457 Mass. 461 | Mass. | 2010
Lead Opinion
In February, 2006, a jury convicted the defendant Lionel Rodriguez of murder in the first degree on the theory of extreme atrocity or cruelty.
1. Background. The jury could have found the following facts. On the evening of February 15, 2001, Marshall’s mother, Donna Medeiros, met some friends, including Elizabeth Car-dona, David Amaral, Tony Ramos, Kevin Rose, and the victim, at a pub in New Bedford. After closing, at about 2 a.m. on February 16, the group went to Medeiros’s nearby apartment on Bluefield Street.
After spending some time at Medeiros’s home, Kevin Rose decided to leave, departing through the kitchen door. While waiting outside, he saw the victim, Marshall, Tirado, and “a girl” leave through the kitchen door. The men were arguing.
The victim, accompanied by Ramos, went over to the victim’s automobile, a Toyota Camry. The victim got into the driver’s seat and Ramos entered the front passenger side. As the victim started to drive away, Tirado pulled out a large knife and slashed the front driver’ s-side tire of the Camry. The tire went flat. After slowly driving the Camry down the street a short distance, the victim got out of the vehicle and again argued with Tirado.
Ramos opened the trunk of the Camry to get a spare tire. Amaral, who had entered his automobile, got out to assist him.
While the victim lay on the ground, Rose observed Tirado repeatedly kick him in the torso area. She saw Marshall twice kick the victim’s right leg. She saw Badillo kick the victim in the head. In addition, she saw Smith (who had arrived in Rodriguez’s vehicle) and Rodriguez each kick the victim repeatedly. She also saw that the victim was struck with a tire iron, but she did not see who struck him. Rose testified that no one else had been involved and stated that Torres did not strike the victim.
When police arrived, they found the victim lying on his back in the street, unconscious and gasping for air. There was blood coming from the back of his head. There was a crowd of about thirty people in the vicinity. Paramedics arrived within minutes and transported the victim to a hospital. He died later that day as a result of acute massive intra-abdominal hemorrhage due to blunt force trauma.
Forensic evidence linked Marshall to the beating of the victim. Deoxyribonucleic acid (DNA) testing revealed that blood consistent with the victim’s was found on boots worn by Marshall on February 16.
The defendants did not testify. Their trial counsel, through cross-examination, attempted to demonstrate that Rose was a drunk and lying teenager. Based on Rose’s testimony, Rodriguez’s trial counsel argued that she was a less than credible witness also on account that she helped a murderer (namely, Tirado) flee and hide, and had sexual relations with him while doing do.
Rodriguez’s trial counsel sought to establish a defense of mis-identification. He elicited from Medeiros, Amaral, and Kevin Rose that they did not see Rodriguez on February 16, and argued that Rose’s identification of Rodriguez was unreliable because although she previously had met him, she did not “know” him. Rodriguez’s trial counsel also called two police officers who testified that they had interviewed Kevin Rose after arriving to the scene, and he had not implicated Rodriguez.
Marshall’s trial counsel argued that the injuries to the victim allegedly from Marshall did not contribute to the victim’s death. The argument derived from testimony Marshall’s trial counsel elicited during the cross-examination of the medical examiner, who opined that the abrasions to the victim’s knees were not fatal and could not have contributed to the cause of death.
The empanelment process occurred over a two-day period. The judge first addressed the venire as a group and then engaged in individual questioning. See Commonwealth v. Young, 401 Mass. 390, 398 (1987), overruled in part on another ground in Commonwealth v. Ramirez, 407 Mass. 553, 555 (1990) (requiring individual voir dire when requested by defendant and when defendant and victim are members of different racial groups). During the first day of empanelment, the prospective juror in question (juror) was asked, as were all prospective jurors, whether any family member or close friend had ever been accused of, been a witness to, or the victim of a violent crime. The juror stated that her son, who was fifteen years of age, had been caught stealing and was involved with the Juvenile Court in Attleboro.
After asking the juror to step aside, the judge asked whether there was an objection to him discharging the juror for cause. Marshall’s trial counsel had no objection, and the prosecutor affirmatively requested that the juror be removed for cause. Counsel for Rodriguez, however, objected because the juror was “the only Hispanic juror.” The judge stated that he would explore the matter further and resumed questioning of the juror.
