live issue at trial and the humane practice instruction is given, we also require that the jury be instructed ‘that the absence of a recording permits (but does not compel) them to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt.‘” Id. at 800 n.26, quoting DiGiambattista, 442 Mass. at 448. Here, while it would have been preferable for the trial judge to have more clearly tied the warning to weigh unrecorded statements with “great caution and care” to the issue of reliability, as well as voluntariness, the instruction adequately conveyed that message and hit on all three points of emphasis from DiGiambattista. The message also had been conveyed throughout the trial. On cross-examination, Gibbons testified that it was a violation of office policy not to have recorded the interview, that he told the State police troopers conducting the interview to stop once he learned they were not recording it, and that there was no way for the jury to know the questions or responses without a recording. Defense counsel then repeated those points in closing argument.
The instruction satisfied DiGiambattista, and to the extent there were any even arguable deficiencies, we are certain that they did not influence the jury, or, at most, had but very slight effect.25
The defendant claims that the prosecutor engaged in misconduct during closing argument. The claim is without merit.
The defendant claims that the prosecutor misstated the evidence by arguing to the jury that (1) the defendant‘s DNA was under Waryasz‘s fingernails; (2) the defendant had turned his van around before leaving the gasoline station to make it easier to load the cash register; and (3) Waryasz “put her hand on her abdomen in death and hug[ged] her child in death.” The evidence, however, established that (1) the defendant was “a potential contributor” to the mixture of DNA recovered from Waryasz‘s fingernails, with a random selection probability of one in 207,000; and (2) witnesses who observed the defendant‘s van parked in front of the station building had it facing in opposite directions, with the “paint guy” -- the last person to see it prior to the murders -- testifying that it was parked facing out, toward the street, meaning the large side door of the van was facing the building. Clearly, therefore, the first two statements to which the defendant objects were reasonably grounded in the evidence. See Commonwealth v. Lao, 460 Mass. 12, 21-22 (2011) (prosecutor entitled to suggest inferences to be drawn from evidence, which “need not be inescapable, just reasonable and possible“). The third statement is a closer call.
“[P]rosecutors are entitled to argue forcefully for the defendant‘s conviction” (citation and quotation omitted). Commonwealth v. Rutherford, 476 Mass. 639, 643 (2017). However, “an improper inference that unfairly invite[s] the jury to decide the case based on sympathy for the victim” cannot be tolerated. Id. at 646. Certainly, the prosecutor‘s statement suggesting that Waryasz was hugging her child in death had the potential to invite sympathy for the victim. Having said that, the evidence did establish that when Waryasz‘s body was found in the service bay, her right arm was down to her side, and her right hand was on her abdomen. Accordingly, while close, we cannot say that the remark crossed the line; it was properly inferred from the evidence and did not unfairly invite sympathy in a case that, inescapably, involved the murder of a pregnant woman.
The defendant further suggests that the prosecutor impermissibly commented on the defendant‘s prearrest, pre-Miranda silence by noting, for example, that the defendant failed to disclose his purchases of crack cocaine when, during his police interviews, he provided accounts of his whereabouts on the day of the
6. Change of venue.
Shortly before trial, the defendant moved, pursuant to
“The
“The mere existence of pretrial publicity, even if it is extensive, does not constitute a foundation of fact sufficient to require a change of venue” (citation omitted). McCowen, supra. “To establish prejudice stemming from extensive pretrial publicity or settled community opinion, the defendant must show either presumptive prejudice or actual prejudice.” Hoose, supra at 405-406, citing Toolan, supra. Here, the defendant has not alleged that the pretrial publicity caused actual prejudice to infect the jury, only that it caused the jury to be presumptively prejudiced against him.
