On Mаy 23, 2004, the police found the body of Kayla Ravenell in the Great Pond Reservoir in Braintree. The body of her two year old son was found the following morning; he had been suffocated to death, put in a trash bag, and then thrown out a window. The defendant, Jims Beneche, who was Ravenell’s former boy friend and the father of the two year old, was indicted for the murders, as was his then current girl friend, Jessica Deane. Beneche was tried separately, and a Superior Court jury found him guilty as a joint venturer of murder in the first degree on both indictments, on theories of deliberate premeditation and extreme atrocity or cruelty. 1
On appeal Beneche argues that (1) the evidence was insufficient to support the verdicts; (2) his right to silence was violated by the admission of testimony that, inter alia, he was unresponsive to police allegations that he threw his son out the window; (3) the trial judge erred in instructing the jury that Deane had been convicted of the two murders; (4) the judge erroneously instructed the jury that the defendant was present at the scene of the crime; (5) the judge erred in failing to conduct a voir dire to determine
1. Background. We summarize the evidence as the jury could have found it, focusing on the facts relevant to the defendant’s challenge to the sufficiency of the evidence, and reserving certain facts for later discussion.
a. History of defendant’s relationships with Ravenell and Deane. Beneche and Ravenell began dating while in high school during thе fall of 1999. Their relationship continued for several years and on February 22, 2002, the couple’s child was born. Although Beneche and Ravenell remained together after the child was bom, and he took responsibility for being the child’s father, the relationship soon began to deteriorate and ended during the summer of 2002. Later that year, Beneche began dating Deane.
Approximately one year after Deane and Beneche began dating, Deane moved into the apartment at 824B Border Street in the Shore Plaza apartment complex in the East Boston section of Boston that Beneche shared with his mother and brother. According to close friends, Beneche and Deane loved each other, were “very happy together,” were together every day, and exhibited many personal displays of affection. Deane wrote several love letters to Beneche, which he kept in his top dresser drawer, expressing, “I will prove my love to you. You’re my everything . . . I’m willing to die for you. I would do anything for you, no matter what it was. I’d kill someone for you. I would still do it just because you asked me to.” The couple planned to move into their own apartment, and they told friends that they were married.
As Beneche’s relationship with Deane grew more serious, his relationship with Ravenell became more tumultuous. Although electronic mail messages (e-mails) between him and Ravenell suggest that the two were still close, their relationship also
On July 20, 2003, Ravenell went to the East Boston police station with her child. She was crying and the right side of her face was swollen. Ravenell claimed that she had asked Beneche for money, and that he became angry and struck her. He then threw twelve dollars at her and called her a “bitch.” 2 Beneche was subsequently arrested; the charges against him for this incident were ultimately dropped. Beneche complained to friends that Ravenell had him arrested.
On September 3, 2003, police officers responded to a “domestic violence” call at Ravenell’s apartment at 3 Monadnock Street in the Dorchester section of Boston. Beneche and Ravenell had been arguing over money, and each claimed to havе been hit by the other. Beneche was angered further by this and other incidents involving the police.
Additionally, Beneche’s continued contact with Ravenell (when he visited his son at her apartment) caused him problems in his relationship with Deane. After Beneche returned from visiting his son, he often engaged in heated arguments with Deane, who wanted him to have nothing to do with Ravenell and his child. Deane was jealous of Ravenell and the child, and according to a friend, “wished them death.” Deane frequently told her friends and others how much she hated Ravenell. She was upset that Beneche had a child with Ravenell because she wanted to have his first son. In an undated letter to a friend, which was found in Beneche’s apartment after the murders,
Deane also made numerous harassing and threatening telephone calls to Ravenell from Beneche’s telephone. Beneche was aware of these calls and they were witnessed by several of their friends. In January, 2004, after Ravenell complained to the police that she had received threats from a female voice coming from Beneche’s number and had heard his voice in the background, the police began an investigation. When questioned by the police, and later under oath at a clerk’s hearing, Beneche denied that he had a girl friend and that a female had called from his telephone. Not only did he lie to protect Deane, but Beneche alleged that he was the “true victim” and filed for a protеctive order against Ravenell.