Further questioning of the juror disclosed that her son received one and one-half years of probation and had to pay restitution. Her son was still “on probation” and was dismissed from school as a result of the incident. Although the juror thought that the
The prosecutor then challenged the juror for cause because she failed to state her experience and her son’s experience with the court system as called for by the jury questionnaire form. The prosecutor stated, “[I]t would be one thing if she just [had] left [the form] blank and maybe overlooked it, but she [expressly checked] none [after having been expressly asked].”
Subsequently, the prosecutor directed peremptory challenges at five jurors, including the juror in question. Counsel for Rodriguez asked to be heard, but the judge told him to wait until the clerk had refilled the seats. Counsel for Marshall stated that Rodriguez’s trial counsel had an issue with the juror, and inquired if she were leaving. The judge remarked, “She’s already gone.” When Rodriguez’s trial counsel was finally given an opportunity to speak, he indicated that he would have objected to the discharge of the juror and explained: “It may be ineffective assist-
“Only if your Honor is making a finding that there’s been a foundation laid for such a challenge. . . . For the record, I’m not aware that she’s the only Hispanic sumamed person in the venire. We haven’t gone through the rest of the names. I make note of the fact that the Commonwealth specifically asked that she be excused for cause at the side bar, and based that request on the fact that the jury questionnaire that she filled out, specifically the portion that the court did draw to her attention, that it indicates describe briefly any involvement, past or present, as a party or a victim in a civil or criminal case by you or any member of your immediate family. That she had checked off apparently having read that statement, ‘none.’ She then proceeded to tell the court both about her victimization in the case in Suffolk County, as well as the fact that her son had been prosecuted by my office in the Juvenile Court in Attleboro. And while I do not believe the court has yet made the foundation to indicate that there is a legitimate question about the challenge, I state for the record that the Commonwealth exercised its peremptory on that basis. Specifically state that it did not make the challenge on any racial grounds whatsoever.”
The following exchange then took place:
The judge: “Do you wish to be heard further on the foundational requirements under the Soares decision?”
Counsel for Rodriguez: “[A]ll I would say at this juncture that it was the only Hispanic juror that I saw seated, that we have seated so far, and just for that reason.”
The judge: “I’m not able to make that finding. I’m not making that finding that’s the only ‘Hispanic’ juror. I have not examined the venire as it currently exists. If you want me to, I will.”
Counsel for Rodriguez: “Judge, I would —”
*470 The judge: “Beyond that, even if I did make the foundational requirement, based on the explanation that’s just been given by the Commonwealth, I’m not inclined to revisit the issue of the peremptory challenge of [the juror].”
Counsel for Rodriguez asked the judge to “note [his] objection.” The judge stated, “My ruling is that the peremptory challenge stands.” By declining, based on the prosecutor’s explanation, to revisit his approval of the peremptory challenge, the judge implicitly found the prosecutor’s stated reason to be credible. See Commonwealth v. Benoit, 452 Mass. 212, 231-232 (2008) (Cowin, J., dissenting). Jury empanelment continued the following day.
“The use of peremptory challenges to exclude prospective jurors solely because of bias presumed to derive from their membership in discrete community groups is prohibited both by art. 12, see Commonwealth v. Soares, [supra], and the equal protection clause, see Batson v. Kentucky, [supra].” Commonwealth v. Harris, 409 Mass. 461, 464 (1991).
A trial judge should adhere to a certain procedural process in evaluating whether the exercise of a peremptory challenge is
“An explanation is adequate if it is ‘clear and reasonably specific,’ ‘personal to the juror and not based on the juror’s group affiliation,’ . . . and related to the particular case being tried.” Id. at 464-465, quoting Commonwealth v. Burnett, 418 Mass. 769, 771 (1994). “Challenges based on subjective data such as a juror’s looks or gestures, or a party’s ‘gut’ feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination.” Commonwealth v. Maldonado, supra at 465. “An explanation is genuine if it is in fact the reason for the exercise of the challenge.” Id. The mere denial of an improper motive is insufficient to establish genuineness. Id. “An explanation that is perfectly reasonable in the abstract must be rejected if the judge does not believe that it reflects the challenging party’s thinking.” Id.
