Commonwealth v. RobinsonCommonwealth v. Robinson
BUDD, J. On the evening of February 24, 2000, Edward Figueroa was found dead at his girlfriend‘s home. On August 21, 2000, the defendant was convicted of murder in the first degree on theories of deliberate premeditation and extreme atrocity or
Background. We summarize the facts as the jury could have found them, reserving certain details for discussion of specific issues.
The victim, who lived with his girlfriend in Dennisport, was friends with, and sold marijuana for, the defendant. Because the victim‘s car was not registered, he had to rely on friends to drive him to the defendant‘s apartment in Fall River to pick up marijuana to sell, and sometimes had “a hard time getting a ride.” One to two weeks prior to the victim‘s death, the victim received rides to Fall River from two different friends, one of whom observed the defendant in possession of a revolver approximately five days before the victim was killed.
On the evening of February 24, 2000, the defendant was visiting the victim at the victim‘s girlfriend‘s home in Dennisport. Hours before the victim was shot and killed, the
At approximately 10:15 P.M., two neighbors heard several gunshots, and a third neighbor heard a motor vehicle speeding away. The victim‘s girlfriend returned at approximately 10:30 P.M., at which time she noticed that the defendant‘s car was gone and the front door to her apartment was partially open. When she entered the living room of the apartment, she saw that the victim was dead in a chair that had been tipped backward onto the floor.
The victim suffered two gunshot wounds to his head, including through the left eye and the left temple. Blood spatter suggested that the victim was on his back on the ground when he was shot in the head by someone positioned to the victim‘s left. The wounds indicated that the firearm was between six inches and three feet from the victim‘s head when it was fired. The victim also had gunshot wounds to his left arm and right hand, his upper chest, and his left lower leg.
Cell site location information (CSLI) indicated that the defendant made cellular telephone (cell phone) calls on the night of the murder between 11:29 P.M. and 1:41 A.M. The first of the calls was initiated in Mattapoisett. Investigators determined that it would have taken approximately fifty-nine minutes to travel from the victim‘s home to Mattapoisett. Thus, the defendant could have left the victim‘s apartment at approximately 10:15 P.M. and arrived in Mattapoisett approximately fourteen minutes before making his first telephone call at 11:29 P.M.
The defendant‘s girlfriend initially told investigators that the defendant had arrived at her apartment at 8 P.M. on the night of the murder. However, at trial she testified that she did not know what time the defendant had arrived at her home that night. She further testified that, on the morning following the murder, the defendant said to her, “I was here last night, right? . . . About 8:00, right?” This caused her to believe something was going on, and to tell the police that he got home at 8 P.M. on February 24.
The defendant‘s theory of the case was that a third party, Ryan Ferguson, killed the victim. On the night prior to his death, the victim punched Ferguson several times in the head as Ferguson sought to confront the defendant about the defendant‘s attempt to flirt with Ferguson‘s girlfriend. Ferguson later telephoned a friend seeking access to a firearm, and vowed to get revenge against the victim. However, there was no evidence that Ferguson ever obtained a firearm, and there was testimony from witnesses that he was with others at the time that the victim was killed.
Discussion. 1. Sufficiency of evidence. The defendant argues that the judge erred in failing to allow his motion for a required finding of not guilty at the close of the Commonwealth‘s case. He claims that the evidence presented was insufficient to support the conviction of murder in the first degree because his identification as the shooter was “left to speculation.” In considering this claim, we must view the evidence presented at trial, together with reasonable inferences
We acknowledge that the identification evidence was circumstantial; however, “a conviction may rest upon circumstantial evidence alone, and the inferences a jury may draw from the relevant evidence need only be reasonable and possible,” not “necessary or inescapable” (quotation and citation omitted). Commonwealth v. Martin, 467 Mass. 291, 312 (2014). Here, the evidence presented would allow a rational fact finder to conclude beyond a reasonable doubt that the defendant shot the victim several times with his revolver and fled to his girlfriend‘s home in Fall River. See Commonwealth v. Cohen, 412 Mass. 375, 380 (1992) (“absence of direct proof by way of an eyewitness who saw the defendant shoot the victims is not damaging to the Commonwealth‘s case so long as there is competent circumstantial evidence that establishes the defendant‘s guilt“).
