Commonwealth v. FernandesCommonwealth v. Fernandes
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us
Homicide.
Indictments found and returned in the Superior Court Department on May 6, 2011.
The cases were tried before D. Lloyd Macdonald, J., and motions for postconviction relief, filed on March 6, 2020, were heard by Raffi N. Yessayan, J.
James W. Rosseel for the defendant.
Mary Lee, Assistant District Attorney, for the Commonwealth.
GEORGES, J. The defendant, Jose Fernandes, was tried before a Bristol County jury and convicted of murder in the first degree for the May 17, 2009, shooting death of Troy Pina (victim).1 The Commonwealth proceeded against the defendant on theories of
On appeal from the verdicts and from the denials of his motions for a new trial, for an evidentiary hearing, and for further discovery, the defendant claims a number of errors, including that the secret recordings were not authorized by law and should not have been admitted in evidence, that Cruz should not have been permitted to testify to his understanding of certain slang used by the defendant, and that the defendant was prejudiced by the failure of the Commonwealth to turn over certain discovery.
We address these contentions and others infra, and for the reasons that follow, we affirm the denial of the motion for a new trial, the denial of the motion for an evidentiary hearing, and the denial of the motion for further discovery; we affirm the defendant‘s convictions on the charge of murder in the first degree, the three charges of armed assault with intent to murder, and the
Background. Viewing the evidence in the light most favorable to the Commonwealth, we recite the essential facts that the jury could have found, reserving certain details for our discussion of the issues. The defendant and Brian Lacombe were drug dealers, and both were part of “Supreme Team,”4 an association that also included Thomas Jeffreys, Marcus Mitchell, Joey Gomes, and Cruz.
In May 2008, a feud began between Supreme Team and an individual named Francisco Monteiro.5 As one way of obtaining money, Mitchell and other members of Supreme Team managed or promoted dancers at strip clubs. Monteiro did the same. At that time, Mitchell and Monteiro both were in South Carolina with dancers they promoted, during an event known as “Bike Week.” A dancer associated with Mitchell tried to convince certain dancers associated with Monteiro to work with Mitchell instead, and Monteiro became upset (South Carolina dispute).
The victim, a friend of Monteiro, was involved in this dispute as well.
By early 2009, the feud escalated into violence when Mitchell grabbed the victim and pushed him against a vending machine. After a verbal confrontation with Monteiro around the same time, Mitchell asked Jeffreys for a gun, аnd he obtained a .40 caliber gun from Jeffreys‘s girlfriend. The jury could have inferred that the defendant was the source of the gun given to Mitchell, as the defendant was acquiring guns from drug customers and supplying them to the team.
One or two months later, Monteiro “sucker punched” Jeffreys. Jeffreys was angry and vowed to shoot Monteiro. After that, Jeffreys, Mitchell, Cruz, Lacombe, and the defendant met at a pizza parlor. Jeffreys told everyone that “it was on” between Supreme Team, on the one hand, and Monteiro and the victim, on the other. From that point onward, the members of Supreme Team traveled together and carried guns. The defendant typically traveled
On May 16 and into the early morning hours of May 17, 2009, the defendant was traveling with Lacombe in one vehicle, and Jeffreys was traveling with Mitchell in another. The defendant carried a .45 caliber gun, and the three others carried .40 caliber guns. The defendant later told Cruz that they were “patrolling, hunting.” Supreme Team encountered Monteiro at around midnight in the Whittenton area of Taunton, and Jeffreys fired three shots at him. The defendant and Lacombe were nearby but drove away after encountering a police vehicle.
Later that night, Jeffreys and the defendant positioned their vehicles to intercept Monteiro‘s vehicle on the highway. At about 1:40 A.M., Jeffreys and Mitchell shot at Monteiro‘s vehicle with .40 caliber guns from Jeffreys‘s black Infiniti. The defendant shot at Monteiro‘s vehicle with a .45 caliber gun from the vehicle that he was driving. At least three guns were used in the shooting, two .40 caliber guns and a .45 caliber gun. The victim, who was riding in the front passenger‘s seat of the vehicle driven by Monteiro, was killed.