In this case, the Commonwealth contends that Rodriguez’s trial counsel failed to establish a prima facie showing that the peremptory challenge of the juror was improper. Technically, the Commonwealth is correct. However, the judge foreclosed Rodriguez’s trial counsel from doing so by refusing him an opportunity to be heard immediately after the challenge was
We also conclude it is reasonable to treat the situation as one in which Rodriguez’s trial counsel had sufficiently rebutted the presumption of propriety. Although Rodriguez’s trial counsel was not given the opportunity to specify promptly the nature of his objection, he had earlier made it clear that he objected to the removal of the sole Hispanic juror. Nothing had occurred subsequently that would have influenced him to change his position, that is, there were no other Hispanic jurors seated. When he eventually was permitted to state his objection, Rodriguez’s trial counsel restated the same objection he had earlier voiced (that the juror was the sole Hispanic juror), despite the fact that the juror was “already gone.” The objection at that point in time was entirely permissible. See Commonwealth v. Harris, supra. That another day of empanelment was (or may be) on the horizon does not foreclose inquiry at the time of the objection, particularly in circumstances where there was no evidence that other Hispanic persons were (or would be) included in the venire. See id. at 463-464, 466 n.3 (defendant’s decision to not “re-do empanelment” as offered by prosecutor was reasonable in light of fact that there “was no real prospect that there would be any [black persons] in a second venire” and did not bar Soares claim). It was only through the judge’s haste to empanel a jury that he did not take note of what was obvious.
We now consider whether the prosecutor provided “a neutral explanation establishing that the challenge is unrelated to the prospective juror’s group affiliation.” Commonwealth v. Harris, supra at 464. While it appears from the judge’s statements that he implicitly credited the prosecutor’s explanation for exercising the challenge, the judge did not follow the proper procedure and expressly make the requisite finding that, or otherwise expressly explain why, the prosecutor “had met [his] burden of establishing an adequate, race-neutral explanation that was the
The prosecutor’s reason for challenging the juror was specific to the juror and was unrelated to the fact that she was Hispanic. The prosecutor made it clear from the outset that he wanted the juror removed for cause based on the juror’s experiences in the court system. After further questioning of the juror, the prosecutor did not change his position but indicated what he found troubling, namely, not only the juror’s failure to reveal her own and her son’s experiences in the court system but also her express indication to the contrary on the jury questionnaire. The prosecutor provided this same reason when he later challenged the juror. While the judge acted within his discretion in not permitting the juror’s removal for cause, based on his dialogue with and assessment of the juror, the inquiry concerning whether the prosecutor permissibly challenged the juror is an altogether different matter. The prosecutor’s concern regarding, essentially, the ability of the juror to follow simple instructions, in the context of a trial alleging murder in the first degree and involving two defendants, was sufficiently adequate.
That the prosecutor’s explanation was also genuine can be
ii. Jury instructions on identification. Rodriguez argues that a substantial likelihood of a miscarriage of justice occurred because his trial counsel did not request a jury instruction on an “honest but mistaken” identification (by Rose) as set forth in Commonwealth v. Pressley, 390 Mass. 617, 619-620 (1983). He further maintains that, based on the evidence, the judge, on his own initiative, should have given the instruction. Rodriguez points out that the only evidence implicating him as having been involved in the beating of the victim was the testimony of Rose, who had been intoxicated at the time and was not well acquainted with him and, consequently, could have been mistaken in her identification of him.
There are instances where “[fjaimess to a defendant compels the trial judge to give an instruction on the possibility of an honest but mistaken identification when the facts permit it and when the defendant requests it.” Id. at 620. Here, Rodriguez’s trial counsel requested an instruction on identification, but it did not include the words “honest but mistaken.” “In the absence of a request, a judge is not required to instruct the jury on ‘honest mistake.’ ” Commonwealth v. Vardinski, 438 Mass. 444, 457
The identification instruction given by the judge essentially was the one requested by Rodriguez’s trial counsel and the one approved as a model in Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (1979) (Appendix).
iii. Autopsy photographs and testimony of medical examiner. Rodriguez argues that the admission of several autopsy photographs, as well as certain testimony of the medical examiner, was erroneous and created a substantial likelihood of a miscarriage of justice. As has been noted, see note 13, supra, the medical examiner who conducted the victim’s autopsy, Dr. Leonard Atkins, was unavailable to testify at trial. In his absence, Dr. Richard John Evans testified. Rodriguez’s trial counsel objected to the admission of the autopsy photographs of the victim (there were seven photographs which depicted the victim’s external injuries only), arguing that they were inadmissible because they were inflammatory and insufficiently authenticated as Dr. Evans did not personally conduct or observe the victim’s autopsy. The
The Commonwealth concedes that the autopsy photographs were admitted “without proper foundation.” “Photographs usually are authenticated directly through competent testimony that the scene they show is a fair and accurate representation of something the witness actually saw.” Commonwealth v. Figueroa, 56 Mass. App. Ct. 641, 646 (2002), and cases cited. Alternatively, authenticity may be established circumstantially. Id. See Commonwealth v. LaCorte, 373 Mass. 700, 704 (1977), quoting W.B. Leach & PJ. Liacos, Massachusetts Evidence 265 (4th ed. 1967) (“[A] thing offered in evidence genuinely must be what its proponent represents it to be. Its authenticity must be stipulated or else proved like any other fact. ‘Such proof of authenticity usually takes the form of testimony of a qualified witness either [1] that the thing is what its proponent represents it to be, or [2] that circumstances exist which imply that the thing is what its proponent represents it to be’ ”); Mass. G. Evid. § 901 (2010). Here, neither foundational requirement was satisfied.