“A trial judge should exercise [the] power to change the venue of a trial with great caution and only after a solid foundation of fact has been first established” (citation and quotation omitted). McCowen, 458 Mass. at 476. At the same time, the trial judge has “substantial discretion” in deciding the motion, and we review his ruling for an abuse of that discretion. Toolan, 460 Mass. at 463. See Skilling, 561 U.S. at 378 n.11 (trial “court calls on the necessity of transfer are granted a healthy measure of appellate-court respect“). “In evaluating the risk of prejudice posed by pretrial publicity, we give careful attention to the evaluation of the trial judge, especially one who, as here, presides in the county where the crime occurred and is familiar with the nature and pervasiveness of the pretrial publicity.” McCowen, supra.
“Presumptive prejudice occurs when the jury pool in the community has been so tainted by pretrial publicity that the entire venire may be presumed prejudiced regardless of the specific voir dire procedures utilized.” Hoose, 467 Mass. at 406, citing Toolan, 460 Mass. at 463. It “exists only in truly extraordinary circumstances,” Toolan, supra, where the “trial atmosphere is . . . ‘utterly corrupted’ by media coverage.” Commonwealth v. Entwistle, 463 Mass. 205, 221 (2012), cert. denied, 568 U.S. 1129 (2013), quoting Skilling, 561 U.S. at 380.
While not exclusive, “[t]wo factors play a central role in creating the presumption of prejudice. First, the nature of the pretrial publicity, specifically whether it is both extensive and sensational, is a highly significant factor. Second, whether the judge was in fact able to empanel jurors who appear impartial is the factor of primary importance” (citations and quotation omitted). Hoose, supra. See Toolan, supra (identifying other possible factors, like size of community, content of news stories, time between peak media coverage and trial, and any evidence from verdict itself, such as acquittal on any charges). Here, the trial judge considered the relevant factors and concluded that the defendant had failed to sustain his burden of showing that the venire was presumptively prejudiced by pretrial publicity. Having reviewed the same record, we conclude that this was not an abuse of discretion.
The publicity was not extensive. In support of his motion for a new trial, the defendant submitted a total of fifty-eight “articles” published prior to May 11, 2007, the day the jury empanelment was finalized.26 The articles, mostly from a local newspaper, appear to have been located through a computer archival search.
suggested the population at that time was approximately 70,000, the publicity was not, as the defendant suggests, all-consuming and constant. Cf. Skilling, 561 U.S. at 381.
The publicity also was not sensational. “Publicity is sensational when it contains emotionally charged material that is gratuitous or inflammatory, rather than a factual recounting of the case.” Hoose, 467 Mass. at 407. The articles consisted almost exclusively of factual recountings.27 They largely tracked events in the case, reporting on what was revealed in open court. Many were logs of activity on all cases scheduled in a court on a given day, buried in which were extremely brief references to the defendant (or his wife). The articles dedicated to the defendant‘s case, meanwhile, were full of redundant restatement of facts. Some articles noted that Waryasz was pregnant, well-liked, and now missed by those close to her. There also were references to the defendant‘s criminal history, his drug habit, and the withdrawal of his attorney. And while the defendant suggests that the pretrial publicity was sensational due, in part, to the fact that this was an interracial murder, only five of the articles either directly or
indirectly referenced his race, and three of those references were in quotes from the defendant, his wife, and a third party who was protesting outside the court house on behalf of the defendant. As the trial judge rightly concluded, this mostly “fact-based publicity . . . is not the sort of sensational publicity that would give rise
The defendant also failed to establish that it was practically impossible to empanel an impartial jury. “We have measured this practical impossibility by looking to the percentage of the venire that was dismissed for cause as a result of prejudice from exposure to pretrial publicity.” Hoose, 467 Mass. at 407-408, citing Morales, 440 Mass. at 541. “Although we have not identified a specific percentage of dismissals that will trigger the presumption, we have held that dismissal of as much as forty-two per cent of the venire is not sufficient to give rise to a presumption that the entire venire was tainted by pretrial publicity.” Hoose, supra at 408, citing Commonwealth v. Angiulo, 415 Mass. 502, 515 (1993). As the trial judge observed in his decision denying the motion for a new trial, “It took only two days to empanel [sixteen] jurors. In that process, [fourteen] of 150 potential jurors were excused due to prejudice from pretrial publicity, and [the defendant] had four unused peremptory challenges.”28 That is a rate of less than seven percent. It is not a rate that would cause “a shadow of doubt [to] be cast over the remaining venire members such that the prejudice of the remaining venire members may be presumed.” Hoose, supra, citing Angiulo, 897 F.2d at 1181-1182. The defendant has failed to establish presumptive prejudice.