In the hours leading up to and following the shooting, the defendant maintained cell phone contact with Jeffreys. After the shooting, Jeffreys parked the Infiniti where it was not visible from the street, and later that morning, the defendant went to the same location to pick up the Infiniti. At that time, a witness heard the defendant talking about something happening on the highway. Later examination of the Infiniti revealed a hasty repair to cover up what the jury could have inferred was a hole from a bullet that passed from inside to outside the vehicle. The same day, the defendant and Lacombe went to a remote area with a box and a shovel. When they returned, they did not have the box. Asked what they were doing, Lacombe joked that they were burying a goldfish or a cat, and the defendant and Lacombе both laughed. About two weeks later, the defendant also traveled with Jeffreys and his brother, John Jeffreys,6 when they went to intimidate a grand jury witness into providing false testimony regarding the shooting.
On August 23, 2010, the defendant was arrested for conspiracy to violate the drug laws. While the defendant was held on bail, in
In March 2013, a Bristol County jury found the defendant guilty of one count of murder in the first degree, three counts of armed assault with intent to murder, three counts of assault by means of a dangerous weapon, and one count of unlawful possession of a firearm.7 In May 2019, after a series of extensions and stays of appeal, the defendant filed a motion for postconviction discovery in this court, which motion was remanded to the Superior Court. A Superior Court judge allowed the motion and ordered production of the Commonwealth‘s file related to the grand jury investigation, but the judge subsequently revised the order to exclude materials subject to work product protections.
In March 2020, the defendant filed with this court his motions for a new trial, for an evidentiary hearing, and for further discovery, which were also remanded to the Superior Court. A Superior Court judge (motion judge) denied all three motions, and the appeal from these denials was consolidated with the appeal from the defendant‘s convictions.
Discussion. 1. Standard of review. We review the defendant‘s consolidated appeal pursuant to
2. Admissibility of secret recordings. The defendant‘s primary argument on appeal is that the jury should not have heard the secret recordings of the defendant‘s confessions to Cruz. The question then is whether the trial judge properly denied the defendant‘s motion in limine to exclude these recordings. We review the instant issue de novo because the defendant disputes only points of law, see Commonwealth v. Mitchell, 468 Mass. 417, 421 (2014), specifically, (a) whether the evidence before the trial judge established a nexus to organized crime for purposes of the Massachusetts wiretap statute‘s “one-party consent exception,”
a. Compliance with
“[A] secret recording of a conversation is not an ‘interception’ and is therefore lawfully recorded without a warrant where (1) at least one party to the conversation gives prior consent to the recording of the conversation; (2) the party giving consent is a law enforcement officer or a person who has authorized a law enforcement officer to record the conversation; (3) the rеcording is made ‘in the course of an investigation’ of at least one of the designated offenses listed in § 99 B 7; and (4) the designated offense is ‘in connection with organized crime[,’ which] ‘consists of a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services.‘”
Mitchell, 468 Mass. at 422, 425, quoting
The record in this case, in particular, the November 17, 2010, affidavit of State police Trooper Daniel M. Giossi (Giossi affidavit), supports the same findings as to these material facts.9 On the
Giossi affidavit also described the efforts of Supreme Team to cover up the killing, including a conspiracy to murder a witness.10 In sum, the affidavit sufficed to establish the same conditions considered by this court in Mitchell, and so it sufficiently established a nexus to organized crime. See Commonwealth v. Long, 454 Mass. 542, 557 (2009), S.C., 476 Mass. 526 (2017) (“there must, at the very least, be an organized plan from which one reasonably may infer the existence of an ongoing criminal operation“).