The Commonwealth contends that Rodriguez was not preju
The autopsy photographs were not cumulative of other evidence. To the extent that Dr. Evans testified about what the photographs depicted, he could not have done so without the photographs themselves because he had not been present at the victim’s autopsy. While the external injuries depicted in the photographs were also noted in Dr. Atkins’s chart, the admission of Dr. Atkins’s chart, as will be discussed, was erroneous. See Commonwealth v. Nardi, 452 Mass. 379, 392-393 (2008). A paramedic’s testimony concerning the nature of the victim’s external injuries spoke only to his observations of various “bruises” on different parts of the victim’s body. The photographs, in contrast, depict more than bruises, particularly with regard to the victim’s face, such as measurable swelling and patterns such as parallel lines on the forehead area (made possibly by footwear tread, as opined by Dr. Evans). Indeed, the judge acknowledged that the photographs were “gruesome,” a characterization with which we agree based on our own examination of them. This is a case where the testimony concerning the victim’s external injuries does not accurately and fully describe what the photographs disturbingly and graphically depict. The severity of the assault on the victim cannot be fully comprehended until the photographs are viewed, and we cannot say that the photographs did not have an impact on the jury.
Although the photographs did not bear on Rodriguez’s defense of misidentification, they were significant to the Commonwealth in establishing its burden of proof. Because the jury rejected the theory that the victim’s death was deliberately premeditated, the Commonwealth had to prove that the victim’s death was committed with extreme atrocity or cruelty. The facts that the victim
The question of prejudice, as to the erroneous admission of the photographs, is a close one. We need not resolve the issue, however, because there is no doubt that the improper admission of the photographs, together with the improper admission of testimony and evidence during the examination of Dr. Evans, as argued by Rodriguez, created a substantial likelihood of a miscarriage of justice.
As an initial matter, there is no merit to Rodriguez’s argument that Dr. Evans’s testimony concerning the victim’s cause of death was inadmissible. Before he gave his opinion, Dr. Evans stated that he had reviewed Dr. Atkins’s autopsy report, including a toxicology report, a chart depicting the victim’s external injuries, and autopsy photographs. Dr. Evans also reviewed a case investigation sheet, medical records that were made available to Dr. Atkins, identification forms, and police reports. Dr. Evans’s testimony concerning the victim’s cause of death was based on his review of the aforesaid materials and reflected his own opinion. His testimony was permissible, as we have held that a “substitute medical examiner could offer an opinion as to
The same cannot be said of other parts of Dr. Evans’s testimony. The Commonwealth concedes that, during his direct examination, Dr. Evans should not have been permitted to testify as to the factual findings of Dr. Atkins’s autopsy report pertaining to the external and internal injuries to the victim. We have cautioned that “the substitute medical examiner, as an expert witness, is not permitted on direct examination to recite or otherwise testify about the underlying factual findings of the unavailable medical examiner as contained in the autopsy report.” Commonwealth v. Avila, supra at 762. See Commonwealth v. Taylor, supra; Commonwealth v. Nardi, supra at 394. In addition, Dr. Atkins’s chart depicting the victim’s external injuries was erroneously admitted. See Commonwealth v. Pena, 455 Mass. 1, 13 & n.13 (2009). Because Rodriguez did not object to this testimony of Dr. Evans, or to the admission of Dr. Atkins’s chart, we review to determine whether the erroneous admission of this evidence created a substantial likelihood of a miscarriage of justice. Commonwealth v. Wright, 411 Mass. 678, 682 (1992). We must look to the trial as a whole. Commonwealth v. Nardi, supra at 395.
