Commonwealth v. RobinsonCommonwealth v. Robinson
Homicide. Felony-Murder Rule. Joint Enterprise. Robbery. Evidence, Joint enterprise, Statement of codefendant, Hearsay, Third-party culprit, Expert Opinion. Practice, Criminal, Capital case, New trial, Hearsay, Trial of defendants together, Instructions to jury, Argument by prosecutor, Sentence. Constitutional Law, Sentence.
Indictments found and returned in the Superior Court Department on September 27, 2000.
Following review by this court, 480 Mass. 146 (2018), a motion for a new trial was heard by Robert L. Ullmann, J., and a motion for reconsideration was also heard by him.
Rosemary Curran Scapicchio (Jillise McDonough also present) for the defendant.
Paul B. Linn, Assistant District Attorney, & Cailin M. Campbell, Special Assistant District Attorney (John C. Verner, Assistant District Attorney, also present) for the Commonwealth.
The following submitted briefs for amici curiae:
Darina Shtrakham, of California, Matt K. Nguyen, of the District of Columbia, & Adam Gershenson for Jeffrey Aaron & others.
Kenneth J. Parsigian, Avery E. Borreliz, Erin M. Haley, & Martin W. Healy for Carol S. Ball & others.
Benjamin H. Keehn, Committee for Public Counsel Services, & John J. Barter for Committee for Public Counsel Services.
BUDD, C.J. Following a joint jury trial with his codefendant, the defendant, Jason Robinson, was convicted of murder in the first degree on a joint venture theory of felony-murder, with armed robbery as the predicate offense, in connection with the shooting death of Inaam Yazbek (victim).1 The defendant appeals from his convictions and from the denial of his motion for a new trial, claiming that there was insufficient evidence to convict him as well as reversible error on the part of the Commonwealth and the judge. In the alternative, he asks us to declare his life sentence without parole to be unconstitutional because he was nineteen years old at the time of the crime, based on Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013), and
We affirm the defendant‘s conviction of murder in the first degree, as well as the order denying his motion for a new trial. After full consideration of the record, we further conclude that extraordinary relief under
Background. We summarize the facts as the jury could have found them, reserving certain details for later discussion. On March 27, 2000, the defendant was with codefendant Tanzerius
The trio planned that Tate would meet the victim and then lead him to an apartment building in Brighton, where Anderson and the defendant would ambush him. After having dinner with the victim at a restaurant in Watertown, Tate asked him to drive her to the designated location and, using the victim‘s cell phone, sent “1145” to the defendant‘s pager to signal when she would be at the appointеd meeting place.
When Tate and the victim arrived, she led him into a hallway of the building and then back out again, where they encountered Anderson and the defendant. Tate said to the victim, “[W]e‘re being robbed,” and walked away. Anderson and the defendant led the victim by his arms back into the building.
Once inside, Anderson told the victim to keep his hands up and not to turn around to look at them. Anderson further told the victim that he was going to be frisked for his belongings.
Hours later, a resident of the apartment building found the victim outside the building lying in a pool of blood. The medical examiner later determined that the cause of death was a
We stayed the defendant‘s direct appeal in order for a Superior Court judge to hear his motion for a new trial. After the defendant‘s motion for a new trial was allowed, we reversed that order on appeal and remanded for additional findings. Commonwealth v. Robinson, 480 Mass. 146, 155 (2018). The motion for a new trial ultimately was denied on all but one issue, sufficiency of the evidence for the felony-murder conviction, which was reserved for this court.
Discussion. 1. Sufficiency of the evidence. In order for a jury to convict a defendant of joint venture felony-murder with armed robbery as the predicate offense, thе Commonwealth must establish beyond a reasonable doubt that the defendant participated in committing the armed robbery as a joint venturer with the intent to commit that offense and that the victim was killed in furtherance of that armed robbery. Commonwealth v. Gallett, 481 Mass. 662, 673 (2019). To prove armed robbery, the Commonwealth must prove that a defendant (1) was armed with a dangerous weapon; (2) either applied actual force or violence to the victim, or by words or gestures put the victim in fear; (3) took the money or the property of the victim; and (4) did so with the intent to steal it. Commonwealth v. Chesko, 486 Mass. 314, 320 (2020). Thus, to convict the defendant of armed
The dеfendant argues that the Commonwealth failed to prove that he committed joint venture armed robbery (and consequently failed to prove joint venture felony-murder) because there was insufficient evidence that he knew Anderson was armed. For the reasons discussed infra, we disagree.
