In 2007, a Superior Court jury found the defend
Facts. We summarize the evidence at trial, in the light most favorable to the Commonwealth, focusing on evidence relevant to the defendant’s attack on the sufficiency of the Commonwealth’s case and reserving certain details for our discussion.
1. Background. Jims Beneche was the former boy friend of Ravenell and the father of her son, who was bom in February, 2002.
The defendant, who lived in Brockton, started dating Beneche in 2003. In the spring of 2004, she began staying with Beneche, who lived with his mother and a brother in an apartment in the East Boston section of Boston. Beneche did not have a driver’s license, and whenever the defendant was with Beneche in a vehicle, she was driving.
The defendant hated Ravenell and her son, and she told numerous friends and acquaintances that she wished they were dead.
In addition, the defendant hated the child because she wanted to have Beneche’s first child. In the spring of 2004, she and Beneche told various people they were either married or engaged. The defendant told others that she was pregnant by Beneche. On Mother’s Day, 2004, the child was hospitalized. Beneche went to the hospital to visit him. The defendant was angry and said that she wished the child would die and that she would get Ravenell and the child out of Beneche’s life.
Several writings by the defendant were introduced at trial. In a letter to Beneche she wrote: “I love you. I’m willing to die for you. I would do anything for you no matter if it was to kill someone for you. I would still do it just because you asked me to.” In an unsent letter addressed to one of her friends, the defendant wrote, in part:
“Oh, yeah, girl, I need you because it’s time. I’m doing that shit with that bitch. I’m plottin’ everything right now so that ain’t no one gets caught up. This bitch is done for finally. I know you got my back. I know there ain’t no one fuckin’ with you cause I’ll kick their fuckin’ ass. Ain’t no one fuck with my road dog.”
Moreover, the defendant told one of her friends that she would kill for Beneche.
At the apartment, Ravenell and the child were beaten and suffocated. The child’s body was placed in a bag that had household trash in it. Ravenell’s body was placed in some black trash bags and a coaxial cable was wound around the bags.
At approximately 2 a.m. on May 23, a neighbor saw the defendant and Beneche struggling to get a trash bag, which police later learned contained Ravenell’s body, down the stairs of the apartment building; the two were dragging and kicking it because they could not lift it. The pair placed the bag in the trunk of Ravenell’s car. The defendant then drove the car to the Great Pond Reservoir in Braintree, an area familiar to her. She and Beneche dumped Ravenell’s body in the pond, where it was discovered the afternoon of May 23 by an off-duty State trooper who had been walking near the pond with his sons.
After they left the reservoir, the pair proceeded to Brockton to a hospital emergency room because Beneche had a cut on his finger. They arrived at approximately 6 a.m. on May 23. The hospital security camera photographed them; at one point, they were holding hands. At approximately 9 a.m., the couple left the hospital and drove to some woods, near an industrial area with which the defendant was familiar, where they left Ravenell’s car. They made their way to the defendant’s mother’s house. The defendant asked her mother for some money for train fare back to Boston.
Before they left Brockton, the pair went to a coffee shop. The owner, who was friendly with the defendant, noticed that the defendant was smiling and seemed happy, whereas Beneche seemed sad. Others who spoke to or saw the defendant on that day also testified that there was nothing out of the ordinary in her behavior or demeanor.
Ultimately, the defendant and Beneche went back to Beneche’s apartment. Police, who had been investigating Ravenell’s murder, arrived at approximately 2 a.m. on May 24, looking for the
When police officers went into the bedroom, the defendant and Beneche pretended to be asleep. The officers separated the pair for questioning; as discussed below, the defendant gave three different statements to police.
3. Evidence. The medical examiner who conducted Ravenell’s autopsy reported that she had a laceration above her right eye caused by blunt force trauma, as well as a broken tooth socket that was consistent with blunt force trauma. She had four other points of blunt force trauma to her head, as well as bruises inside her mouth adjacent to her jaw that were consistent with blunt force trauma to both sides of her mouth. At least some of the wounds on her head were consistent with a shod foot. She also had bleeding in both eyes, consistent with suffocation, and injuries to her lips consistent with something being held over her nose and mouth or placed over her head. He testified that while she was being suffocated, Ravenell would have straggled for air for twenty to thirty seconds, and death could have taken as long as six minutes. Her cause of death was asphyxia due to suffocation.
