432 Mass. 746 | Mass. | 2000
After two mistrials, the defendant, Sean K. Ellis, was convicted of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder. He was also convicted of armed robbery. The defendant appeals from his convictions and from the denial of his motion for a new trial. On appeal, he claims that the trial judge erred in (1) declaring a mistrial after the second trial in violation of the defendant’s constitutional right against double jeopardy, (2) limiting examination of two critical Commonwealth witnesses in violation of his confrontational and due process rights, (3) improperly instructing the jury, and (4) denying the defendant’s motion for a new trial and motion to reconsider the denial of the defendant’s motion to suppress. We affirm the convictions. After reviewing the entire record pursuant to G. L. c. 278, § 33E, we decline to grant the defendant a new trial or to reduce the degree of guilt on the murder conviction.
We recount the evidence in the light most favorable to the Commonwealth, Commonwealth v. Gilbert, 423 Mass. 863, 864 (1996), reserving certain facts relevant to the defendant’s arguments discussed below. The murder victim, Detective John Mulligan of the Boston police department, was shot five times in the head in the early morning hours of September 26, 1993, while working a paid security detail in the parking lot of a Wal-greens drug store in the Roslindale section of Boston. At approximately 2:45 or 3 a.m. the defendant, Terry Patterson, and a woman arrived at the Walgreens. They traveled in Patterson’s brown automobile. The vehicle had tinted windows, “custom wheels,” and a “racing bra” on the front grill.
At about 3:05 a.m., Rosa Sanchez and her husband arrived at the Walgreens. She saw the victim asleep in the front seat of his
At approximately 3:45 a.m., a Walgreens employee approached the victim’s car and saw that the victim’s face was covered with blood. Another employee placed a 911 call that was recorded at 3:49 a.m. Paramedics soon arrived and determined that Mulligan had been shot several times in the face and had no vital signs. The victim’s sweater had been pulled up, his holster was empty, and his department issued handgun was missing. The victim was taken to a hospital where he was pronounced dead. An autopsy later determined that the five shots had been fired at close range and that any one of them could have been fatal.
On September 30, 1993, the police questioned the defendant. He told detectives that he had gone to the Walgreens at about 2:45 or 3 a.m. on September 26. He acknowledged entering the Walgreens and purchasing diapers, and that he had used a public telephone, but denied any involvement in the murder. Meanwhile, that same day, the defendant’s girl friend accompanied the defendant to an apartment where he retrieved a bag. On returning to his girl friend’s apartment, the defendant removed two guns from the bag. One of the guns was a black nine millimeter Clock handgun; the other was a silver .25 caliber Raven handgun. The next day (October 1, 1993), a friend of the defendant retrieved the guns from the girl friend’s apartment and hid them in a field. On October 7, 1993, the police found the guns. Subsequent investigation revealed that the nine millimeter Clock was the victim’s service weapon and the .25 caliber Raven handgun was the murder weapon.
The police also identified Patterson’s fingerprints on the driver’s side door of the victim’s truck. No fingerprints of the
On October 5, 1993, Rosa Sanchez reviewed a photographic array of possible suspects at the Boston homicide unit. The facts surrounding the photographic array are explored in more detail below, but we note now that Sanchez initially identified someone other than the defendant. After a short break, Sanchez was again shown the photographic array and identified the defendant’s photograph as the man she had seen crouching beside the victim’s car. On October 18, 1993, Sanchez chose the defendant from a police lineup and again identified him as the man she had seen crouching near the victim’s car.
On October 27, 1993, a Suffolk County grand jury returned indictments charging the defendant with murder, armed robbery, and possession of firearms without a license. The defendant filed a pretrial motion to suppress the photographic identification evidence. After a three-day evidentiary hearing, a Superior Court judge (the suppression judge) denied the motion. On September 14, 1995, after two mistrials (discussed below), a third jury convicted the defendant. On September 29, 1998, the defendant moved for a new trial and a reconsideration of the denial of his motion to suppress the identification. On March 4, 1999, the defendant’s motion was denied, and this appeal followed.