During the week before the murders, the conflict between Beneche and Ravenell intensified. Ravenell sent Beneche an e-mail on May 18, 2004, that in harsh terms and profanity criticized the defendant for giving her a sexually transmitted disease, and for being jobless, useless, and a bad father who owed child support. Among other things, she told him, “Do everyone a favor, jump in front of a bus or just kill yourself. You won’t be miss[ed] over here.” She threatened to contact his mother to expose his problems, and vowed to cut off contact with him. In response, Beneche sent Ravenell an e-mail the following day stating, “I guess this is the end of the road. It had to happen someday I guess. Well, goodbye forever, and I hope you have a good life.” During the same week, Deane announced to her friends that she was pregnant with Beneche’s child.
b.
The murders.
The victims were killed late in the evening of May 22 or early in the morning of May 23. Photographs from a security camera at 3 Monadnock Street showed Ravenell and her son leaving their apartment in pajamas at approximately 11 p.m. Ravenell drove her mother’s 1996 Chevrolet Corsica
Ravenell and Beneche’s child was also beaten; his skull was fractured. The bruise marks around his neck, nose, and mouth indicated that he was suffocated by one hand squeezing his neck while another compressed his nose and mouth for at least ninety seсonds. The jury could have found that Beneche cut his fingers while beating the victims; his blood was later found on a large rock in the apartment and on Deane’s boots, later recovered from the apartment.
Shortly after the murders, in the early morning hours of May 23, 2004, a neighbor of Beneche, who had gone outside to smoke a cigarette, saw Beneche and Deane leaving the building carrying a “big, very long trash bag.” According to the neighbor’s testimony, the bag “seemed to be very heavy,” and one was pulling it as the other was kicking it down the back staircase. The pair placed the bag in the back of the Corsica in which Ravenell had arrived, and they drove to the Great Pond Reservoir in Braintree where they dumped the bag into the pond. It was discovered later that afternoon by an off-duty State trooper who was walking with his sons; 5 it contained Ravenell’s body.
After leaving the reservoir, the defendant and Deane proceeded to the emergency room at a hospital in Broсkton where Beneche was treated for the injury to his fingers. Photographs
Later in the afternoon of May 24, 2004, Beneche and Deane returned to his apartment in East Boston. Beneche’s brother and a neighbor who saw Beneche after the killings did not notice anything different or unusual about his behavior. At approximately 3:45 p.m. Beneche sеnt an e-mail to Ravenell’s e-mail address stating that he had been trying to contact her and was worried about the child’s asthma.
Meanwhile, after finding the body at the reservoir, the police had begun investigating Ravenefl’s murder and were attempting to locate her child. The police arrived at Beneche’s apartment at approximately 2 a.m. on May 24. Beneche’s mother permitted Detective Donald Gosselin, Detective Mark Sherrick, and State Trooper Bruce Tobin to enter the apartment, and indicated that Beneche’s bedroom was upstairs. Beneche and Deane were in the bedroom. When they heard the police, a trash bag containing the child’s body was pushed out of the bedroom window near their bed, landing in a parking area below. 6 As the two detectives walked into the defendant’s bedroom, the defendant and Deane pretended to be asleep.
c.
The defendant’s statements to the police.