The Commonwealth asserts that no substantial likelihood of a miscarriage of justice occurred because Rodriguez’s defense was misidentification, and because Rodriguez did not contest the victim’s manner or cause of death, or that the death had been inflicted with extreme atrocity or cruelty. The improperly admitted medical evidence, like the autopsy photographs, however, took on great significance in establishing that the murder was committed with extreme atrocity or cruelty, on which the Commonwealth bore the burden of proof. We are not substantially confident that, in the absence of the improperly admitted medical evidence and autopsy photographs, the jury verdict would have
As with our analysis concerning the improper admission of the autopsy photographs, the improperly admitted medical evidence was not cumulative of other admissible evidence. Cf. Commonwealth v. Avila, supra at 763 (unpreserved error under Nardi did not result in substantial likelihood of miscarriage of justice because erroneously admitted testimony was “distinctly cumulative”); Commonwealth v. Francis, 450 Mass. 132, 140 (2007). Dr. Evan’s factual testimony about the victim’s external injuries came from his examination of the inadmissible autopsy photographs and from Dr. Atkins’s chart. As has been explained, the photographs were more detailed and graphic than the testimony that otherwise came in concerning the external injuries to the victim. In addition, Dr. Evans’s testimony about the victim’s injuries, as gleaned from Dr. Atkins’s chart, was not entirely cumulative of his factual testimony describing the victim’s injuries based on the autopsy photographs.
Dr. Evans’s testimony concerning the findings of Dr. Atkins’s internal examination of the victim also was not cumulative of any other evidence at trial. Further, the details about Dr. Atkins’s internal examination findings, such as the fact that the internal abnormalities to the victim were largely confined to his abdominal area, and with respect to the types and number of blows to the victim, pertained not only to the cause of the victim’s death but also to whether the victim’s death resulted from injuries inflicted with extreme atrocity or cmelty. The prosecutor argued as much during his closing argument. Unlike other cases, this case involves only extreme atrocity or cruelty and cannot be upheld on an alternate theory of murder, such as deliberate premeditation. See, e.g., Commonwealth v. Hensley, 454 Mass. 721, 733-734 (2009).
Further, Marshall emphasized the details of Dr. Atkins’s internal examination findings to support his defense that he only kicked the victim in the knee and the abrasions to the knee did not contribute to the victim’s death. The autopsy findings of Dr. Atkins became important to Marshall because there was
In this case, we conclude that the erroneous admission of the autopsy photographs, chart, and testimony of Dr. Evans concerning the factual findings made by Dr. Atkins, considered together, created a substantial likelihood of a miscarriage of justice. We cannot say with substantial confidence that, in the absence of the improperly admitted evidence, the jury verdict on the issue whether the murder was committed with extreme atrocity or cruelty would have been the same. See Commonwealth v. Rud-dock, supra.
The evidentiary errors, however, pertain only to Rodriguez’s conviction based on murder in the first degree under the theory of extreme atrocity or cruelty, and involve only the question whether the murder was committed with extreme atrocity or cruelty. We have reviewed the record and have found that there was sufficient evidence that Rodriguez committed (individually or as a joint venturer) an unlawful killing, and that he intended, at least, to cause grievous bodily harm, the so-called second prong of malice, and the jury verdict established that Rodriguez was guilty of murder. In these circumstances, all the necessary elements of murder in the second degree have been proved beyond a reasonable doubt. See Commonwealth v. Gilbert, 447 Mass. 161, 171-172 (2006). “If a conviction of murder in the first degree cannot stand because of error or because of the
iv. Relief pursuant to G. L. c. 278, § 33E. Although Rodriguez does not raise a claim seeking relief pursuant to G. L. c. 278, § 33E, we are obligated nonetheless to review the entire record. Having done so, we see no reason under G. L. c. 278, § 33E, to order a new trial or to reduce the verdict further.
b. Marshall’s appeal. The indictment charging Marshall as an accessory before the fact was framed under G. L. c. 274, § 2,
By moving for a required finding of not guilty, Marshall preserved his claim of error. The well-established principles governing a motion for a required finding are set forth in Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), and are not in dispute. The issues we confront are legal, namely, whether, under G. L. c. 274, § 2, the criminal actions of an accessory before the fact encompass the actions of an “aider,” and whether the evidence of being an accessory before the fact was sufficient to satisfy the Latimore standard.