The defendant argues that Mitchell is inapposite because there, the court had “no evidence . . . regarding the origins of thе dispute between Monteiro‘s group and Team Supreme.” Mitchell, 468 Mass. at 427. Here, by contrast, the defendant contends that additional information shows the origin of the conflict to be the South Carolina dispute, which he argues is unconnected to organized crime. See Commonwealth v. Lykus, 406 Mass. 135, 142 n.10 (1989), citing Commonwealth v. Jarabek, 384 Mass. 293, 296 (1981). But the defendant can only disconnect the dispute from organized crime by isolating its original source from its later development, that is, from the important
context laid out in the Giossi affidavit.11 In Mitchell, 468 Mass. at 427, this court cautioned against such a limited view as unrealistic:
“[I]t can be inferred that Monteiro and his associates posed at least a physical, and possibly economic, threat to Team Supreme‘s members and interests, and that the feud between the groups was more than personal. Even if the feud were purely personal, an illegal drug distribution business may see the perception of weakness as potentially fatal to an enterprise that wishes to protect its turf against competitors. In the perverse world of a street drug organization, violence in response to perceived threats is often viewed as necessary to maintain its customer base, to intimidate or weaken rivals, to protect its reputation, and to deter future threats from emerging. . . . Given the history of violence between Monteiro and members of Team Supreme, it is reasonable to infer that the shooting at issue here was undertaken at
least in part in order to further Team Supreme‘s territorial or reputational interests.”
This dispute did not run straight from an argument over dancers to the victim‘s murder but rather encompassed two other attacks by Monteiro on members of Supreme Team, including Monteiro‘s punching Jeffreys and shooting Cruz. Both episodes were described in the Giossi affidavit.
In sum, regardless of its origin, this was an ongoing dispute between Monteiro and members of a highly organized drug enterprise, and when the dispute escalated into violence, that enterprise organized its associates to commit and cover up a murder. Contrary to the defendant‘s claim, the fact that the dispute arose over one gang member‘s business and influence promoting dancers supports rather than undermines the nexus to organized crime. See Long, 454 Mass. at 556. Because there was a nexus between the murder and organized crime at the time of the recordings, the recordings did not violate
b. Constitutionality of secret recordings. More broadly, the defendant contends that by arresting him and allowing him to be questioned secretly by a government informant, the Commonwealth violated his right to be free from unreasonable searches and seizures, his right against self-incrimination, and his right to counsel. We review constitutional claims de novo, see Commonwealth v. Martinez, 487 Mass. 265, 267 (2021), and conclude that there is no merit to these arguments.
As discussed supra, a warrant was not required by art. 14 of the Massachusetts Declaration of Rights or
The defendant urges us to hold that the scope of the right to counsel under art. 12 of the Massachusetts Declaration of Rights is broader and applies where separate charges are nevertheless “inextricably intertwined.” See Commonwealth v. Rainwater, 425 Mass. 540, 547-548 (1997), cert. denied, 522 U.S. 1095 (1998), abrogated by Texas v. Cobb, 532 U.S. 162, 162, 168 & n.1 (2001). This court previously recognized this doctrine as an “extremely
Here, the two sets of charges lacked this identity. The defendant was held pursuant to fourteen charges of conspiracy to violate the drug laws,
As part of his argument that the Commonwealth impermissibly used the drug charges to obtain information about the murder, the defendant also suggests that the Commonwealth misused the grand jury for discovery purposes. But the disputed recordings were not obtained pursuant to the authority of the grand jury, and so the cases cited by the defendant are inapposite. See Commonwealth v. Hall, 485 Mass. 145, 166 (2020) (“The defendant does not illustrate how this case is similar to Cote . . .“); Commonwealth v. Cote, 407 Mass. 827, 832 (1990); Commonwealth v. Liebman, 379 Mass. 671, 676-677 (1980), S.C., 388 Mass. 483 (1983).
Where language is “ambiguous or consists of expressions not in common use” but has “a known meaning among certain persons,” that meaning “may be explained by those who know.” Commonwealth v. Morgan, 107 Mass. 199, 201-202 (1871). And this rule applies to slang. See id. at 200, 201-202. See also Commonwealth v. Douglas, 354 Mass. 212, 218 n.2 (1968), cert. denied, 394 U.S. 960 (1969). Recent case law emphasizes the usefulness of expert testimony to interpret slang, jargon, or other coded language, but it acknowledges that context might be provided by other testimony as well. See Commonwealth v. Henley, 488 Mass. 95, 128 (2021); Commonwealth v. Rosa, 468 Mass. 231, 240 & n.14 (2014). Morgan, supra, implies that the relevance of such testimony is conditional on establishing that the witness has a basis for knowing the meaning. See Mass. G. Evid. § 104(b) (2023).