After entering the bedroom, the police seрarated Deane and Beneche for questioning. Detective Gosselin then received a call on his radio and ran out of the apartment. Trooper Tobin, who remained
At the station, after being read the Miranda warnings for a second time and signing a waiver form, Beneche made several inconsistent statements to the police regarding his involvement in the killings. 8 First, he said that he had cut his fingers during the early morning of Saturday, May 22, 2004, while preparing food for a “big feast” they were going to have later that day. He again informed the officers that he had not seen Ravenell or his son for a “couple of weeks” and denied any knowledge of their whereabouts. 9
After further questioning, Beneche said that Ravenell had made threats to him, and that when Ravenell “didn’t get her way, she would make it difficult on him and his family.” He explained that Deane and Ravenell hated each other, and then, according to the officer, he “blurted out” that he “figured” this
Beneche then gave differing accounts of what happened when he returned from the apartment from “wandering around the streets.” First he told the officers that when he arrived at the apartment he saw Deane with bruises on her face, and that she admitted to killing Ravenell. When the officers asked where Ravenell’s body was, he changed his story, and said that Deane was not at his apartment when he returned. After thinking again, Beneche returned to his previous statement, said that Deane was at the apartment when he arrived, that she admitted to stabbing Ravenell, and that Deane must have hidden the body in the apartment or called some friends to remove the bоdy. Beneche assured the officers that he neither saw nor was in Ravenell’s car.
According to the officer who was conducting the interrogation, Beneche remained “[u]nemotional,” “[v]ery stoic,” and “like ice” as he talked about the fact that Deane killed Ravenell and his two year old son. Beneche did not ask about how his son was killed, or where the body was located.
Beneche’s defense at trial, articulated in both the opening statement and closing argument of his counsel, was that Deane committed the murders, and that he helped her dispose of the bodies because he believed he would be blamed for the crimes; that he was an accessory after the fact, but not a murderer. He did not testify. We now turn to the merits of his appeal.
2.
Sufficiency of the evidence.
At the close of the Commonwealth’s case, defense counsel moved for required findings of not guilty, and renewed that motion at the close of all the evidence. Beneche chаllenges the denial of those motions on appeal, arguing, as at trial, that the evidence was insufficient to place him at the scene and demonstrate that he participated in
There was no direct evidence that Beneche was an assailant, but “[circumstantial evidence is competent to establish guilt beyond a reasonable doubt.” The inferences drawn from it need only be “reasonable and possible,” not necessary or “inescapable.”
Commonwealth
v.
Bush, 427
Mass. 26, 30 (1998), quoting
Commonwealth
v.
Beckett,
As to the element of intent, the jury could have found that Beneche persuaded Ravenell to bring his son to his apartment on the night of the murder, knowing that Deane would be there and intending to help kill them. The evidence presented regarding the relationship among Beneche, Ravenell, and Deane provided sufficient basis for establishing Beneche’s shared motive with Deane to remove Ravenell and Beneche’s son as an obstacle to their life together. Although the evidence of his desire to kill Ravenell may not have been as strong as the evidence of Deane’s desire to do so, given that she wrote explicit letters and made threatening telephone calls, there was extensive evidence that the relationship between Beneche and Ravenell was increasingly hostile. Ravenell had caused him to be arrested, to be investigated by the police on multiple occasions, and to have to pay child support, and she was the source of many problems in his relationship with his new girl friend, who was having his child. The week before the murder, Beneche sent Ravenell an e-mail stating, “goodbye forever” — a reasonable inference is that he was “plotting” with Deane to kill Ravеnell and his son. Moreover, the extent of the injuries and the fact that the victims were suffocated to death, a process that took (in Ravenell’s case) at least four minutes, further demonstrates that Beneche had the requisite intent.
In addition, the Commonwealth presented evidence that Beneche exhibited consciousness of his guilt, by disposing of the bodies and other evidence of the crime,
10
lying to the police, and sending Ravenell an e-mail after he knew she was dead. Although Beneche argues that this evidence is consistent with his participation as an accessory after the fact who was afraid he would be blamed for the murders, the jury could have found
3.
Right to silence.
During the direct examination of several police officers, the Commonwealth elicited testimony that after being arrested and read the Miranda warnings Beneche remained silent, expressed his desire not to talk about his son’s death, and did not display any emotion. Beneche argues that such testimony constituted a violation of his right to remain silent. See
Doyle
v.