In reviewing claims of insufficient evidence, we assess the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found each element of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). In so doing, we keep in mind that “[p]roof of the essential elements of the crime may be based on reasonable inferences drawn from the evidence, . . . and the inferences a jury may draw need only be reasonable and possible and need not be necessary or inescapable.” Commonwealth v. Kapaia, 490 Mass. 787, 791 (2022), quoting Commonwealth v. West, 487 Mass. 794, 800 (2021).
We conclude that, taken together, the evidence was sufficient to permit an inference that the defendant knew that Anderson would be armed when they committed the robbery. See,
Notably, the defendant and Anderson spent between one and two hours together, after dropping Tate off to meet and spend time with the victim before the robbery. It is reasonable to infer that, during that period of time, the defendant and Anderson discussed their plan further and that Anderson made the
Even assuming that the defendant was unaware that Anderson had a gun until Anderson pulled it out, the defendant did not withdraw from participation in the joint venture at that time. Instead, the defendant had possession of a wallet and cell phone, which the jury could infer belonged to the victim, when he returned to Anderson‘s car. See Commonwealth v. Eagles, 491 Mass. 210, 219-220 (2023) (jury could infer that defendant had requisite intent for armed robbery where, after learning of coventurer‘s use of weapon, defendant continued to take victim‘s valuables). “Where a defendant continues to act in furtherance of the joint venture even after learning of a coventurer‘s weapon, we have allowed an inference that the coventurer had the requisite intent for the joint venture.”6 Phap Buth, 480 Mass.
The totality of the evidеnce, viewed in the light most favorable to the Commonwealth, was sufficient to support the jury‘s finding that the defendant intended to participate with Anderson in an armed robbery of the victim. Where the circumstances of the robbery gave rise to a reasonable inference that a weapon would be needed, and where the evidence suggested that the defendant did not withdraw from the venture after Anderson drew the gun, the jury were permitted to infer that the defendant possessed the requisite knowledge and intent to be convicted of the predicate offense of armed robbery. There thus was sufficient evidence to convict him of felony-murder.
2. Admission of codefendant‘s statements and acts. The defendant argues that the admission of certain evidence over his
knowledge.” Id. at 78 n.9. This is compatible with our case law. See, e.g., Phap Buth, 480 Mass. at 117.
a. Before the shooting. The defendant suggests that Tate‘s testimony regarding evеnts involving only Tate and Anderson had an adverse impact on the defendant. First, Tate testified that, prior to the robbery, she and Anderson had discussed a scheme Anderson had to rob drug dealers. She also testified that, two days before the shooting, she and Anderson had traveled to New Hampshire, broke into Tate‘s father‘s condominium, and stole firearms and ammunition, including a .357 magnum revolver.
On appeal, the defendant does not specify how this evidence was prejudicial to him. He was not implicated in either Anderson‘s planned scheme to rob drug dealers or the theft of the firearm. Moreover, at the time of Tate‘s testimony, the judge provided limiting instructions emphasizing to the jury that they could not consider evidence concerning one defendant against the other unless they dеtermined that the acts or
b. After the shooting. The defendant also challenges the admission of various statements Anderson made after the
Tate testified that immediately after the shooting, when she initially asked Anderson “what happened” to the victim, he responded, “[H]e‘s murked,” which she understood to mean that he was dead. She further testified that days later Anderson provided more details about the shooting that implicated the defendant in the crime.9
Out-of-court statements, such as Anderson‘s, may be offered to prove the truth of the matter asserted and are admissible against a defendant if made by a coventurer “during the cooperative effort and in furtherance of its goal.” Mass. G. Evid. § 801(d)(2)(E) (2023). See Commonwealth v. Wardsworth, 482 Mass. 454, 459-460 (2019). Before admitting such evidence, however, a judge must make a preliminary determination, based on a preponderance of the evidence, separate from the out-of-court statement itself, that a joint venture existed between the declarant and the defendant and that the statement was made
Anderson‘s statements describing the crime to Tate were made immediately after the shooting and a few days later. There was ample evidence from which to conclude that Tate was a joint venturer, as she was a central party in the robbery‘s planning, preparation, and execution. See Rakes, 478 Mass. at 40, citing Commonwealth v. Bright, 463 Mass. 421, 436 n.21 (2012). Viewing the evidence in the light most favorable to the Commonwealth, these statements were made during and in furtherance of the concealment of the joint venture, and thus were admissible against the defendant.11 See Commonwealth v. Winquist, 474 Mass. 517, 523 (2016) (“appellate courts . . . have deemed admissible statements made by joint venturers during the so-called concealment phase of their criminal enterprise when such phase is relatively close in time to the commission of the crime“). In making these statements, Anderson was sharing information
The defendant also argues that the statements Anderson madе to Tate, as well as a statement Anderson made to police approximately one week after the robbery and killing, were inadmissible in violation of Bruton v. United States, 391 U.S. 123 (1968). We disagree.