A witness‘s interpretation of evidence based on personal knowledge may also be considered lay opinion testimony “when the witness possesses sufficiently relevant familiarity . . . that the jury cannot also possess” (citation omitted). Commonwealth v. Vacher, 469 Mass. 425, 441 (2014). Lay opinion testimony is admissible where it is “(a) rationally based on the witness‘s perception; (b) helpful to a clear understanding of the witness‘s testimony or in determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of [§] 702.” Mass. G. Evid. § 701. See Commonwealth v. Grier, 490 Mass. 455, 476 (2022); Commonwealth v. Mason, 485 Mass. 520, 538 (2020). Where a witness is giving an opinion on the meaning of slang terms, in order for his testimony to be “rationally based” and “helpful”
to the jury, it must be established that the witness has sufficient familiarity with the slang terminology. And where the witness testifies to “his own personal understanding of what [the defendant] meant, developed in the context of face-to-face conversation,” it is “not based on scientific, technical, or other specialized knowledge within the scope of [
Interpreting the nearly identical language of
Here, the testimony at issue is Cruz‘s interpretations of statements made by the defendant. The evidence at trial established that Cruz had been a drug dealer; that this was his “world“; that he had prior convictions of distribution of a class B substance; that he was twenty-seven years old at the time of trial and had known and become friendly with the defendant since Cruz was twelve or thirteen years old; that he had known Jeffreys, Mitchell, and Lacombe since at least 2008 and had been friendly with them; and most importantly, that Cruz had been part of Supreme Team. Not only had Cruz been a part of this team, but he also had been involved directly in the escalating feud between Supreme Team and Monteiro. In sum, the testimony sufficed to establish that Cruz would have knowledge of the slang terms used by this specific criminal enterprise.
The conversations between the defendant and Cruz were permeated with slang and code words. Such coded language was used to evade prosecution, as the defendant criticized Cruz more than once for “dropping bombs,” that is, for using real names during conversations. The slang interpreted by Cruz ranged from highly specific to more general terms. A few examples will suffice. Cruz informed the jury that the members of Supreme Team referred to guns in code as “jackets,” that “wrapped” meant to have a gun, and that “pop” meant to shoot. He testified about drug terminology, stating that “custies” were drug customers and that “the works” referred to drugs. Most importantly, Cruz testified
Because the evidence showed that Cruz would have knowledge of such terms, his testimony explaining the slang terms used by the defendant was admissible. Moreover, the risk of prejudice was minimized. The vigorous cross-examination of Cruz, described infra, placed the jury well on notice that they might question the credibility of Cruz‘s testimony, including his interpretations of the defendant‘s statements. Cf. Mason, 485 Mass. at 539. Indeed, the jury did not convict the defendant of conspiracy to murder Kathleen Soule, a charge that depended in no small part upon Cruz‘s explanations of conversations with the defendant. The trial judge also gave multiple contemporaneous instructions that except for inquiry about slang terms, the evidence at issue was the recorded statеments themselves and only insofar as they were made or adopted by the defendant. And defense counsel used the slang testimony to support the defendant‘s theory of the case. Cross-examining Cruz, defense counsel specifically elicited testimony about the slang terms used by the defendant. In closing argument, he argued that the defendant‘s use of slang showed that he was merely a “wannabe” who liked to talk big. In sum, Cruz‘s testimony explaining the defendant‘s slang was admissible because the foundation for his knowledge was sufficiently established in the record, the statements he interpreted were ambiguous, and the risk of prejudice was minimized.
4. Bad act evidence. The defendant further challenges evidence of a series of bad acts that he contends should not have been heard by the jury. Again, determinations of evidentiary “admissibility, probative value, and unfair prejudice are left to the sound discretion of the trial judge[] and will not be overturned absent clear error” (citation omitted). Melendez, 490 Mass. at 662.