The victim‘s girlfriend left the defendant and the victim alone sometime after 9 P.M. on the night of the killing. At approximately 10:15 P.M., neighbors heard gunshots and a motor vehicle speeding away. When the victim‘s girlfriend returned at approximately 10:30 P.M., she found the defendant and his car gone, and the victim dead from gunshot wounds. The Commonwealth introduced CSLI data that was consistent with its argument that the defendant shot the victim and thereafter traveled south to Fall River. In addition, the ballistic evidence indicated that the bullets removed from the victim‘s body were all of the same caliber and likely fired from the same weapon, a revolver; a
Moreover, the jury could infer that the evidence presented demonstrated consciousness of guilt. See Commonwealth v. Morris, 465 Mass. 733, 736-738 (2013) (although consciousness of guilt alone not sufficient to sustain conviction, such evidence may be used, along with other evidence, to establish proof of guilt beyond reasonable doubt). The defendant‘s girlfriend testified that on the morning following the murder, the defendant said, “I was here last night, right? . . . About 8:00, right?,” suggesting that he wanted investigators to believe that he arrived at her home much earlier than he actually did. In addition, two witnesses from the Barnstable County house of correction testified that, weeks after the shooting, the defendant alluded to having killed the victim.
Thus, the Commonwealth demonstrated that the defendant had the motive, opportunity, and means to kill the victim, as well as consciousness of guilt. See Commonwealth v. Emeny, 463 Mass. 138, 151 (2012) (evidence sufficient to convict where Commonwealth provided evidence of motive, means, opportunity, and consciousness of guilt). Although any one piece of evidence
In addition to having presented sufficient evidence for the jury to have found beyond a reasonable doubt that the defendant was the shooter, the Commonwealth also presented sufficient evidence that the defendant killed the victim with deliberate meditation as well as with extreme atrocity or cruelty. To prove murder in the first degree on a theory of deliberate premeditation, the Commonwealth must show beyond a reasonable doubt that the defendant intentionally caused the victim‘s death and that he decided to kill after a period of reflection. Commonwealth v. Whitaker, 460 Mass. 409, 418 (2011). “No particular period of reflection is required for deliberate premeditation to be found. The law recognizes that a plan to murder may be formed within a few seconds” (citation omitted). Commonwealth v. Chipman, 418 Mass. 262, 269 (1994). Deliberate premeditation can be inferred from the bringing of a firearm to the scene of the killing, Commonwealth v. Williams, 422 Mass. 111, 122-123 (1996) (defendant brought loaded revolver to
To prove extreme atrocity or cruelty, the Commonwealth must demonstrate one or more of the so-called Cunneen factors:
“(1) whether the defendant was indifferent to or took pleasure in the victim‘s suffering; (2) the consciousness and degree of suffering of the victim; (3) the extent of the victim‘s physical injuries; (4) the number of blows inflicted on the victim; (5) the manner and force with which the blows were delivered; (6) the nature of the weapon, instrument, or method used in the killing; and (7) the disproportion between the means needed to cause death and those employed.”
Commonwealth v. Linton, 456 Mass. 534, 546 n.10 (2010). See Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). The Commonwealth presented evidence that the victim, who had been struck by five bullets, was found in a chair that had tipped backward onto the floor with gunshot wounds to his head, chest, arm, hand, and leg. The jury could have found from this evidence that the victim saw that he was about to be shot, attempted to defend himself, and was propelled backward by the initial shots fired. Further, the evidence also allowed an inference that the shots to his head were fired at close range after he had fallen back in his chair. Thus, when viewed in the light most favorable to the Commonwealth, the jury could have found at least one of the above factors. See, e.g., Commonwealth v. Alicea, 464 Mass. 837, 853 (2013) (extreme
2. Juror issues. The defendant contends that the judge mishandled two issues that arose in connection with two sitting jurors. As discussed infra, we perceive no reversible error.
a. Juror no. 2-7. On the morning of the third day of trial, juror no. 2-7, an African-American woman, expressed concern about her bias to a court officer, who in turn notified the judge. After conferring with the parties, the judge held a colloquy in his chambers outside the presence of the parties. During the colloquy, the juror explained that she “was really angry” with some of the witnesses because she saw them as “refus[ing]” to “avail themselves of the opportunities out there.” The juror also mentioned with disapproval a tattoo on the neck of one of the witnesses, which, according to the juror, was the Chinese character for “mouth,” “joy to the mouth,” or “repeatedly.” The juror further stated that she “tried to set aside [her] own past and [her] own biases, but they [kept] coming to the forefront.”