The medical examiner who conducted the child’s autopsy testified that he suffered several abrasions or bruises to his head, face, and under the surface of his upper and lower lips. The bone behind his left eye was fractured consistent with blunt force trauma to the eye. His brain was swollen, which was consistent with head trauma and indicated that he was still alive when he received his head and eye injuries. His eyes and larynx had injuries consistent with neck compression. The blunt force trauma to his head alone could have been fatal. He also was suffocated by having his mouth and nose compressed, and there were braises under his chin the size of fingertips. It would have taken him ninety seconds before he lost consciousness, and death would have occurred within five to six minutes. His cause of death was head trauma and suffocation.
4. The defendant’s statements. The defendant gave three statements to police. At the apartment, she was advised of her Miranda rights twice before she gave a statement in which she first denied any knowledge of the homicides but, when pressed, stated that Beneche had invited Ravenell to meet with him to discuss child support payments and that she had waited outside in a park that was close to the apartment (first statement).
Police transported the defendant to the Boston police headquarters, where she was again advised of her Miranda rights and interviewed. The first part of her story was essentially the same as the first statement, i.e., that she waited in a nearby park. She stated that Beneche picked her up at the park at about 4:30 a.m., some four to five hours after she had left the apartment. He told her that he had taken Ravenell and the child home and said that he cut his finger and needed to go to the hospital. According to this version, at approximately 3:30 p.m. the next day, Beneche told the defendant that he had smothered the victims and dumped them in the harbor by his house (second statement).
After a detective told her that he did not believe her, the defendant gave a third statement that was tape recorded. Her story was essentially the same until the point where Beneche
The defendant further stated that, when they returned to Beneche’s apartment, she took off her clothes and her boots. When police arrived at the apartment, Beneche went to the closet, grabbed a trash bag, and threw it out the window. She did not know it contained the child’s battered body until it was recovered by police.
5. The defense. The defendant called no witnesses at trial and she did not testify. The defense, in essence, was that Beneche was the murderer and that any evidence tying the defendant to the murders was consistent with her third statement that she helped Beneche after the murders. Through cross-examination of the Commonwealth’s witnesses, defense counsel also argued that the police investigation was faulty. Moreover, he argued that there was an innocent explanation for the hair and fingerprints that were recovered from the bag with the child’s body. He elicited from the Commonwealth’s crime scene analyst that, although it was not probable, it was possible that the defendant’s hair could have been in the trash bag because she lived in the apartment and that a hair in the bag possibly could have transferred to the child’s head. A witness also testified that the defendant handled trash while she lived with Beneche. Defense counsel asserted that it was in this way that the defendant’s fingerprints came to be on the outside of the bag.
A defendant is guilty as a joint venturer “if the Commonwealth has proved beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense.” Commonwealth v. Zanetti, 454 Mass. 449, 454, 468 (2009). See Commonwealth v. Semedo, 422 Mass. 716, 720-721 (1996) (in joint venture, defendant responsible for conduct of coventurers). The critical question with respect to whether the evidence was sufficient to warrant a finding that a defendant is guilty of murder in the first degree as a joint venturer on the theories of deliberate premeditation and extreme atrocity or cruelty is whether the defendant was present at the scene of the murder, with the knowledge that another intends to commit a crime or with intent to commit the crime and by agreement was willing and available to assist if necessary. Commonwealth v. Phillips, 452 Mass. 617, 633 (2008). Mere presence is insufficient to establish joint venture liability. Id. However, the Commonwealth is not required to prove exactly how a joint venturer participated in the murders, id. at 634, or which of the two did the actual
The defendant concedes, and we agree, that the Commonwealth proved that she had what she calls “motive” (intent) to kill the victims. Several people testified to her hatred of the victims and that she wanted them to die, and she wrote letters stating she was actively “plotting” Ravenell’s death and she would kill if Beneche asked her to. The defendant contends, however, that there was no evidence that she “was present for the killings, participated in any way or did anything to make them succeed.” In short, the defendant argues that the evidence may have supported a finding only that she was an accessory after the fact. To support this argument, the defendant points to evidence that she claims could not sustain a guilty verdict: the defendant’s blood was not found anywhere, and the presence of the defendant’s hair and fingerprints on the bag containing the child’s body is consistent only with concealing his body. She argues, alternatively, that even if this evidence established her presence at the killings, it is insufficient to prove she participated in the killings. We disagree.
The jury reasonably could have inferred that the defendant was present at the killings. The jury could have believed that when the defendant was seen by a neighbor helping Beneche bring the bag which, it was later established, had Ravenell’s body in it, down the stairs of the apartment building, it was approximately 2 a.m. It was reasonable for the jury to infer that if the defendant was helping Beneche at 2 a.m., she had been in the apartment at the time the victims were killed and not at the park as she claimed.