As was recently noted in Commonwealth v. Zanetti, 454 Mass. 449, 463 (2009), there has been confusion over the years with respect to the different formulations of accomplice liability. There is no question that under G. L. c. 274, § 2, an accessory
In construing G. L. c. 274, § 2, we are guided by the familiar standards of statutory interpretation. “Where the language of a statute is plain, it must be interpreted in accordance with the usual and natural meaning of the words.” Gurley v. Commonwealth, 363 Mass. 595, 598 (1973). Absent clear indication to the contrary, statutory language is to be given its “ordinary lexical meaning.” Surrey v. Lumbermens Mut. Cas. Co., 384 Mass. 171, 176 (1981). Here, the plain meaning of “aid[]” is to provide actual assistance. See Webster’s Third New Int’l Dictionary 44 (1995). The term, in context, must be understood to require some degree of knowing participation (alone or with others) in the commission of the underlying felony. See Commonwealth v. DiStasio, 297 Mass. 347, 360-361, cert, denied, 302 U.S. 683 and 302 U.S. 759 (1937) (evidence of participation in murder required on charge of murder, but not on charge of accessory before the fact). See also Commonwealth v. Zanetti, supra at 466-468. In contrast, one who engages in “counselling, hiring or otherwise procuring” a felony to be committed need not participate in committing the felony, although that person may be present during the felony and must have participated in an act, as opposed to mere acquiescence, that led up to or in some way contributed to the occurrence of the felony. See Commonwealth v. DiStasio, supra. See also Commonwealth v. Morrow, 363 Mass. 601, 608-609 (1973). The difference is that the actions punishable by an accessory before the fact are limited by the express language of G. L. c. 274, § 2, to actions that occurred “before the fact,” that is, prior to the commission of the felony. To construe the statute otherwise would render the words “before the fact” superfluous. Banushi v. Dorfman, 438 Mass. 242, 245 (2002) (“We do not read a statute so as to render any of its terms meaningless or superfluous”).
That the actions of an aider and an accessory before the fact involve different acts and different crimes is further understood
We are mindful that our case law has conflated these two forms of accomplice liability in the past. Confusion arose, in part, in connection with the genesis of G. L. c. 274, § 2. Because of common-law classifications that defined parties to a felony in terms of principals in the first or second degree and accessories before and after the fact, and resulting procedural difficulties, legislative action became necessary, and §§ 2 and 3
To complicate further the subject matter of accomplice liability, the joint venture formulation, as discussed in Commonwealth v. Zanetti, supra at 461-464, derived from the language of G. L. c. 274, § 2. Based on the recent evolution of our case law on joint venture, “renounc[ing] the false distinction between a principal and an accomplice,” Commonwealth v. Zanetti, supra at 464, there is no longer a need to determine whether a defendant is a joint venturer as defined in Commonwealth v. Bianco, 388 Mass. 358, 366, S.C., 390 Mass. 254 (1983), and we have instead adopted an aiding and abetting analysis and formulation, Commonwealth v. Zanetti, supra at 467. That said, although this change applied prospectively, it underscores the fact that, for culpability under aiding and abetting, there must be some level of actual participation of a defendant (alone or with others) in the commission of a crime, an element not required for that portion of G. L. c. 274, § 2, applicable to accessories before the fact whose conduct involves actions done at a different time, namely, before the commission of the felony.
Under our construction of G. L. c. 274, § 2, the indictment charging Marshall improperly defined the offense on which he was tried — accessory before the fact. While this may have
So ordered.
On the charge of murder in the first degree, the Commonwealth also proceeded on the theory of deliberate premeditation, which the jury rejected. In addition to the charge of murder in the first degree, the jury were permitted to consider whether the defendant Lionel Rodriguez committed murder in the second degree, voluntary manslaughter, involuntary manslaughter, assault and battery by means of a dangerous weapon, or assault and battery. On all theories of murder, the Commonwealth proceeded against Rodriguez for causing the death of the victim either individually or as a joint venturer. The verdict did not specify whether the jury found him guilty individually or as a joint venturer.
In addition, the jury were permitted to consider whether Ryan Marshall was an accessory before the fact to murder in the second degree.