Ohio,
After the police officers entered Beneche’s apartment in the early hours of May 24, 2004, Detective Gosselin received a radio call, left the apartment, and then was alerted that the child’s body had been thrown out the window. Detective Gosselin then returned to the apartment, and, after using some admittedly unprofessional profanities, said to Beneche, “You threw your son out the window. You’re under arrest.”
11
He proceeded to place Beneche in handcuffs and read him the Miranda warnings. At trial, Detective Gosselin testified that in response to his accusation Beneche did not say anything and had “no emotion or reaction at all,” and did not ask about the condition of his child. Similarly, Trooper Tobin testified that Beneche was “unemotional,” “stone cold,” and did
Detective Gosselin walked Beneche down the stairs from his apartment and toward a cruiser. They passed about fifteen feet from the child’s body, such that they could see the “little foot sticking out of the bag.” Detective Gosselin asked Beneche, “How could you throw your son out the window?” According to Detective Gosselin’s testimony, Beneche responded, “I don’t want to talk about it.” Beneche was then pat frisked and transported to the police station in East Boston. Both of the officers who transported him testified that while en route, Beneche remained emotionless and did not ask about his child. Beneche argues that it was a violation of his right to remain silent for the Commonwealth to introduce testimony that while being arrested and transported to the police station, he (1) remained silent and did not ask any questions; (2) stated that, “I don’t want to talk about it”; and (3) was unemotional. 12
“There is no question that, under the fundamental principles of jurisprudence, evidence of a criminal defendant’s postarrest, post-Miranda silence cannot be used for the substantive purpose of permitting an inference of guilt.”
Commonwealth
v.
Mahdi,
The Commonwealth contends that Beneche did not exercise his right to remain silent because he spoke with Trooper Tobin before he was arrested, complained to an officer about being pat frisked,
14
and then gave a statement to the police at the station. This argument is unpersuasive. Beneche spoke with Trooper To-bin before receiving the Miranda warnings and knowing he was under arrest, and he maintained the right to terminate the interview, even if he had previously spoken with an officer. See
The Commonwealth further argues that Beneche’s statement, “I don’t want to talk about it,” was not a sufficient invocation of his right to silence, and is therefore admissible. For support, the Commonwealth relies on several decisions where we considered whether a defendant’s statement regarding his desire to remain silent was legally sufficient to trigger the police officer’s obligation to terminate questioning as required by
Miranda
v.
Arizona,
Although this testimony should not have reached the jury,
4. Instruction as to the verdicts against Deane. Deane, who was tried separately, was convicted of the two charges of murder of Ravenell and her son. The verdicts in Deane’s trial were returned during the fourth day of Beneche’s trial, by a jury deliberating in the same court house. Given the publicity surrounding the Deane trial and the likelihood that the jury in Beneche’s case would hear about Deane’s convictions, the judge asked counsel what if anything they would suggest he should do either to better ensure the jury were not exposed to the news about it or to neutralize the likelihood of exposure with some form of stipulated instructions. Later in the day, the Commonwealth and defense counsel jointly recommended that the judge instruct the jury that Deane had been convicted. The judge did so, in accord with language proposed by counsel, cautioning the jurors that the verdicts in Deane’s case were “of no evidentiary significance” in Beneche’s trial and that it would be “wrong” to take it into account when considering whether Beneche was responsible for the killings.
Beneche now challenges the judge’s instruction on appeal. He argues that because he was prosecuted on a theory of joint venture with Deane, informing the jury that Deane had been
5.
Instruction as to the defendant’s presence at the scene.
Beneche’s challenge to the judge’s instruction on joint venture is also without merit. He claims that the judge removed the Commonwealth’s burden to prove that he was present at the scene of the crime, see
Commonwealth
v.
Green,
6.
Inquiry as to whether there was a sleeping juror.