1. Double Jeopardy.
The defendant contends that his third trial violated both his constitutional and common-law double jeopardy rights. In particular he argues that, at the close of the second trial, the trial judge erred by repeating his original joint venture instruction — rather than tailoring a more direct answer — in response to a question submitted by the jury. Moreover, he claims such conduct constituted bad faith on the part of the trial judge because it was foreseeable that refusing to answer the jury’s question was likely to result in a deadlock. As a result, the defendant continues, the judge should not have declared a mistrial as a manifest necessity, and the third trial should have been barred on double jeopardy grounds. We do not agree.
Ellis’s first trial began on January 4, 1995. On January 12, prior to sending the jurors to deliberate, the judge instructed the jury on murder and on the theory of joint venture. On January 13 and again on January 17, the jury requested additional
On March 21, 1995, the second trial began before the same judge. On March 30, 1995, the judge instructed the jury on the elements of murder and on the theory of joint venture. The defendant objected to the judge’s refusal to offer a proposed jury instruction.
The defendant then moved to dismiss the indictments on the ground that a retrial would constitute double jeopardy under the United States Constitution. The motion was denied, as was the petition to a single justice of this court pursuant to G. L. c. 211, § 3.
Both the Fifth Amendment to the United States Constitution and the common law of Massachusetts prohibit the Commonwealth from placing a criminal defendant in double jeopardy. United States v. Dinitz, 424 U.S. 600, 606 (1976). Commonwealth v. Cassidy, 410 Mass. 174, 176 (1991). If the events at trial create a “manifest necessity” for a mistrial, a judge may properly declare one. United States v. Dinitz, supra at 606-607, quoting United States v. Jorn, 400 U.S. 470, 485 (1971) (plurality opinion). Accord Ariel A. v. Commonwealth, 420 Mass. 281, 289 n.8 (1995); Commonwealth v. Horrigan, 41 Mass. App. Ct. 337, 339-340 (1996). The “prototypical example” of a manifest necessity for a judge to declare a mistrial is a deadlocked jury. Commonwealth v. Andrews, 403 Mass. 441, 448-449 (1988).
Here, there was no double jeopardy for two reasons. First, the judge’s failure to give the joint venture instruction requested by the defendant did not constitute error. Rather, for the judge to repeat the original joint venture charge was a reasonable response to the jury’s request to “reiterate joint venture” (emphasis added). Moreover, had the judge changed his instruction to address the jury’s specific concerns, he ran the risk of giving an erroneous instmction or further confusing them. Com
Second, even if the judge erred, the defendant has not made the requisite showing of bad faith. Commonwealth v. Andrews, supra at 448. Absent evidence that the judge acted in bad faith, alleged judicial errors giving rise to a mistrial do not support a claim of double jeopardy. Id. at 448-449. United States v. Dinitz, supra at 611. The defendant’s claim that a more pointed instruction would have avoided the deadlock is speculative. Without more, these unsubstantiated allegations do not warrant a finding of bad faith.
2. The Defendant’s Right of Confrontation.
a. Impeachment of Evoney Chung. In March, 1995, between the defendant’s first and second trials, Evoney Chung, a witness for the Commonwealth, was charged in the Dorchester Division of the District Court with possession of a Class D substance with intent to distribute. Prior to the second trial, the Commonwealth filed a motion in limine to prevent the defendant from examining her at trial about the charge. The trial judge granted the motion and excluded testimony on that issue. In May, 1995, between the second and third trials, the Commonwealth dropped the charge against Chung. At the third trial, over the defendant’s objection, the judge again refused to allow the defendant to examine Chung about the charge. The defendant claims this impermissibly restricted his confrontational rights because he was not allowed to question Chung about her possible bias stemming from the dropped charge.
Chung testified at all three trials that, on September 26, she was at the Walgreens with her boy friend, Joseph Saunders; that she passed two black men as she left the store, and that she saw the same two men near the telephones as she and Saunders drove away. At all three trials she testified that she had not seen their faces. In these respects her testimony at the third trial was no different from her testimony at the two earlier trials. At issue is Chung’s testimony regarding the time she arrived at the Wal-greens which the defendant claims she changed as an act of repayment to the Commonwealth for dropping the charge against her.