Others were indicted for their alleged involvement in the death of George R. Carpenter. Robert Tirado, Orlando Badillo, and Dennis Smith were charged with murder in the first degree, and Jonathan Torres was indicted as an accessory before the fact to murder in the first degree. Tirado and Torres were tried first; Tirado was convicted of murder in the second degree, and Torres was acquitted. After being tried together, both Badillo and Smith were convicted of murder in the second degree. Tirado’s conviction was affirmed by the Appeals Court, see Commonwealth v. Tirado, 65 Mass. App. Ct. 571, 579 (2006), as was (in an unpublished memorandum and order pursuant to its rule
A defendant convicted as an accessory before the fact to murder in the first degree is entitled to review under G. L. c. 278, § 33E, because it is a capital crime with the same punishment as that for murder in the first degree. See Commonwealth v. Jones, 432 Mass. 623, 624 n.l (2000); Commonwealth v. Angiulo, 415 Mass. 502, 507-510 (1993).
Donna Medeiros’s apartment was part of a housing complex. Each building in the complex contained six housing units. Medeiros’s apartment was in the middle of the units of her building. She lived in a two-story unit, with a kitchen and living room on the first floor, and three bedrooms and a bathroom on the second floor. The front door to her unit faced in the direction of Matthew Street, which was adjacent to Bluefield Street, and the back door faced in the direction of Dartmouth Street, which essentially ran parallel to Bluefield Street. Marshall, who was then eighteen years of age, lived with his mother in the apartment, having his own bedroom upstairs.
Because Medeiros’s friend Kevin Rose and Marshall’s girl friend Rebecca Rose have the same last name, we refer to Kevin Rose by using his full name and to Rebecca Rose as Rose.
There was testimony that both the victim and Tirado were large men.
David Amaral left Medeiros’s apartment by the kitchen door with Elizabeth Cardona. As Amaral went to his automobile, Cardona saw Marshall and Medeiros arguing, and stayed behind. Marshall was swearing at his mother, directing her to go back inside the apartment. Although Medeiros heard some commotion outside, she testified that Marshall and Cardona would not let her go outside her home.
Rose made this observation. Kevin Rose testified that one vehicle, a sport utility vehicle, arrived.
Amaral told police that ten males, who wore hooded sweatshirts, had been involved in beating up the victim. Kevin Rose testified that between four to six people struck the victim. Heather Lawrence asserted her privilege under the Fifth Amendment to the United States Constitution at trial and did not testify.
Rose had lied to the police, saying that she had not seen anything. Then, her mother drove her and Tirado to a hotel “to get away from police.” Rose and Tirado stayed there for a couple of days, but subsequently, Rose went to police and told them what she had observed. Also, from photographic arrays, Rose identified Marshall, Rodriguez, Smith, Badillo, and Tirado as having been involved in the beating of the victim.
At trial, Rose testified that she initially lied to police because she feared retaliation. During cross-examination, Rose stated that Lawrence had threatened her in the event that she were to “snitch on” Lawrence. There also was evidence that, while speaking with police, Rose had drawn a diagram of the scene of the beating and on it had written the names of the assailants, but did not place Rodriguez’s name on the diagram.
The medical evidence concerning the victim’s cause of death came from Dr. Richard John Evans, a medical examiner and forensic pathologist. As will
During cross-examination, Rose admitted to having sexual relations with Tirado.
There is no dispute that Hispanic persons are members of a racial or ethnic group protected under art. 1 of the Declaration of Rights, as amended by art. 106 of the Amendments to the Massachusetts Constitution, see Commonwealth v. Vann Long, 419 Mass. 798, 807 n.9 (1995), and under the equal protection clause of the Fourteenth Amendment to the United States Constitution. See Castaneda v. Partida, 430 U.S. 482, 495 (1977).
There is nothing in the record that explains what the juror meant by this statement.
The juror’s questionnaire is not available for examination because, like the questionnaires of all potential jurors not seated within the jury, it was destroyed after empanelment pursuant to G. L. c. 234A, § 23.
The analysis under the State and Federal Constitutions appears to be the same, see Commonwealth v. Benoit, 452 Mass. 212, 217-218 & n.6 (2008); Commonwealth v. Vann Long, 419 Mass. 798, 806 (1995), and Rodriguez does not argue to the contrary.
As has been set forth, the judge merely stated, “[E]ven if I did make the foundational requirement, based on the explanation that’s just been given by the Commonwealth, I’m not inclined to revisit the issue of the peremptory challenge of [the juror].”
The instruction properly excluded language permitting the jury to take into account “the strength of the identification” in determining its accuracy. See Commonwealth v. Santoli, 424 Mass. 837, 845 (1997), quoting Commonwealth v. Rodriguez, 378 Mass. 296, 311 (1979) (Appendix).
We reject Rodriguez’s interpretation of this language as bearing only on the issue of determining the veracity of the witness.