Under Bruton, “the introduction at a joint trial of a nontestifying codefendant‘s statement, which names and incriminates the other defendant, violates that defendant‘s
As an initial matter, the defendant‘s argument that Anderson‘s account of the robbery and killing to Tate violates Bruton is unpersuasive, as it hinges on an assertion that Tate was not a part of the joint venture. See Commonwealth v. Robertson, 489 Mass. 226, 232 (2022); Commonwealth v. DePina, 476 Mass. 614, 629 n.13 (2017). For the reasons explained supra, we disagree with that premise.
The defendant also challenges the judge‘s admission of a statement that Anderson made to police on April 4, one week after the robbery and killing. But to the extent the defendant
Therefore, Anderson‘s “statements were not sufficiently inculpatory to offend the defendant[‘s] Sixth Amendment rights.” Blake, 428 Mass. at 60. Anderson told the police that during the time the crime actually occurred, he was not with the defendant and that he thought the defendant had gone home. “Even if we take the statement of [Anderson] to suggest that the defendant[‘s] whereabouts were unknown to him around the time of the shooting[],” the statement did not inculpate the defendant in any concrete way. Id. at 62. See Commonwealth v. Vasquez, 462 Mass. 827, 843-844 (2012).
3. Severance. The rules of criminal procedure allow for defendants to be joined in the same indictment “if the charges against them arise out of the same criminal conduct or episode or out of a course of criminal conduct or series of criminal episodes so connected as to constitute parts of a single scheme, plan, conspiracy or joint enterprise.”
The defendant does not suggest that his theory of the case was incompatible with Anderson‘s. In fact, both defendants focused on attacking Tate‘s credibility, pointing out the inadequacy of the police‘s investigation, and suggesting the existence of third-party culprits. Nor has the defendant demonstrated that being tried with Anderson resulted in prejudice so acute as to deprive him of a fair trial.
As discussed supra, evidence of Anderson‘s statements and actions properly were admitted. See Commonwealth v. Clarke, 418 Mass. 207, 218-219 (1994) (severance not required where codefendant‘s statements were admissible). We detect no potential for “prejudicial spillover effect” where much of the evidence admitted against Anderson was also admissible against the defendant, and the jury were provided with appropriate instructions as to how to view the evidence. Commonwealth v. Helfant, 398 Mass. 214, 229-231 (1986). Contrary to the defendant‘s assertions, the evidence against him clearly established that he willingly agreed to participate in the joint venture, was involved in its planning, and was present for its execution. As a result, “a second proceeding” against the defendant would have been “largely duplicative of the first.”
4. Jury instructions. The defendant also argues that the judge failed to instruct the jury that they were to consider the evidence against each defendant separately,14 resulting in a substantial likelihood of a miscarriage of justice.15 We disagree.
During her preliminary instructions to the jury, prior to opening statements, the judge explained that the Commonwealth was required to “prove the guilt of each defendant.” As discussed supra, during the trial the judge gave limiting instructions at appropriate points, admonishing the jury to consider evidence relating to a particular defendant against
Judges are “not required to grant a particular instruction so long as the charge, as a whole, adequately covers the issue.”16 Commonwealth v. Teixeira, 490 Mass. 733, 742 (2022), quoting Commonwealth v. McGee, 467 Mass. 141, 154 (2014). This is especially true where, as here, the defendant did not request instructions on this issue. As the judge‘s instructions were entirely proper, there was no error and, thus, no substantial likelihood of a miscarriage of justice.