Chung’s shift in testimony from “between 3:20, 3:30 or even 3:35” (first trial), “[rjoughly about 3:10” (second trial), and “after 3:00” arguably bolstered the Commonwealth’s case by lending support to the testimony of Rosa Sanchez. Sanchez testified that she saw the defendant as she entered Walgreens at approximately 3:05 a.m. and again, when she left the store a little after 3:20 a.m. Accordingly, Chung’s testimony at the first trial (an arrival time of 3:20 a.m.) meant that she might have seen the defendant in the parking lot after Sanchez left, while
On appeal, the defendant renews his claim that he should have been allowed to cross-examine Chung as to the dismissed charges. If admitted, counsel could have argued (and the jury could have inferred) that Chung’s change in testimony constituted a “favor” toward the Commonwealth for its dismissal of the charge. The question is, then, whether the defendant had a right to impeach Chung’s testimony for bias.
For the purpose of showing bias, a criminal defendant is “entitled, as of right, to reasonable cross-examination of a witness . . . particularly where that witness may have a motivation to seek favor with the government.” Commonwealth v. Haywood, 377 Mass. 755, 760 (1979), quoting Commonwealth v. Dougan, 377 Mass. 303, 310 (1979). “A defendant has the right to bring to the jury’s attention any ‘circumstance which may materially affect’ the testimony of an adverse witness which might lead the jury to find that the witness is under an ‘influence to prevaricate.’ ” Commonwealth v. Haywood, supra, quoting Commonwealth v. Marcellino, 271 Mass. 325, 327 (1930). Whether evidence demonstrates bias, however, falls within the discretion of the trial judge. Commonwealth v. LaVelle, 414 Mass. 146, 153 (1993). In the past, we have suggested that evidence of bias may be found where a witness has received a benefit from the Commonwealth, such as the dismissal of criminal charges. See Commonwealth v. Rodwell, 394 Mass. 694, 699-700 (1985), S.C., post 1016 (2000); Commonwealth v. Connor, 392 Mass. 838, 841 (1984) (receipt of benefits under Federal witness protection program “might have inspired gratitude”); Commonwealth v. Gauthier, 21 Mass. App. Ct. 585, 590 (1986) (considering whether prompt dismissal of criminal charge relevant to question of bias). It may have been error for the trial judge to preclude inquiry into the dismissed charge. However, even if the exclusion was improper, it did not amount to reversible error for several reasons.
First, contrary to the defendant’s characterization, Chung’s testimony about her arrival time was not “critical to the Commonwealth’s case.” The defendant admitted to using a public telephone outside the Walgreens at about 2:45 or 3 a.m. Moreover, Chung was one of four witnesses who saw a tall
We also note that Chung’s testimony at the third trial is consistent with her statements from the outset that she was extremely uncertain as to the timing of her arrival and departure from Walgreens. In her initial statement to the police, Chung acknowledged that she had not been paying attention to the time. In her testimony at each of the three trials, her estimates were imprecise, and most were qualified by words such as “guessing,” “[rjoughly,” and “[sjomewhere around there.” The prosecutor alluded to this in her argument at the close of the' third trial, stating that, when taken as a whole, the testimony of the witnesses “fit together, [but] not perfectly. Because if they fit together perfectly, wouldn’t you scratch your heads and say: ‘something is amiss here?’ ” A jury could rationally conclude that the slight variations in Chung’s testimony are attributable to the imperfect nature of human recollection, rather than the product of undisclosed bias.
Finally, through vigorous cross-examination, the defendant exposed each of the variations in Chung’s statements throughout the course of the police investigation and subsequent trials. In so doing, the defendant elicited information from which the jury could conclude that Chung’s recollection of time was unreliable. Given the cumulative nature of Chung’s testimony, the nature of the change in her testimony, and the defendant’s opportunity to challenge her credibility, the judge’s resolution of this matter does not mandate a new trial.