“Evidence of a defendant‘s . . . bad acts is not admissible to demonstrate the defendant‘s bad character or propensity to commit the crime charged.” Commonwealth v. West, 487 Mass. 794, 805 (2021). See Commonwealth v. Helfant, 398 Mass. 214, 224 (1986);
But “[e]ven where relevant for a permissible purpose, the evidence is admissible only if its probative value is not outweighed by its prejudicial effect.” West, 487 Mass. at 805. See Crayton, supra at 249 n.14.14 To be sufficiently probative, there must be a logical connection between the bad act and the facts of the case, and the bad act must not be too remote in time when viewed in light of that logical connection. See Teixeira, 486 Mass. at 627; West, supra; Commonwealth v. Facella, 478 Mass. 393, 405 (2017).
First, the defendant challenges testimony regarding a gun recovered on January 5, 2010. Evidence that the defendant possessed a gun is admissible to show that he had the “means of committing the crime,” including “access to or knowledge of firearms.” Commonwealth v. Holley, 478 Mass. 508, 532, 533 (2017), quoting Commonwealth v. McGee, 467 Mass. 141, 156, 157 (2014). See Mason, 485 Mass. at 533; Commonwealth v. Watt, 484 Mass. 742, 749-750 (2020). To admit such evidence, it is not necessary to submit direct proof that the gun at issue was used in the commission of the charged offense. See Holley, supra at 533. Rather, it is sufficient that the gun “was just one possible model of gun that ‘could have been used in the course of a crime.‘” Id., quoting McGee, supra at 156. For example, in Watt, supra at 749, we held that where a black .40 caliber firearm was used in a shooting, “testimony that the defendants previously had been seen with a ‘Gloсk,’ a ‘40,’ and a black firearm was properly admitted to demonstrate that the defendants had access to the type of firearm that was used.”
Second, the defendant takes issue with the admission of testimony regarding two other shootings: a shooting at about midnight on May 17, 2009, on Whittenton Street; and a July 17, 2009, shooting on Maple Street. Testimony regarding these shootings was admissible for the permissible purpose of establishing motive. See Teixeira, 486 Mass. at 628; Watt, 484 Mass. at 748. In Teixeira, supra, testimony about an earlier shooting established the defendant‘s motive because it revealed animus toward the target, whose brother was killed in the later shooting. In Watt, supra, testimony about an earlier shooting was admissible to establish motive where the evidence indicated that the victim was murdered in retaliation for that earlier shooting. And just as in this case, the motive at issue in Teixeira and Watt was animus based on a long-standing hostility between two groups. See Teixeira, supra at 631; Watt, supra at 746-748.
Here, the Commonwealth‘s theory of the case was that the murder was motivated by the ongoing, violent dispute between Supreme Team and Monteiro. The defendant admitted to Cruz that the shooting on Whittenton Street was an earlier attempt by Supreme Team to shoot at Monteiro. And testimony established another later gunfight between the defendant and Monteiro, which the jury could have concluded occurred on July 17, 2009, in the Maple Street area. These other shootings illustrated Supreme Team‘s hostility toward Monteiro and established the motivation of its members for shooting at his vehicle.
Testimony regarding these incidents also spoke to the defendant‘s state of mind and intent. See Commonwealth v. Pagan, 440 Mass. 84, 87-88 (2003) (“Evidence that the defendant attempted to fire a deadly weapon at [the victim] just ten days prior to the actual killing is probative of the defendant‘s hostile attitude toward [the victim], his intent to kill [the victim], and the premeditated nature of the later killing“). And ultimately, the question here was whether the defendant intended to participate in a murder. The defendant‘s theory of the case was that he was not a full-fledged member of the Supreme Team criminal enterprise but simply a “wannabe.” His participation in attempts to kill Monteiro earlier on the very night in question and then again some months later provided a powerful and permissible rebuttal to this argument.16
Third, the defendant сhallenges the admission of certain acts that broadly might be classed as evidence of gang involvement. Specifically, the defendant contests the admission of testimony about his driving many different vehicles, his involvement in drug sales, his tattoos, and his display of gang signs. But if gang affiliation is the motive for a murder, then “[e]vidence of gang affiliation [i]s relevant to the defendant‘s motive and state of mind.” Commonwealth v. Maldonado, 429 Mass. 502, 504 (1999). See Commonwealth v. Swafford, 441 Mass. 329, 332-333 (2004). Such evidence is particularly appropriate for establishing joint venture liability where, as here, the defendant denies that he participated in the murder with the requisite intent. See Commonwealth v. Lopes, 478 Mass. 593, 604 (2018); Commonwealth v. Akara, 465 Mass. 245, 268 (2013) (“We have most often allowed gang evidence to be admitted for the purpose of establishing joint venture in cases where the evidence showed that the offense involved retaliation or conflict between rival gang members . . . and that the defendants therefore shared a common motive“).