7. Juror impartiality.
The defendant argues that his right to an impartial jury was violated by the seating of a particular juror. Following an individual voir dire with the prospective juror, the trial judge found him to be impartial. When neither the Commonwealth nor the defendant exercised a peremptory challenge, the juror was then seated on the jury and, eventually, chosen as the foreperson. “[W]here a defendant fails to challenge a juror for cause, the questions of the impartiality of that juror and the adequacy of voir dire are waived” (citation omitted). Commonwealth v. Heywood, 484 Mass. 43, 45 (2020). Therefore, “we review to determine whether there was error, and, if so, whether it created a substantial
likelihood of a miscarriage of justice.” Commonwealth v. Perez, 460 Mass. 683, 689-690 (2011).
We begin with the relevant parts of the voir dire. After the
Q.: “Would the fact that the [d]efendant is African-American and the alleged victims white affect your ability to decide this case fairly and impartially?”
A.: “No, it would not.”
Q.: “Do you believe that African-American males are more likely to commit crimes than individuals from other racial or ethnic backgrounds?”
A.: “Yes, I believe they probably are.”
Q.: “Why is that?”
A.: “By statistics, from what I‘ve read; not just more likely to commit crimes, more likely to be victims. There apparently is more crime in the African-American community in my opinion.”
Q.: “Having that information, would that affect your ability in deciding the facts in this case?”
A.: “No, no, because it doesn‘t have anything to do with this specific case.”
Q.: “Now, are you conscious of any feelings of racial bias or prejudice which might tend to influence your decisions in this case?”
A.: “No.”
The defendant claims that the trial judge erred, in responding to the prospective juror‘s answer regarding the likelihood of African-American males to commit crimes, by failing to conduct further inquiry to ensure that the prospective juror was impartial. We disagree.
“The presence of even one juror who is not impartial violates a defendant‘s right to trial by an impartial jury” (citation omitted). Commonwealth v. Ralph R., 490 Mass. 770, 780 (2022). Accordingly, while a “trial judge is accorded considerable discretion in the jury selection process and his finding that a juror stands indifferent will not be disturbed except where juror prejudice is manifest,” the judge “must be zealous to protect the rights of an
In Commonwealth v. Williams, 481 Mass. 443, 448 (2019), we provided the following direction for trial judges:
“Where a prospective juror has expressed or formed an opinion regarding the case, or has an interest, bias, or prejudice related to the unique situation presented by the case, the judge must satisfy him- or herself that the prospective juror will set aside that opinion or bias and properly weigh the evidence and follow the instructions on the law. Otherwise, removal of the prospective juror is clearly appropriate in the interest that persons actually prejudiced not be seated on the jury even if it tends to skew an otherwise balanced panel.
“Where, on the other hand, a prospective juror has expressed an opinion or world view based upon his or her life experience or belief system, rather than asking him or her to set it aside (which is difficult if not impossible to do), a judge must determine whether, given that particular opinion, the juror nevertheless is able to be impartial in the case to be tried.” (Citations and quotations omitted.)
Id. at 448-449. The trial judge here conducted the voir dire consistent with these directions.29
After the prospective juror disclosed his belief that African-American males are more likely to commit crimes, the trial judge did not ask him to set that belief aside but, rather, asked whether, notwithstanding that belief, he would be able to decide the case based on the facts. He answered in the affirmative. The trial judge also asked whether he was aware of feelings of racial bias or prejudice that might tend to influence his decisions in the case, to which he answered in the negative. The trial judge, therefore, appropriately focused on whether, given the prospective juror‘s particular belief, he nevertheless would be able to be impartial in the defendant‘s case. Having done so, we cannot say that the trial judge, who had the benefit of personally interacting with and observing the prospective juror, committed an abuse of discretion, never mind a substantial miscarriage of justice, in declaring him
(2002) (decision whether to accept declaration of “juror that he or she is disinterested lies within the broad discretion of the trial judge“). See also Commonwealth v. Mattier (No. 2), 474 Mass. 261, 274-275 (2016).30