b. Impeachment of Sanchez. Rosa Sanchez was a key witness for the Commonwealth. At the third trial she testified that she was at the Walgreens at 3 a.m. and, on entering the store, saw a
On October 5, 1993, Detective Acerra (who was then living with Sanchez’s aunt) and Detective Robinson drove Sanchez and her husband to the police department. Sanchez said she was “scared” at the time. Detective Ross testified that Sanchez appeared “frightened, nervous, scared, upset.” At the police station, Sanchez was separated from her husband and escorted to a room where Detective Ross showed her two photographic arrays of eight photographs each; one containing a photograph of the defendant (defendant array) and one containing a photograph of Patterson (Patterson’s array). Each array consisted of black males in the vicinity of the defendant’s age, with similar skin tone and hairstyle. Detective Ross first showed Sanchez the defendant’s array. After viewing the array for about five minutes, Sanchez became very upset, started shaking, and then pointed to a photograph of a man, Alfred Glover, and said, “That’s the man that’s been following me, the police are looking for him, I’ve never seen his picture before.” On seeing, this photograph of her alleged stalker, Sanchez began to cry. Detective Ross, “totally confused” by her selection and the related stalker comment, covered up Glover’s photograph and asked her to make another selection. At this point, he testified, Sanchez was “very anxious” and “appeared to be very frightened.” Sanchez again reviewed the photographic array for a few minutes, pointed to a photograph of an individual other than the defendant and said, “I think that may be the person.”
After the misidentification, Sanchez was reunited with her
In January, 1995, the defendant submitted an offer of proof intending to show that Sanchez’s earlier descriptions of her alleged stalker differed dramatically from the picture of Glover contained in the photographic array. Specifically, the defendant sought to present evidence contained in contemporaneous police reports (dated April and July, 1992, respectively), in which Sanchez described the stalker as being approximately six feet tall and slim, with a scar on his right hand. An affidavit from defense counsel indicated that Glover was five feet four inches, heavy set, and had no scar on either hand. This offer of proof was renewed prior to the third trial. At the third trial, both photographic arrays were admitted in evidence and Sanchez’s identifications were the subject of extensive cross-examination. The defendant discredited Sanchez’s testimony by eliciting the following: Sanchez was not “paying much attention” when she left the Walgreens, Detective Acerra was “a good friend” of Sanchez’s mother, and that Sanchez “point[ed] out a different person that was stalking [her]” at the suppression hearing. Defense counsel invited the jury to compare the defendant’s photograph with the one that Sanchez initially had selected (“the wrong guy”). Over his objection, the defendant was not permitted to inquire further about the stalker or any related description of his appearance.
On appeal, the defendant contends that he should have been permitted (1) to have Glover appear before the jury and (2) to
For the purposes of testing a witness’s accuracy, veracity, and credibility, it is settled that “the scope of cross-examination . . . rests largely in the sound discretion of the judge, not subject to revision unless prejudice is shown to a party by reason of too narrow restriction or too great breadth of inquiry.” Commonwealth v. Jackson, 419 Mass. 716, 726 (1995), quoting Commonwealth v. Repoza, 382 Mass. 119, 125 (1980), S.C., 400 Mass. 516, cert. denied, 484 U.S. 935 (1987). Commonwealth v. Carrion, 407 Mass. 263, 273 (1990) (extent of impeachment of witness’s credibility and competency well within judge’s discretion).
Where there is a risk of confusing the jury, the judge must weigh the probative value of any proffered evidence against such danger. Commonwealth v. Rosa, 422 Mass. 18, 25 (1996). In these circumstances, the judge did not abuse his discretion: permitting the jury to compare Glover’s actual appearance with Sanchez’s description had limited probative value. When she examined the photographic array, Sanchez was asked to make an identification from a photograph depicting the defendant’s head and facial features from among photographs of other black male faces. Allowing the jury to contrast Sanchez’s recollection of her stalker’s height and nonfacial scars — characteristics not observable in any of the photographs in the array — would not help the jury in their task. Moreover, we give broad discretion to trial judges who have valid concerns about trying a case within a case. Commonwealth v. Franklin, 366 Mass. 284, 289
In reviewing the judge’s decision regarding Sanchez’s prior descriptions of the stalker, we consider, in turn, the defendant’s theories of admissibility. His first theory addresses why Sanchez initially identified a photograph other than the defendant’s. Sanchez testified that she deliberately picked the wrong photograph because she “didn’t want to get involved” and because she was “scared.” The Commonwealth presented other evidence that Sanchez was “petrified [and] afraid that if she had picked him out, he was going to come back and get her.” And Detective Ross attributed her misidentification to her agitated state after having seen a photograph of her stalker. The defendant counters that he should have been permitted to demonstrate that Sanchez’s misidentification was neither deliberate nor motivated by agitation; rather, he should have been able to show the jury that she simply could not recall whom she had seen on the night of the murder. Thus, the defendant argues, that the descriptions of her stalker she originally gave to the police are admissible to show that any explanations for Sanchez’s failure to select the defendant were after-the-fact attempts to bolster the credibility of the Commonwealth’s sole eyewitness. His argument is not persuasive.