5. Third-party culprit and Bowden evidence.
The defendant contends that the judge erred in excluding еvidence relating to two persons that he sought to present as third-party culprits and as suspects whom police failed to investigate. See
“Third-party culprit evidence is ‘a time-honored method of defending against a criminal charge.‘” Commonwealth v. Silva-Santiago, 453 Mass. 782, 800 (2009), quoting Commonwealth v. Rosa, 422 Mass. 18, 22 (1996). A defendant generally is given “wide latitude to the admission of relevant evidence that a person other than the defendant may have committed the crime charged.” Silva-Santiago, 453 Mass. at 800-801. However, the evidence “must have a rational tendency to prove the issue the defense raises[] and . . . cannot be too remote or speculative.” Id. at 801, quoting Rosa, supra. Additionally, if the third-party culprit evidence constitutes hearsay that does not fall within a hearsay exception, it is admissible if “the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other ‘substantial connecting links’ to the crime” (citation omitted). Silva-Santiago, supra. See generally
At trial, the defendant proffered that one person was a possible third-party culprit because allegedly he had been Tate‘s boyfriend, lived in the same development where the crime occurred, and was “known by the police” to have been in possession of two “three fifty-seven magnums” approximately one
In addition to presenting third-party culprit evidence, defendants may “base their defense on the failure of police adequately to investigate a murder in order to raise the issue of reasonable doubt as to the defendant‘s guilt.” Commonwealth v. Phinney, 446 Mass. 155, 165 (2006). See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). Whether evidence of
6. Commonwealth‘s opening statement and closing argument.
The defendant contends that errors made by the prosecutor in his opening statement and closing argument warrant reversal. Specifically, the defendant contends that the prosecutor impermissibly appealed to the jurors’ sympathy and improperly vouched for Tate‘s credibility. As the defendant objected to the remarks at issue, we review them to determine whether any error was prejudicial. See Commonwealth v. Alemany, 488 Mass. 499, 511 (2021).
a. Appeals to sympathy.
The defendant argues that the prosecutor improperly appealed to the jurors’ sympathy during his opening statement in characterizing the victim‘s final moments as spent “begging . . . for his life” and, as attributed by defense counsel, describing the victim‘s face after the
The prosecutor‘s description of the gunshot wound to the victim‘s face made during opening statement was accurate based on the evidence presented at trial.19 See Commonwealth v. Barbosa, 477 Mass. 658, 670 (2017) (closing not improper where “the prosecutor‘s description of the victim‘s murder was based on the evidence and was relevant to establish the nature of the сrime“). Where the Commonwealth was proceeding, in part, on a theory of extreme atrocity or cruelty,20 the “[d]etails regarding
The same is true of the prosecutor‘s description of the victim as begging for his life. Where the evidence suggested that the victim had pleaded with Anderson and the defendant while a gun was pointed at him, the prosecutor‘s description, if enthusiastic, was based on the evidence. See Barbosa, 477 Mass. at 670-671.
Nor did the mention of the victim‘s brothers constitute an improper appeal to the jury‘s sympathy. A prosecutor may “tell the jury something of the person whose life had been lost in order to humanize the proceedings” (citations omitted). Commonwealth v. Doughty, 491 Mass. 788, 797-798 (2023). The prosecutor‘s comments, while “certainly sympathetic, . . . were not excessive, nor were they the focal point.” Commonwealth v. Rodriguez, 437 Mass. 554, 567 (2002), citing Commonwealth v. Degro, 432 Mass. 319, 326-328 (2000). Cf. Commonwealth v. Cheng Sun, 490 Mass. 196, 210 (2022). They did not constitute error.
During his closing argument, the prosecutor told the jury that they would be able to see Tate‘s plea agreement, which demonstrated that she was obligated “to tell the truth” or “be prosecuted.” The prosecutor also asked, “[W]ith that obligation, what motivation is there for [Tate] to lie?” The prosecutor then stated that “[t]here is no motivation for [Tate] to do anything but to tell the truth in this case” and that Tate had “no motive to lie.” The defendant argues that this constitutes vouching. We disagree.