8. Third-party culprit evidence.
At trial, the defendant offered evidence to suggest that an individual named Anthony Cox could have been the murderer and that police had not done enough to explore that possibility. The evidence was weak at best. The evidence was offered through the testimony of Cox‘s former girlfriend, who stated that she had been home cleaning her car on April 19, 2005, when Cox approached carrying license plates to his vehicle, a white Ford Explorer. She then opened the trunk of her car and he put them in. She never saw Cox‘s vehicle again.
Police had interviewed Cox on May 2, 2005, on a prompt from the defendant‘s wife. He was cooperative and voluntarily
submitted a buccal swab and a palm print. His fingerprints did not match any found at the gasoline station. He also was excluded as a source of the DNA mixture found on Waryasz‘s fingernails. And while he “could have been a potential contributor of the minor DNA identified on” the ends of the ligature, the State police chemist who conducted the analysis testified that it was only at a random selection probability rate of one in two, meaning that Cox was among the fifty percent of the African-American population who could not be excluded as a potential contributor. There also was no evidence to suggest that Cox ever owned a dark-colored van, that a white Ford Explorer had ever been associated with the murders, that anyone had seen Cox at the gasoline station on April 16, or that anyone had described an individual matching his height and weight as having been there that day.
Against that backdrop, the defendant argues that the trial judge erred when he refused to allow Cox‘s former girlfriend to testify
Subsequently, the defendant included in his motion for a new trial the ground that he had newly discovered evidence of further violence on the part of Cox. Specifically, in 2017, ten years after the defendant‘s trial, the defendant‘s investigator spoke with a woman who reported that Cox had assaulted and raped her because he suspected she was an informant and threatened to kill her because she was a witness against him. According to the investigator‘s report, the woman alleged that Cox choked her, pressed a screwdriver to her neck, and punched her during the rape. Records indicate that Cox was indicted in connection with the incident on November 18, 2005, and later pleaded guilty to indecent assault and battery, assault and battery, and threatening to commit a crime. At the plea hearing, however, the prosecutor made no reference during the presentation of the anticipated evidence to Cox having choked the victim, and Cox did not admit to having done so.
“Where a defendant moves for a new trial on the ground of newly discovered evidence, the defendant must show that the evidence is in fact newly discovered; the newly discovered evidence is credible and material; and the newly discovered evidence casts real doubt on the justice of the conviction” (citation and quotations omitted). Commonwealth v. Teixeira, 486 Mass. 617, 640 (2021). The trial judge concluded that, as with the prior evidence he had excluded at trial, the defendant had not shown that the “newly discovered” evidence of Cox‘s assault and battery
9. Armed robbery.
Except where a conviction of murder in the first degree is based on a theory in addition to a theory of felony-murder, a separate conviction of an underlying felony is duplicative of the felony-murder conviction. See Commonwealth v. Lopes, 455 Mass. 147, 148 (2009); Commonwealth v. Brum, 441 Mass. 199, 200 n.1 (2004). The defendant‘s conviction of murder in the case of Waryasz was based on an additional theory, but the conviction of murder in the case of Hall was not. As the Commonwealth concedes, therefore, the armed robbery conviction is duplicative and must be vacated, and the charge must be dismissed.
10. Review under G. L. c. 278, § 33E .
The defendant suggests that the evidence of his guilt was “not overwhelming” but, rather, “either explained by him, or conspicuously absent, even contradicted.” He also suggests that the trial was so “infected” with errors as to have denied him due process and created a substantial risk of a miscarriage of justice. We disagree in all respects. Having reviewed the entire record under
Conclusion. For the foregoing reasons, we affirm the convictions
So ordered.