The trial transcript reflects that on two occasions defense counsel inquired as to whether one of the jurors was sleeping during witness
During the first day of testimony, defense counsel informed the judge during a bench conference, “There’s one juror there that seems to be sleeping.” He then qualified his observation, suggesting, “Maybe he’s taking notes.” The prosecutor confirmed, “Right now he’s taking notes. It looks like he’s sleеping, but he’s taking notes.” The judge thanked defense counsel for alerting him to the issue and assured him that he would “keep a careful eye” on the specified juror. At the next sidebar, defense counsel raised the issue again, stating that “it seemed like he was maybe nodding.” The judge believed the juror “had his eyes open,” and again assured defense counsel that he would keep watching him to “make sure that he stays awake.” The judge stated, “I’ll have the [court] officer speak to him if he seems to be nodding off.” Defense counsel did not request a voir dire and the trial continued without this issue being raised again.
As these two exchanges demonstrate, the judge did not observe the juror sleeping, did not believe that he was “nodding off,” and did not have “reliable information” to the contrary.
Commonwealth
v.
Dancy, supra.
Defense counsel was not even certain that the juror had been sleeping. The judge responded
7. Ineffective assistance of counsel and prior bad acts. Lastly, Beneche contends that his trial counsel was ineffective for failing to object to “prior bad act” evidence, including testimony that the defendant hit Ravenell on July 20, 2003. He further argues that he was denied effective assistance of counsel because his attorney failed to object to violations of his right to silence, failed to object to the jury instructions that he now challenges on appeal, and failed to request that the judge conduct a voir dire as to whether a juror was sleeping. As we have previously addressed these latter issues, finding that none of them merits reversal, we now turn to the argument of ineffective assistance of counsel with respect to prior bad act evidence.
For claims of ineffective assistance of counsel in capital cases, we review “pursuant to G. L. c. 278, § 33E, a standard of review that is even more favorable to the defendant” than that set forth in
Commonwealth
v.
Saferian,
At trial, the Commonwealth presented evidence of three “prior bad acts” that Beneche challenges on appeal. First, an officer who spoke with Ravenell on July 20, 2003, testified that Ravenell’s face was swollen and that she told him that Beneche had hit her. Beneche was then arrested,
19
which angered him greatly.
The second prior bad act challenged was an officer’s testimony that he responded to a domestic disturbance call at Ravenell’s apartment on September 3, 2003, and that both Beneche and Ravenell claimed that each had been hit by the other person. Defense counsel objected, and again the judge gave the jury a limiting instruction. Last, the Commonwealth presented evidence that on January 15, 2004, the police investigated alleged threats made to Ravenell from a female using Beneche’s telephone.
While evidence of the defendant’s prior bad acts is not admissible to show bad character or propensity to commit a crime,
Commonwealth
v.
Helfant,
8.
Review under G. L. c. 278, § 33E.
Having reviewed all aspects of the record in accordance with our obligations under G. L. с. 278, § 33E, including consideration of issues Beneche did not raise on appeal,
22
we discern no substantial likelihood of
Judgments affirmed.
Notes
Jessica Deane was also found guilty of the murders of Kayla Ravenell and her child. We upheld those convictions on appeal. Commonwealth v. Deane, ante 43 (2010).
Ravenell’s statements to the police concerning Beneche’s actions on July 20, 2003, were admitted in evidence not for their truth, but to show the nature of his relationship with the victims.
Beneche’s mother and younger brother, who also lived in the apartment at 824B Border Street, were away that evening.
The same type cable was later found in Beneche’s apartment.
To identify the body, the police released information to the news media. After the 11 p.m. broadcast, Ravenell’s sister contacted the police and identified the body by describing several of Ravenell’s tattoos. The police then went to Ravenell’s apartment, which was neat and showed no signs of being the location of the murder. At that point, the child was still missing and the police sought to locate the boy.
Officer Richard Casallas was positioned in the parking area directly underneath Beneche’s apartment. After the other officers went up to Beneche’s apartment, Officer Casallas heard “fluttering plastic” and turned to see the plastic trash bag hit the pavement, making a “loud thump noise.” Officer Casallas approached the torn bag and saw two small feet in white socks. He opened the bag to find the child’s body, which exhibited signs that he had been dead for some time, including rigor mortis in the fingers.