Where a witness testifies pursuant to a plea agreement, a prosecutor may not suggest that the government has special knowledge of that witness‘s credibility. See Commonwealth v. Webb, 468 Mass. 26, 31-32 (2014). However,
“[a] prosecutor may generally bring out on direct examination the fact that a witness has entered into a plea agreement and understands his [or her] obligations under it, but any attempts to bolster the witness by questions concerning his [or her] obligation to tell the truth should await redirect examination, and are appropriate only after the defendant has attempted to impeach the witness‘s credibility by showing the witness struck a deal with the prosecution to obtain favorable treatment.”
Commonwealth v. Washington, 459 Mass. 32, 44 n.21 (2011), citing Commonwealth v. Ciampa, 406 Mass. 257, 264 (1989).
This is exactly what happened here. On cross-examination, trial counsel for both defendants asked Tate extensive questions about her plea agreement with the Commonwealth in order to impеach her credibility. Trial counsel for the defendant made
7. Ballistics expert evidence.
The defendant argues that the opinion testimony provided by the Commonwealth‘s ballistics expert, Sergeant Detective Mark Vickers, that the victim‘s injuries were consistent with the use of a high velocity weapon and that a .357 magnum firеarm is a “perfect example” of a high velocity weapon, was unreliable and prejudicial. It was neither.
Expert testimony is admissible if reliable, relevant, and helpful to the jury in understanding matters “outside their common experience.” Commonwealth v. Hinds, 487 Mass. 212, 217-218 (2021), quoting Commonwealth v. Shanley, 455 Mass. 752, 761 (2010). See
Here, the Commonwealth‘s expert, who was the head of the Boston police department‘s ballistics unit at the time of his testimony, based his opinion on his knowledge of firearms, his observations of gunshot wounds to other individuals, the autopsy report, and photographs of the victim‘s injuries. As the bases for his opinion, Vickers pointed to, among other things, the bullet‘s path, the type of laceration, and the presence of bullet fragments rаther than an intact bullet.
We note that, on cross-examination, Vickers testified that he could not rule out that numerous other types of firearms, including an automatic weapon, could have been used as the murder weapon. In response to a question, however, he did conclude that, based on the victim‘s injuries, a rifle had not been used. In other words, Vickers did not express any view on whether “a particular firearm” or type of firearm had been used; rather, he “offer[ed] an opinion . . . that narrow[ed] the scope of possible firearms” that could have been used as the murder weapon. Commonwealth v. Pytou Heang, 458 Mass. 827, 848 (2011). Given the expert‘s qualifications and experience, the judge did
The defendant also argues that the expert‘s testimony was unduly prejudicial to him because it potentially connected the firearm stolen by Anderson and Tate to the shooting. We disagree. The fact that a .357 magnum revolver is a “perfect example” of a high velocity weapon merely demonstrated why the expert‘s testimony was particularly relevant.22 See Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 187-188 (2013) (“the measure of prejudice is not whether the evidence simply is adverse to the party against whom it is offered“).
8. Review under G. L. c. 278, § 33E.
Finally, we have reviewed the entire record and discern no basis upon which to exercise our extraordinary authority under
Conclusion. For the foregoing reasons, the order denying the motion for a new trial is affirmed. The judgment as to the
So ordered.
Notes
The judge further instructed that only the “acts and statements occurring while the joint venture exists or made when the joint venturers were acting to conceal the crime, and that are relevant to the joint venture,” could be so admissible. Although it would have been more accurate to instruct that only the acts and statements made “in furtherance of,” as opposed to “relevant to,” the joint venture were admissible, see Commonwealth v. Wilkerson, 486 Mass. 159, 175 (2020), the instructions nonetheless conveyed that only certain acts and statements -- those that were a part of the joint venture -- could be admissible against the defendant. See Commonwealth v. Kelly, 470 Mass. 682, 697 (2015) (“We do not require that judges use particular words, but only that they convey the relevant legal concepts properly“).“[B]efore you can consider any evidence of acts or statements allegedly made by one of the participants against the defendants here under a theory of joint venture, you first need to determine whether the Commonwealth has presented sufficient evidence which is independent of those acts or statements to support a fair inference that there was a joint venture between the participants and the defendants. . . . If you find that there was sufficient evidence to support a fair inference that a joint venture existed, then you can consider evidence of the acts and statements of each of the participants against the defendants.”