The jury also could have inferred that the defendant aided in the murders. Ravenell’s blood was on the inside of the defendant’s sweatshirt. At least some of the wounds to Ravenell’s head were consistent with a shod foot and Ravenell’s blood could not be excluded from the blood on the defendant’s boot.
There was sufficient evidence to find the defendant guilty of the murders as a joint venturer. Moreover, the manner in which the victims were killed, suffocated and beaten, supports the convictions of murder in the first degree by deliberate premeditation and by extreme atrocity or cruelty. See Commonwealth v. Semedo, supra (in joint venture, one is responsible for conduct of coventurers).
The defendant attempts to avoid the reasonable inferences the evidence permitted by arguing that findings of not guilty are required because where there is evidence that “tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof.” Berry v. Commonwealth, 393 Mass. 793, 796 (1985). The defendant’s reliance on this principle fails because it is predicated on the assumption that the jury were required to believe the defendant’s third statement to police. Credibility determinations are the province of the jury, and as recounted above, there was sufficient evidence to support the jury’s rejection of the defendant’s version of events. Commonwealth v. Lynch, 428 Mass. 617, 622 (1999), quoting Commonwealth v. Bennett, 424 Mass. 64, 68 (1997) (defendant’s interpretation of events is not only reasonable one; jury determine where truth lies). The judge did not err in denying the defendant’s motions for required findings of not guilty.
In the conversations, the defendant denied any knowledge of the murders until the police amved at Beneche’s apartment, and further denied that she was present when Beneche disposed of Ravenell’s body; that Beneche went with her to her mother’s home in Brockton; and that she had animosity toward Ravenell. She claimed that if a paternity test showed that Beneche was
For the first time on appeal, the defendant makes a somewhat convoluted argument that the introduction of the tape recordings violated her right to privacy and constituted an unreasonable search under the Fourth Amendment to the United States Constitution.
It is clear that the judge was cognizant of the potential prejudice the admission of the hearsay statements would present because he gave a limiting instruction. See note 7, supra. This was an appropriate way to deal with the hearsay issues. Concerning the defendant’s own statements, we conclude that there was no error in the admission of her statements where she denied animosity toward Ravenell and the child. The Commonwealth introduced the statements to show consciousness of guilt. In any event, the statements directly contradicted the trial testimony of several witnesses and were exculpatory. Concerning her other statements that contradicted her third statement to police, the statements were properly admitted as consciousness of guilt. Commonwealth v. Morales, 440 Mass. 536, 547 (2003), citing Commonwealth v.
3. Prosecutor’s closing. In her third statement to police, the defendant had the following exchange with a detective concerning her Timberland boots:
The detective: “And what did you do with the Timberland boots?”
The defendant: “I put them on the floor and then [Beneche] threw them in the closet.”
The detective: “Why did he do that?”
The defendant: “Because I had some of her blood on me from when he rolled [Ravenell] over.”
The detective: “Are you sure it was her blood?”
The defendant: “It was either hers or his. I just didn’t want to have blood on my Timberlands.”
In his closing argument, the prosecutor stated, “[Tjhe shoe . . . which clearly are women’s shoes, you will have them in the jury room, have blood all over the front, blood that [the defendant] admits is Ravenell’s.” There was no objection to this statement.
The defendant argues that the prosecutor misstated the evidence in violation of the defendant’s due process rights and her right to a fair trial. She argues that the error warrants reversal of her convictions because the statement did not involve a collateral issue, the judge did not issue a curative instruction (where there was no objection), and the comment would have made a difference in the jury’s consideration of a “close case.”
A “prosecutor is entitled to argue the evidence and fair infer
4. Jury instruction on joint venture. The defendant argues that the judge committed reversible error when he failed to instruct the jury that the defendant’s concealment of Ravenell’s body was insufficient to establish joint venture liability, particularly where the judge denied the defendant’s request for an instruction distinguishing accessory after the fact from joint venture.
When reviewing a judge’s charge to the jury, we “view[] the charge in its entirety since the adequacy of the instruction must be determined in light of their over-all impact on the jury.” Commonwealth v. Galford, 413 Mass. 364, 372 (1992), cert, denied, 506 U.S. 1065 (1993), quoting Commonwealth v. Sellon, 380 Mass. 220, 231-232 (1980). Here, the judge’s instruction on joint venture made it clear that the defendant could not be found guilty of murder if her only participation consisted of helping to dispose of Ravenell’s body.