Miranda warnings were not given to Beneche as a prelude to this initial questioning. The judge properly found that the defendant was not in custody at this point, an issue not raised by the defendant on appeal.
Beneche’s statements were not recorded. The judge gave an appropriate instruction regarding unrecorded statements, as required by
Commonwealth
v.
DiGiambattista,
The defendant also told the police officers that after having his fingers treated at a hospital in Brockton, he had gone home and slept “all day” Saturday and Sunday, and did not get up until he was awakened by the police early Monday morning. The defendant said that he and Deane took the train to the hospital, but could not remember which stops they used to get there. The hospital is not near a train stop. Just before the police arrived, he heard the window close and Deane was the only one in the room with him. He said that due to the injury on his hand, his blood would have been all over the apartment. When an officer questioned him about when it was that he attended the “large dinner,” the defendant had a blank stare, as if he did not know what was being referenced, and then said that they did not have the dinner.
The police investigation did not recover a murder weapon. The police only found one latex glove; the jury could have reasonably believed that Beneche threw away the other glove and other evidence.
The jury were instructed that Detective Gosselin’s statement that Beneche threw the child out the window should not be considered as proof of the fact asserted. The judge allowed the statement to demonstrate Beneche’s demeanor and reaction to the accusation.
Beneche does not challenge (and we see no error in the admission of) Trooper Tobin’s testimony as to his conversation with Beneche before hе was arrested or the testimony regarding Beneche’s statements to the officers and demeanor while at the police station after he waived his Miranda rights and agreed to speak to the police.
To the extent that any of the officers’ testimony that is being challenged
While being pat frisked before being placed in the cruiser, Beneche said to the officer (whom he addressed with an expletive), “Don’t you see I just have boxers on, why are you searching me?”
The Commonwealth also argues that the defendant did not object to the testimony as a strategic trial tactic and that we should therefore not entertain his argument that such testimony was admitted in error. See
Commonwealth
v.
Kirwan,
On the record before us, the decision of defense counsel appears strategic and, in the circumstances, not manifestly unreasonable, especially given the strength of the Commonwealth’s case and the nature of the defense.
The Commonwealth also relied on this stipulation during its summation, arguing to the jury, “[Deane] is a killer. Like [defense counsel] said, she has been convicted. But she was a joint venturer. The decision for all of you to focus on, the facts for all of you to focus on, is what the defendant, Jims Beneche, did.”
Beneche did not bring his claim for ineffective assistance of counsel as part of a motion for a new trial but raises it for the first time on direct appeal. We “will reverse in these circumstances only if the factual basis for the claim ‘appears indisputably on the trial record.’ ”
Commonwealth
v.
Hurley,
This evidence was not objected to when admitted. By way of background,
The judge did not give a limiting instruction with respect to the evidence
Beneche argues also that when the officer testified that Ravenell stated that Beneche had hit her, the Commonwealth violated his confrontation rights protected by the Sixth Amendment to the United States Constitution. Because Ravenell’s statement was to a police officer, Beneche contends that it was testimonial, and because he had no opportunity to cross-examine Ravenell, he argues that its admission at trial was a violation of
Crawford
v.
Washington,
Although not raised by the defendant, we also conclude that there was error in the admission of deoxyribonucleic acid (DNA) evidence that Deane’s hair had been found in the bag with Ravenell’s body and on the child’s body. Two criminalists with the Boston police department crime laboratory testified that the hair from the crime scene, along with a sample from Deane, had been sent for DNA testing to a Federal Bureau of Investigation laboratory in another State and that the laboratory had found that the hair found at the scene was “consistent with being the hair from Jessica Deane.” This testimony was admitted in violation of the defendant’s right to confrontation. See
Melendez-Diaz
v.
Massachusetts,