At the outset, we note that Sanchez was subject to rigorous cross-examination. Defense counsel established that Sanchez had identified two different photographs as her stalker (one at the police station, another at the suppression hearing). During closing arguments, the defendant focused the jury on Sanchez’s credibility, suggesting that her “prior inconsistent statements are evidence ... of lack of believability” and reminding them of the “bizarre thing about the stalker.” He asked the jury, “Is this a person that you are going to rely on in the most serious case that the Commonwealth can have? . . . Would you rely on this teenager?” It is clear that the defendant had ample opportunity to impeach Sanchez.
Second, even if the defendant had refuted the stalker explanation, a jury could have found the Commonwealth’s other explanation for Sanchez’s initial misidentification, i.e., Sanchez’s fear of becoming involved in a murder investigation, entirely reasonable. A combination of factors including her
Alternatively, the defendant argues that inquiry into the conditions under which Sanchez saw and described her stalker were relevant to demonstrate the witness’s flawed capacity to perceive and remember. “While defendants are entitled to reasonable latitude on cross-examination, the scope of such cross-examination, including the extent of impeachment of a witness for credibility and competency, are well within the judge’s sound discretion.” Commonwealth v. Carrion, 407 Mass. 263, 273 (1990), and cases cited. As his effective cross-examination bears out, the defendant was provided “reasonable latitude” to challenge Sanchez’s ability to perceive and remember in the circumstances of the case, and the judge acted within his discretion in limiting the impeachment of Sanchez. Id.
The defendant’s reliance on Commonwealth v. Franklin, 366 Mass. 284 (1974), is misplaced. In that case, the victims initially identified two of their assailants but, on the eve of trial, acknowledged they were mistaken in regard to one of the identifications. Id. at 286-287. Because evidence of the mistaken identification was excluded, this court reversed the convictions and granted a new trial. Id. at 290. In reaching its conclusion, the majority cautioned, “[w]e have no intention here of setting new and restrictive perimeters to the trial judge’s usual discretionary control over the limits of cross-examination. Rather, we have concluded that the special circumstances of [these cases] required greater latitude than the judge permitted” (emphasis added). Id. at 290-291. Those “special circumstances” included the fact that (a) the misidentification arose from the exact same incident as the one being prosecuted and (b) evidence of the misidentification was excluded entirely. Id.
3. Specific Unanimity Instructions.
The defendant argues that the jury should have been required to specify whether they convicted the defendant as a principal or as a joint venturer. We previously have not indorsed such a requirement and decline to do so here.
“It is beyond dispute that the jury verdict in a criminal trial . . . must be unanimous.” Commonwealth v. Berry, 420 Mass. 95, 111 (1995), quoting Commonwealth v. Hebert, 379 Mass. 752, 754 (1980). Where the defendant is charged with murder in the first degree the required unanimity extends only to the theory of culpability. Commonwealth v. Berry, supra at 112. As we have made clear, the jury are not required to conclude unanimously that the defendant was either the principal or the joint venturer, so long as sufficient evidence exists to support either role. See Commonwealth v. Pike, 431 Mass. 212, 214-215 (2000); Commonwealth v. Souza, 428 Mass. 478, 488-489 (1998); Commonwealth v. Nolan, 427 Mass. 541, 544 (1998); Commonwealth v. Brooks, 422 Mass. 574, 576-577 (1996). Furthermore, direct evidence of who actually shot the victim is not required where, as here, there is sufficient evidence that one of the assailants (the defendant or Patterson) committed the fatal act. Commonwealth v. Pike, supra at 215. Commonwealth v. Chipman, 418 Mass. 262, 268 (1994). Commonwealth v. Cohen, 412 Mass. 375, 381 (1992). In proving the defendant’s guilt beyond a reasonable doubt, it is not necessary for the Commonwealth to exclude the possibility that Patterson fired the shots. Commonwealth v. Cohen, supra at 380-381.