The judge instructed the jury that they were not to be influenced by the graphic or gruesome nature of the photographs, but rather were to limit their use of the photographs to discerning the nature of the victim’s injuries. There is no argument on appeal that the photographs were inflammatory.
The chart consists of two pages. One page has what appears to be a preprinted diagram of a male body, showing both a view of the front and the back of the body. On this page, there are handwritten notes made by Dr. Atkins indicating where external injuries to the victim appeared on his body. Some of the notes also state the exact measurement of the injury. On the second page, a similar diagram and notations exist, but they are done in connection with four different views of a head (front, back, left side, and right side).
That the Commonwealth understood the significance of the photographs is reflected in the prosecutor’s statements to the judge when he argued that they be admitted: “These photographs clearly depict the nature of the injuries, and the nature of the injuries goes right to the issue of whether or not they were inflicted with extreme atrocity [or] cruelty."
The trial in this case occurred in 2006. This is Rodriguez’s direct appeal. He receives the benefit of our decision in Commonwealth v. Nardi, 452 Mass. 379 (2008), and related precedents because his case was awaiting appellate review when those cases were decided. See Commonwealth v. Mercado, 456 Mass. 198, 211 n.24 (2010).
For instance, there was no autopsy photograph depicting abrasions to both of the victim’s cheeks (only one cheek was shown), or the laceration to the victim’s lower lip, as was noted on Dr. Atkins’s chart and described by Dr. Evans during his direct examination.
During oral argument the prosecutor was asked whether there was any preference between a reduction in the verdict to murder in the second degree or the ordering of a new trial. We have not received any indication of a preference.
General Laws c. 274, § 2, as appearing in St. 1973, c. 529, § 1, reads:
“Whoever aids in the commission of a felony, or is accessory thereto before the fact by counselling, hiring or otherwise procuring such felony to be committed, shall be punished in the manner provided for the punishment of the principal felon.”
General Laws c. 277, § 79, which prescribes the form of an indictment, provides as follows:
“Accessory before the fact. (Under Chap. 274, Sec. 2) — Charge principal felony and proceed: That A.B., before the said felony was committed, did incite, procure, aid, counsel, hire or command the said (principal) the said felony to do and commit.”
The indictment against Marshall reads, in pertinent part:
“THE JURORS for the said Commonwealth on their oath present, That Robert Tirado and Orlando Badillo and Dennis Smith and Lionel Rodriguez, on or about February 16, 2001, at New Bedford, in the County of Bristol aforesaid, did assault and beat George R. Carpenter with intent to murder him, and by such assault and beating did kill and murder the said George R. Carpenter.
“That Ryan Marshall, before the said felony was committed, did*483 incite, procure, aid, counsel, hire or command the said Robert Tirado and Orlando Badillo and Dennis Smith and Lionel Rodriguez, the said felony to do and commit.”
General Laws c. 274, § 3, addresses a series of procedural issues that arise in connection with the prosecution of one who “counsels, hires or otherwise procures a felony to be committed.” See Commonwealth v. Ortiz, 424 Mass. 853, 857 & n.5 (1997). The statute also expressly permits one who “counsels, hires or otherwise procures a felony to be committed” to be indicted as an accessory before die fact or to be indicted on “the substantive felony.” G. L. c. 274, § 3.
In future indictments charging guilt as an accessory before the fact, such indictments should set forth that “A.B., before the said felony was committed, did counsel, hire or otherwise procure the said (principal) the said felony to do and commit.”
Conduct underlying a charge of accessory before the fact may be charged as aiding and abetting, as formulated in our suggested jury instruction set forth in Commonwealth v. Zanetti, 454 Mass. 449, 470 (2009) (Appendix), for the offense of aiding and abetting is broader than the offense of being an accessory before the fact. In such cases, there would be no need to charge a
We need not address Marshall’s remaining arguments because he cannot be retried as an accessory before the fact.
Concurrence Opinion
(concurring, with whom Spina, J., joins). I agree with the result reached by the court in these cases. I write separately to express again my concern about the continued use of peremptory challenges. See Commonwealth v. Maldonado, 439 Mass. 460, 468 (2003) (Marshall, C.J., concurring). I remain persuaded that, “rather than impose on trial judges the impossible task of scrutinizing peremptory challenges for improper motives,” Commonwealth v. Calderon, 431 Mass. 21, 29 (2000) (Lynch, J., dissenting), it is time either to abolish them entirely, or to restrict their use substantially.