Here, there was testimony that after the victim‘s death, the defendant and two other members of Supreme Team got tattoos stating “death before dishonor” and, further, that one of those other members had that same motto displayed in his vehicle. This message suggests a joint venture, and therefore the testimony was admitted for the appropriate purposes of showing motive, intention,
The defendant also disputes the admission of photographs in which he “appear[ed] to flash gang signs.” But the trial judge did not discern any such signs, and a review of these exhibits does not show this conclusion to be erroneous. Rather, the photographs at issue were offered for the permissible purpose of showing the defendant‘s association with Supreme Team, including the defendant and Jeffreys each wearing a medallion with the initials “S” and “T” on it. As described supra, such common symbols are relevant to establishing a joint venture theory, so these materials were properly admitted. See Lopes, 478 Mass. at 604; Akara, 465 Mass. at 268-269.17
As to each of these acts, the prejudicial impact of any evidence suggesting gang involvement was ameliorated to some extent by the Commonwealth‘s agreement not to refer explicitly to Supreme Team as a gang during the course of the trial.
Fourth, the defendant challenges evidence that he was a drug dealer18 and evidence of his acquisition and possession of guns, including guns obtained from a drug customer. Again, where guns might have been used to commit the offense, their possession by the defendant is admissible. See Holley, 478 Mass. at 533. And “evidence of the defendant‘s activity as a drug dealer” is admissible to establish motive. See Bryant, 482 Mass. at 735-736. What is more, the prosecution is entitled to present a full picture of the alleged crime to the jury. See Morgan, 460 Mass. at 289.
The evidence at issue established that the defendant and Lacombe coordinated the illegal purchase of a .45 caliber semiautomatic
Moreover, Cruz testified that the defendant was known to possess a .45 caliber firearm along with “all types” of other guns, including .45 caliber, .40 caliber, .380 caliber, and .38 caliber firearms. Cruz further recounted the defendant‘s statement that “we” had a number of guns from which to choose, including .40 caliber guns and other types of guns not used in the shooting at issue. As to the .45 and .40 caliber guns, this testimony was permissible for the reasons described supra. See Holley, 478 Mass. at 533; Vazquez, 478 Mass. 443, 448-449 (2017). As to the othеr guns, the testimony suggested that they were held collectively by Supreme Team, and the jury could have concluded that some of those guns had been obtained by the defendant through drug customers.
The defendant‘s acquisition of guns from Baker showed how he obtained the guns that might have been used in the shooting. The fact that the defendant was acquiring guns for collective use by Supreme Team showed his motivation and intentions with regard to the violence that Supreme Team employed in its feud with Monteiro, violence that culminated in the murder of the victim. See Mitchell, 468 Mass. at 418-419, 427; Akara, 465 Mass. at 268-269. Relatedly, this evidence answered the defendant‘s argument that he was not a full participant in the criminal enterprise that was Supreme Team. In closing, defense counsel argued that the defendant was “nothing but a big talker. He‘s on the team, but he‘s a bat boy. He‘s not a clean-up hitter. That‘s the difference. . . . [T]his kid does nothing but talk smack, is nothing but a wannabe.” This evidence showed otherwise.
For his part, the trial judge mitigated the prejudice of such evidence through individual voir dire and specific instructions to the jury. He also screened each potential juror for bias that might arise from testimony about illegal firearms. See Maldonado, 429 Mass. at 505. And the judge provided cautionary instructions against the misuse of bad act evidence. To remedy any prejudice caused by erroneously admitted bad act evidence, “the judge ordinarily may rely on curative instructions.” Commonwealth v. Roe, 90 Mass. App. Ct. 801, 804 (2016). See Maldonado, supra. Conversely, “failure to guide the jury” on the limited purposes for which they may consider such evidence can amount to prejudicial error. See Roe, supra at 807.