The evidence here — the presence of both the defendant and Patterson at the crime scene, the eyewitness who observed the defendant crouching next to the victim’s car, Patterson’s fingerprints on the victim’s car and the defendant’s possession of the murder weapon and the victim’s service weapon —justified the submission of the case to the jury on the theories that the defendant was either the principal or a joint venturer in the killing. There was no error, let alone a substantial miscarriage
4. Sufficiency of the Evidence.
The defendant claims that a finding of joint venture felony-murder was not warranted absent direct evidence that the defendant knew his codefendant was armed. To be convicted on a theory of joint venture for a crime that has possession of a weapon has one of its elements, the joint venturer must be shown to have had knowledge that the principal perpetrator had a weapon.' Commonwealth v. Fickett, 403 Mass. 194, 196-197 (1988). The defendant moved for required findings of not guilty thereby preserving the issue for appellate review. Id. at 197. In reviewing “a judge’s denial of a defendant’s motion for a required finding of not guilty, we inquire whether the evidence, considered in the light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact of the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Coonan, 428 Mass. 823, 828 (1999), and cases cited. The absence of direct evidence in the record is not determinative, because knowledge that a joint venturer is armed may be inferred from circumstantial evidence. Commonwealth v. Kilburn, 426 Mass. 31, 35 n.7 (1997), and cases cited. Where the evidence is circumstantial, “it is not essential that the inferences drawn should be the only necessary inferences . . . . It is enough that [the inferences] be reasonable and possible.” Commonwealth v. Pike, 430 Mass. 317, 321 (1999), quoting Commonwealth v. Martino, 412 Mass. 267, 272 (1992).
Employing this standard, we conclude that there was sufficient evidence from which a jury could infer that the defendant was aware that his codefendant was armed. Such an inference is bolstered by the evidence that the defendant retained possession of both the murder weapon and the officer’s weapon. Commonwealth v. Colon-Cruz, 408 Mass. 533, 547 (1990) (where, among other evidence, defendant apprehended in possession of four weapons, jury could infer defendant knew codefendants were armed). Furthermore, there was evidence that at least one goal of the joint venture was to steal the gun of the victim, a police officer. We agree with the Commonwealth that the defendant would not have engaged in this extremely dangerous
5. Extreme Atrocity and Cruelty. Cunneen Factors.
The defendant contends that the judge’s instruction on extreme atrocity or cruelty was unconstitutionally broad because he invited the jury to consider factors beyond those delineated in Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983), in violation of our rule in Commonwealth v. Hunter, 416 Mass. 831, 836-837 (1994), S.C., 427 Mass. 651 (1998), where we said that the jury’s consideration must be limited to those factors.
Although our prior decisions make it unnecessary, we briefly respond to the defendant’s claim. The judge instructed the jury that the relevant factors “include, but are not limited to” the Cunneen factors and that “extreme atrocity or cruelty is not limited to cases with such evidence.” He added that “[t]he jury must determine that one or more of such factors has been proven beyond a reasonable doubt before the defendant may be convicted of murder in the first degree on a theory of extreme atrocity or cruelty.” Although the defendant objected to the “giving of any instruction on the theory of extreme atrocity or cruelty,” he did not alert the judge to any misstatements regarding the Cunneen factors. The defendant therefore failed to preserve this issue.
6. Denial of the Defendant’s Motion for a New Trial.
The defendant argues that the judge erred in denying his motion for a new trial and his motion for reconsideration of his motion to suppress identification.