When asked whether she had shared her thoughts with any of the other jurors, the juror stated that she spoke with two other jurors, who were educators like herself, “in general” about “the decline of student values, morals, et cetera -- parental care,”
i. Exclusion from juror colloquy. Although trial counsel did not object to being excluded from the colloquy with juror no. 2-7 at the time it took place, the defendant now argues that the exclusion was reversible error. We disagree.
“When a judge conducts an inquiry about a consequential matter, such as alleged serious misconduct of jurors, there is a requirement, deriving from the constitutional right of confrontation, that the defendant and his counsel be present.” Commonwealth v. Angiulo, 415 Mass. 502, 530 (1993), and cases cited. However, the defendant may waive the right by not making a request to be present for the inquiry. Commonwealth v. Dyer, 460 Mass. 728, 738 (2011), cert. denied, 566 U.S. 1026 (2012).
Here, because the defendant did not object to being excluded from the in-chambers interview of juror no. 2-7, we review the judge‘s actions for a substantial likelihood of a miscarriage of justice. See id. at 735 n.7 (where
The transcription of the colloquy was read back to the parties verbatim immediately after the colloquy occurred. See Commonwealth v. Martino, 412 Mass. 267, 286-287 (1992). The defendant does not argue now, and did not argue at the time, that the colloquy was defective, or that trial counsel would have requested a different line of questioning had he been present for the colloquy. In fact, the defendant‘s trial counsel characterized the judge‘s questioning as “wholly appropriate.” The defendant had a “sufficient opportunity to evaluate the problem and to arrive at a solution that [he], at the time, thought was in his best interests,” see id. at 287, even though the judge ultimately dismissed the juror over his objection. Thus, we discern no substantial likelihood of a miscarriage of justice with regard to the colloquy.
ii. Voir dire of jurors for taint. The defendant also argues that the judge should have made individual inquiry of each juror after dismissing juror no. 2-7 to ensure that, to the extent that certain jurors had been exposed to juror no. 2-7‘s
“When a judge determines that the jury may have been exposed during the course of trial to material that ‘goes beyond the record and raises a serious question of possible prejudice,’ he [or she] should conduct a voir dire of jurors to ascertain the extent of their exposure to the extraneous material and to assess its prejudicial effect.” Commonwealth v. Francis, 432 Mass. 353, 369-370 (2000), quoting Commonwealth v. Jackson, 376 Mass. 790, 800 (1978). We review the judge‘s decision whether to conduct such a voir dire for an abuse of discretion. See Francis, supra at 370.
Here, the juror told the judge that she had discussed with other jurors general matters, such as the decline of values and morals among young people. The juror also said that she had told one other juror the purported meaning of the tattoo on a witness‘s neck.3 However, the juror indicated that she did not share her views on any of the individuals or issues involved in the case. Although a voir dire of the remaining jurors may have been prudent, the judge was well positioned to assess juror no. 2-7‘s credibility, and it was within his sound discretion to
iii. ”Premature” jury discussions. The defendant contends that the colloquy with juror no. 2-7 demonstrated that the jury had engaged in “premature discussions” about the case prior to the conclusion of evidence, closing arguments, and the judge‘s final instructions, depriving the defendant of his constitutional right to a fair and impartial jury. See Commonwealth v. Philbrook, 475 Mass. 20, 30 (2016); United States v. Jadlowe, 628 F.3d 1, 17-18 (1st Cir. 2010), cert. denied, 563 U.S. 926 (2011), citing United States v. Resko, 3 F.3d 684, 688-689 (3d Cir. 1993). He further argues that the judge‘s instructions to the jury that it was not essential to avoid discussing the case prior to deliberations was reversible error. We disagree.
Although “it is improper for jurors to discuss a case prior to its submission to them (citation omitted),” Jadlowe, 628 F.3d at 15, contrary to the defendant‘s assertion, there was no indication that any members of the jury expressed a point of view about the evidence or what the outcome of the trial should be. See id. at 18 (“not all premature jury discussion about a case will compromise a defendant‘s fair trial rights,
Here, juror no. 2-7 specifically told the judge that she had not discussed her views on any issues or individuals involved in the case. In fact, other than explaining the meaning of a witness‘s tattoo to one juror, there is no indication that juror no. 2-7 discussed any of the witnesses or the case at all. Rather, she said that she had talked with two other jurors, who were also in the education field, about the decline of values and morals among young people generally. Because these topics were, at best, ancillary to facts at issue in the trial, the judge was not required to address the matter with the remaining jurors. See Commonwealth v. Maldonado, 429 Mass. 502, 506-507 (1999), and cases cited (trial judge has “discretion in addressing issues of extraneous influence on jurors discovered during trial“).