Before he addressed joint venture, the judge instructed the jury that the defendant was charged in two indictments with murder in the first degree, defining murder as the “unlawful killing of a human being with malice” and that the Commonwealth had to prove each element of murder beyond a reasonable doubt. Thus it was clear that the Commonwealth had to prove that the defendant was involved in the killings, not merely covering up their deaths. The judge also stated, more than once, that the first determination
When he specifically addressed joint venture, the judge instructed the jury that the defendant “wish[ed] to bring about and [sought], . . by [her] actions to make [the murder] succeed.” He also stated, more than once, that presence at the scene of the crime was insufficient to support a joint venture conviction. He stated that the Commonwealth also had to prove that the defendant shared the intent to commit the crime and that the defendant “aided or assisted in the commission of the crime or stood by willingly and able to help with the crime if it became necessary” (emphasis added).
“Presence alone does not establish a joint venture. Even if a person knew about the intended crime in advance and took no steps to prevent it, our law does not allow for guilt by association. There must be proof that the defendant intentionally participated in committing that particular crime, not just that she was there or knew about it. If the defendant agreed with another to commit the crime, and did nothing more, that alone does not make her part of a joint venture. Some active participation in or furtherance of the criminal enterprise is also required . . . .”
See Commonwealth v. Sherry, 386 Mass. 682, 696-697 (1982)
Our conclusion that the instructions were clear on this point is supported by the questions the jurors sent to the judge during their deliberations. They asked the judge twice to define principal. They also asked (1) whether someone was a principal if they held a victim down while another person beat them and the beating caused the death; (2) whether a joint venturer who was physically present during the killing but did nothing to prevent actions she knows will cause death is a principal; (3) whether direct evidence is needed to prove someone was a principal or if circumstantial evidence was sufficient. The judge answered the first question by reinstructing the jury on the definition of principal. He answered the second question in the negative and the third that circumstantial evidence was sufficient.
We also reject the defendant’s argument that the judge abused his discretion in refusing, over the defendant’s objection, to instruct the jury distinguishing accessory after the fact from joint venture. The judge could have concluded that charging the jury on a crime with which the defendant was not charged could serve to mislead or confuse the jury. See Commonwealth v. Stokes, 440 Mass. 741, 750 (2004) (supplemental jury instructions within discretion of judge). See also Commonwealth v. Fuller, 421 Mass. 400, 411 (1995) (court will not require specific instruction where it could confuse jury). In addition, as the court stated in Commonwealth v. Therrien, 371 Mass. 203, 206 (1976) (“any references to the defendant’s theory of the case [i.e., accessory after the fact] must steer clear of the shoal of intimating that the jury must accept that theory in order to acquit [her]).”
5. Review under G. L. c. 278, § 33E. Although the defendant does not raise a claim seeking relief pursuant to G. L. c. 278, § 33E, we are obligated nonetheless to review the entire record. Having done so, we discern no basis to order a new trial or reduce the verdicts.
Judgments affirmed.
In this case, which was tried before we issued our opinion in Commonwealth v. Zanetti, 454 Mass. 449 (2009), the jury were asked whether the defendant was guilty as a principal or as a joint venturer.
At a separate trial, Jims Beneche also was convicted as a joint venturer of murder in the first degree of the two victims on the theories of deliberate premeditation and extreme atrocity or cruelty. We have affirmed his convictions. See Commonwealth v. Beneche, post 61 (2010).
We note that, as set forth in Commonwealth v. Beneche, supra at 64, at Beneche’s trial this amount was stated to be fifty-seven dollars per week.
The defendant commonly referred to Ravenell as “bitch.”
Both hairs were similar in color, length, and thickness to the defendant’s hair. A mitochondrial deoxyribonucleic acid (DNA) test on the hair found on the child’s head matched that of the defendant. This particular DNA sequence was “a rather rare profile.”
The friend testified at trial that she knew her conversations were being recorded. The defendant also admits knowledge that the conversations were being recorded.