In March and October of 1997, indictments were returned by a Federal grand jury against Acerra and Robinson alleging, inter alia, the submission of false search warrant applications and affidavits and the illegal seizure of property and funds pursuant to those warrants.
“Where a defendant alleges that witness identifications arise from unnecessarily suggestive circumstances, the ‘defendant has the burden to prove, by a preponderance of the evidence, that the witness was subjected by the State to a pretrial confrontation . . . “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to deny the defendant due process of law.’ ” Commonwealth v. Odware, 429 Mass. 231, 235 (1999), quoting Commonwealth v. Otsuki, 411 Mass. 218, 232 (1991). Whether an identification rises to the level of “unnecessarily suggestive,” is to be gleaned from “the totality of the circumstances attending the confrontation.” Commonwealth v. Odware, supra, quoting Commonwealth v. Otsuki, supra. On the record before us, the defendant has not met his burden. Given the absence of evidence, by affidavit or otherwise, suggesting that the subject detectives procured false evidence in connection with the investigation of this defendant, we cannot say that the witness was subjected to an unnecessarily suggestive confrontation. Accordingly, it was not erroneous for the judge to deny the motion. Commonwealth v. Campiti, 41 Mass. App. Ct. 43, 62-66 (1996) (no error to deny motion for new trial based on evidence of unrelated police misconduct). See Commonwealth v. Ramirez, 416 Mass. 41, 47 (1993), quoting Commonwealth v. Toney, 385 Mass. 575, 581 (1982) (“[i]t is well established that ‘[njewly discovered evidence that tends merely to impeach the credibility of a witness will not ordinarily be the basis of a new trial’ ”).
7. Section 33E Review.
Pursuant to our duties under G. L. c. 278, § 33E, we have reviewed the entire record. We find nothing that compels
Judgments affirmed.
Order denying motion for a new trial affirmed.
The defendant asked the judge to give the following response: “It is not enough to find the defendant Sean Ellis guilty of murder or armed robbery as a joint venturer to conclude that he assisted the principal or principals in some way after those crimes had been committed, unless you find, beyond a reasonable doubt, that he was present at the time and place the offenses were committed, and that he intentionally assisted or stood ready to assist the perpetrator in committing those crimes while sharing with the other person or persons the mental state or intent required to convict the principal of those crimes.”
The defendant’s proposed jury instruction emphasized that the Commonwealth “must prove more than mere association with the perpetrator of the crime either before the commission of the crime or after the commission of the crime” and that “[the jury] may consider the defendant’s mental condition on the night in question, including any intoxication by voluntary consumption of alcohol, in determining whether or not the Commonwealth has proved beyond a reasonable doubt that the defendant intentionally assisted others in committing the crime and that he shared the intent required for committing the crime.”
The defendant asked the judge to give the response he had requested at the first trial. See note 1, supra.
The other three were Rosa Sanchez, Victor Brown, and Joseph Saunders.
The other two were Rosa Sanchez and Joseph Saunders.
Her husband had pointed to the same photograph during his photographic identification session on October 3, 1993.
When asked why Sanchez’s identification of the stalker was not signed, Detective Ross stated, “It was not an identification relative to this investigation.” Similarly, her other identification was not signed because Sanchez’s qualification, “I think that may be the person” did not constitute a positive identification.
In September, 1994, the defendant moved to suppress Sanchez’s photographic identification. The suppression judge denied the motion.
The factors delineated in Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983), are: “indifference to or taking pleasure in the victim’s suffering, consciousness and degree of suffering of the victim, extent of physical injuries, number of blows, manner and force with which delivered, instrument employed, and disproportion between the means needed to cause death and those employed.”
That the victim may have been sleeping, and thus might not have endured any conscious suffering, does not affect our conclusion. Commonwealth v. Podlaski, 377 Mass. 339, 348 (1979) (“suffering has never been an indispensable element of the crime of murder with extreme atrocity or cruelty”).
The judge decided the defendant’s motions without an evidentiary hearing.
Brazil was neither charged nor convicted of wrongdoing but, after being granted immunity, admitted his involvement in the wrongdoing and testified before the Federal grand jury and at a trial of a codefendant of Robinson and Acerra.