Nevertheless, the judge gave the following instruction to the jury at the end of the day on which juror no. 2-7 was dismissed:
“Members of the jury, please remember my four admonitions. Keep an open mind. Don‘t discuss the case with anybody until you have completed your jury service. Don‘t discuss the case among yourselves. Some information has come to me that the jury was discussing the matter. Again, I think it‘s very important -- not essential, but very important that you do not. Wait until you have heard the entire case. Do not read anything about the case, look at
anything about the case, or listen to anything about the case until you have completed your jury service.”
It was error to instruct the jury that avoiding discussion of the case prematurely (i.e., after all evidence had been admitted, closing arguments, and final instructions) was “not essential.” See Jadlowe, 628 F.3d at 18. However, as there was no indication that jurors had deliberated prematurely about the outcome of the case prior to the instruction, there is no reason to believe that they would do so after the judge‘s instruction, especially where he told the jurors that it was “important” not to discuss the case. We conclude that the error did not result in a substantial likelihood of a miscarriage of justice. See Commonwealth v. Santos, 454 Mass. 770, 772 (2009).
b. Juror no. 1-5. At the end of the third day of trial, juror no. 1-5 informed a court officer that her son was at the same house of correction as Ferguson, who had testified that day and who was the individual that the defendant alleged was the actual killer. The juror was worried that the witness could “[g]et to her son“; the court officer observed that the juror was “really upset.” The judge did not speak with the juror directly; instead, he asked the court officer to reassure the juror that “there wouldn‘t be any problems” and “to inform the House of Correction of the situation.” However, the judge did not “see . . . why [Ferguson] would be upset with [the juror‘s
The defendant argues on appeal that the judge should have conducted a voir dire of juror no. 1-5. It is within the judge‘s sound discretion to find that there exists “a substantial risk of extraneous influences on the jury,” and to inquire accordingly. See Commonwealth v. Boyer, 400 Mass. 52, 55 (1987), and cases cited. Here, the record demonstrates that the judge was warranted in concluding that reassuring the juror of her son‘s safety and anonymity was adequate. See Commonwealth v. Federici, 427 Mass. 740, 747 (1998), and cases cited (“‘serious question of possible prejudice’ did not exist such as to require individual voir dire“). There was no error.
3. Character evidence. The defendant argues that the judge should not have admitted evidence over his objection that, in the weeks prior to his death, the victim traveled to Fall River to obtain marijuana from the defendant. According to the defendant, sufficient context for the killing already was provided by evidence relating to the argument between the defendant and the victim. Furthermore, the defendant argues that the unfair prejudice of the drug transaction evidence was
“Evidence of a crime, wrong, or other act is not admissible to prove a person‘s character in order to show that on a particular occasion the person acted in accordance with the character.”
4. Closing arguments. The defendant argues that the following excerpt from the Commonwealth‘s closing argument was without basis in the evidence:
“[The victim] was a drug dealer for [the defendant]. He went to Fall River to [the defendant‘s girlfriend‘s] house on a regular basis to get drugs. [Two witnesses] tell us
that.4 And [the victim] acted as a bodyguard for [the defendant], interceding even when [the defendant] was being challenged by the boyfriend of a girl who he decided he wanted.” (Emphasis added.)
Prosecutors are “entitled to marshal the evidence and suggest inferences that the jury may draw from it.” See Commonwealth v. Tassinari, 466 Mass. 340, 355 (2013). The prosecutor also may suggest “what conclusions the jury should draw from the evidence.” See Commonwealth v. Ferreira, 381 Mass. 306, 316 (1980). However, it is impermissible to “misstate the evidence, to refer to facts not in evidence . . . , to use evidence for a purpose other than the limited purpose for which it was admitted, or to suggest inferences not fairly based on the evidence.”
We disagree with the defendant‘s assertion that there was no evidence that the victim went to Fall River for drugs “on a regular basis” and that the victim was the defendant‘s “bodyguard.” Two witnesses testified that they drove the victim
5. Review under
Judgment affirmed.