The judge instructed the jury as follows:
“[Wje’re going to . . . hear portions of conversations that allegedly the defendant had with this witness. ... I know that [there is] a conversation where the witness says something . . . her boy friend . . . says something, and the defendant says something. That is the allegation. What I’m admitting for your consideration ... is the out-of-court statements allegedly made by the defendant.... [I]t’s a three-way conversation at least in part, the statements made by the other people ... are not being admitted for your consideration. Why are you hearing [them]? Because to understand what the defendant said, you have to have heard what the other people in the conversation said. . . . [T]here are various factual assertions made by these other parties to the conversation that are untrue, that are false or that are speculative. And counsel . . . informed me as to at least one statement having to do with fingerprints on a motor vehicle which is not true. ... I want you to be very clear that when you hear the conversation, what is being admitted ... is any statements that you believe the defendant. . . made in the . . . conversations .... But what the other person said, that is not being admitted for your consideration [but] only being played so that you can understand what it was that the defendant said.”
The defendant asserts an unreasonable search argument under her claim that her expectation of privacy was objectively reasonable. The defendant also acknowledges that in Matter of a Grand Jury Subpoena, 454 Mass. 685, 688-689 (2009), this court decided that a pretrial detainee’s conversations may be turned over to prosecutors. She states that she is raising the privacy issue on Federal constitutional grounds “to preserve it for presentation to the United States Supreme Court.”
On appeal, the defendant does not raise the other grounds on which she objected to the admission of the recording at trial.
In her request for jury instructions, the defendant requested that a consciousness of guilt instruction not be given, and the judge did not instruct the jury on consciousness of guilt. See Commonwealth v. Cruz, 416 Mass. 27, 29-30, 33 (1993) (defendant may request that judge not instruct on consciousness of guilt).
Where the defendant denied that she knew anything about the child’s death, the defendant does not make an argument, nor could she, that she merely participated in disposing of the child’s body.
By way of illustration, we set out an excerpt of the verdict slip:
“In the above-entitled case, we the jury say that the defendant is:
“1._NOT GUILTY
“2. GUILTY OF MURDER IN THE FIRST DEGREE
“Based on the theory:
“a._By Deliberate Premeditation with Malice Aforethought
“Acting as: _Principal
And/Or
Joint Venturer . . . .”
The judge explained assistance as follows: “Such assistance may be provided in any of several ways. It may take the form of participating with another person in the physical acts which make up the crime, or it may take the form of obtaining or encouraging the other person to commit the crime. Such assistance may also involve agreeing to stand by the scene of the crime, to act as a lookout, or to render aid or assistance in committing the crime or in escaping if such help becomes necessary.”
The language on which the defendant relies is as follows: “[I]f a defendant is present at the crime’s commission, but denies participation, or knows that a crime is planned but does not aid, assist or encourage it, the jury should be instructed that mere presence coupled with the failure to take affirmative steps to prevent the crime is insufficient, as is simple knowledge that a crime will be committed even if evidence of such knowledge is supplemented by evidence of subsequent concealment of the completed crime.” Commonwealth v. Ortiz, 424 Mass. 853, 859 (1997), citing Commonwealth v. Raposo, 413 Mass. 182, 185 (1992).
The defendant makes no argument that accessory after the fact is a lesser included offense of murder in the first degree acting as a joint venturer. See Schmuck v. United States, 489 U.S. 705, 715-716 & n.8 (1989) (setting forth elements test to determine whether entitled to lesser included offense charge). Instead, she relies on several Federal and out-of-State cases to argue that she was entitled to an accessory after the fact instruction as of right. We need not belabor this argument, because even if it is true that a defendant is entitled to a requested instruction on his theory of the defense, where a judge refuses to give such an instruction, it is reversible error only if the requested instruction was substantially correct; was not substantively covered in the jury charge;
Moreover, whether a defendant is even entitled to an instruction on a crime with which she was not charged is not settled law. See generally United States v. Rivera-Figueroa, 149 F.3d 1, 7 (1st Cir.), cert, denied sub nom. Rodriguez-Rodriguez v. United States, 525 U.S. 910 (1998). In the Rivera-Figueroa case, the court discussed Federal cases addressing a request for an accessory after the fact instruction where it was offered as a kind of defense. It referred to United States v. Brown, 33 F.3d 1002, 1003-1004 (8th Cir. 1994), and that court’s solution to instructing on accessory after the fact, as follows: “The Eighth Circuit’s approach appears to us liable to mislead the jury. A charge normally tells the jury that each element of the charged offense must be proved. To give the jury an additional set of elements for an uncharged crime that is not a lesser included offense, and of which the defendant seemingly cannot be convicted, seems to us a recipe for confusion. Where appropriate, the court can properly explain to the jury the defendant’s theory of the case is that he merely assisted in covering up the crime but did not participate in its commission.” United States v. Rivera-Figueroa, supra.