Here, the trial judge specifically instructed jurors not to infer any culpability from bad acts. Quoting from
The judge‘s quotation from the Massachusetts Guide to Evidence correctly summarized the law. Even so, we note that instead of specifying the precise purposes for each piece of bad act evidence admitted, the judge‘s limiting instructions simply listed every permissible purpose written in
5. Pretrial and postconviction discovery. The sufficiency of pretrial and postconviction discovery also is disputed. Specifically, the defendant points to certain items produced in postconviction discovery, including late postconviction discovery that was produced in October 2022, during the pendency of these proceedings, and he argues that these mаterials20 should have been produced prior to trial. Counsel for the defendant would have used these items for three purposes: (1) to show that the secret recordings of the defendant were obtained in violation of
These first two arguments were made before this court with the benefit of the materials at issue, and for the reasons described supra, we disagree. As to the third, trial counsel‘s “spirited” cross-examination of Cruz so thoroughly attacked his credibility that these additional materials only would have been cumulative. The cross-examination established that Cruz was a drug dealer and career criminal who cooperated with the Commonwealth only for his own benefit and that, otherwise, he readily lied to law enforcement when it suited him, including about the feud between Supreme Team and Monteiro.
Because the postconviction materials at issue only would have been used in support of unpersuasive arguments or else as cumulative testimony, the failure to produce them prior to trial did not prejudice the defendant and does not warrant an evidentiary hearing or a new trial, and the motion judge did not abuse his discretion in denying the defendant‘s motions for a new trial and for an evidentiary hearing on this ground. See Barry, 481 Mass. at 399-400;
6. Motion for further discovery. The defendant also appeals from the denial of his motion for further discovery, which sought the production of materials subject to the work product protection or else an order requiring the Commonwealth to produce the equivalent of a privilege log. The defendant seeks this discovery to argue that there was no organized crime connection sufficient to authorize Cruz‘s secret recordings of the defendant. Because there is no requirement that the Commonwealth disclose such materials, see
7. CSLI evidence. The defendant contests the admissibility of evidence regarding cell site location information (CSLI) from the cell phones of Jeffreys and the defendant. Specifically, certain CSLI records were admitted in evidence in this case, and testimony from a radio frequency engineer was admitted explaining the import of those records. The trial in this case occurred prior
Here, even if the evidence were admitted improperly, there was no substantial likelihood of a miscarriage of justice because the CSLI records “were both cumulative and corroborative of other evidence.” Vazquez, 478 Mass. at 446. See Commonwealth v. Gumkowski, 487 Mass. 314, 322-323 (2021). Although the CSLI and related testimony were consistent with the Commonwealth‘s theory of the case, they were merely cumulative and corroborative of Cruz‘s testimony, which placed the defendant at the scene.
Specifically, the CSLI and related testimony placed the defendant in the general area of the shooting around the time it occurred. And they showed that the defendant maintained cell phone contact with Jeffreys during the night of the shooting and traveled in the same direction, actions that suggest an intention to participate. But the CSLI evidence was not precise enough to place the defendant at the scene of the shooting. Indeed, defense counsel emphasized the CSLI evidence in his closing argument, concluding that it was consistent with the defendant‘s being on the farther side of the Taunton River and choosing to remain at a distance. Through cross-examination, defense counsel suggested that cell phone calls between the defendant and Jeffreys showed that they were not together.
In sum, the CSLI was only cumulative and corroborative of Cruz‘s stronger testimony that placed the defendant at the scene of the shooting. See Gumkowski, 487 Mass. at 322-323; Vazquez, 478 Mass. at 446-447. Given the force of the defendant‘s admissions to which Cruz testified, “we are substantially confident that the jury‘s verdict would not have been any different had the CSLI records not been admitted.” Vazquez, supra at 447.21
The defendant contends that this exclusion violated his right to a public trial, as secured by the
9. Third-party culprit. The defendant claims that thе judge excluded certain third-party culprit evidence when he sustained
We review such constitutional questions de novo. See Martinez, 487 Mass. at 267. Here, the defendant sought to introduce a mere rumor. In attempting to build foundation, defense counsel‘s prior question showed only that the witness had “heard a lot of things” about the victim‘s murder. And when pressed at sidebar about the question at issue, defense counsel explained that he sought to know what the witness had heard about what Cruz was saying “around town.” The answer therefore properly was excluded, and we note that the judge nеvertheless permitted defense counsel to ask the witness less speculative questions on the same topic. Moreover, defense counsel was otherwise permitted to explore this theory. When cross-examining Cruz, he elicited that Cruz wanted to kill Monteiro himself, and he suggested that Cruz lied about not being present for the shooting. Further, counsel elicited from an investigating trooper that police received information that Cruz had a problem with Monteiro.
10. Admission of certain business records. Records from two businesses, a gun shop and a moving vehicle rental company, were admitted in evidence without objection from trial counsel. On appeal, the defendant asserts that the admission of these records created a substantial likelihood of a miscarriage of justice because they were admitted improperly. See Commonwealth v. Upton, 484 Mass. 155, 159-160 (2020). The defendant does not explain how their admission created such a likelihood.
The rental company records were used to identify the defendant‘s telephone number, but they were cumulative of the CSLI
The defendant takes issue with the records from the gun shop, which corroborated Baker‘s testimony about purchasing guns from that store. But the defendant did not dispute directly that Baker purchased these guns. Rather, he disputed that Baker sold the guns to the defendant. There was no substantial likelihood of a miscarriage of justice because there was no indication that the records at issue were inconsistent with the defendant‘s theory of the case. See Commonwealth v. Taylor, 455 Mass. 372, 377-378 (2009).
11. Closing argument. During closing argument, the prosecutor discussed testimony given by a witness from the Department of Transportation. Specifically, the witness testified that a 2009 study revealed that on a Sunday morning from 1 A.M. to 2 A.M., 184 vehicles traveled in the southbound lanes of Route 24, where the shooting occurred. In closing, the prosecutor argued that “180 cars go by during that hour,” continuing, “You take that and divide it by sixty minutes, three cars go by an hour. And guess what three cars were there? Statistically spеaking . . . .” From the context, he intended to say “minute” instead of “hour.” This conclusion was offered in support of the prosecutor‘s argument that traffic was sparse on that stretch of highway at the time of the shooting.
The defense argues that these representations created a substantial likelihood of a miscarriage of justice. See Upton, 484 Mass. at 159-160. But the defendant did not dispute that a crime occurred on that road in the early morning hours. Rather, he only disputed that he was present; the amount of traffic was not a point of contention. Even if we assume that the prosecutor was suggesting that his math compelled the presence of a third vehicle -- a plainly impermissible inference from the testimony under discussion
12. Ineffective assistance of counsel. The defendant argues that he received ineffective assistance from his trial counsel insofar as counsel (a) failed to review the contents of the video recordings described in the May 14, 2020, and October 23, 2020, affidavits of trial counsel, (b) failed to object to CSLI evidence, and (c) failed to object to the admission of documents from the gun shop and rental company. Where, as here, we conduct a plenary review of the defendant‘s conviction of murder in the first degree, we evaluate his claim of ineffective assistance of counsel under the more favorable standard of
13. Comments regarding defense expert. We also note that, during closing argument, the prosecutor referred to the defendant‘s handwriting expert as a “buffoon,” and some of the cross-examination of this expert approached improper insinuation insofar as it seemed to suggest that the expert‘s testimony was bought by the defendant. As the defendant did not object, we review the questions and argument for a substantial likelihood of a miscarriage of justice. Commonwealth v. Rutherford, 476 Mass. 639, 643-644 (2017). We do not believe that the testimony of the defense expert had substantial weight except to suggest to the
14. Duplicative convictions. The parties agree that the defendant‘s three convictions of assault by means of a dangerous weapon pursuant to
15. Review under
Conclusion. For the foregoing reasons, we affirm the defendant‘s convictions except for his three convictions of assault by means of a dangerous weapon pursuant to
So ordered.