Commonwealth v. Parker , 481 Mass. 69 ( 2018 )

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revision and are superseded by the advance sheets and bound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
SJC-10988
COMMONWEALTH vs. HAROLD PARKER.
Suffolk. September 12, 2018. - December 7, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Kafker, JJ.
Homicide. Kidnapping. Search and Seizure, Clothing, Exigent
circumstances. Practice, Criminal, Capital case, Motion to
suppress, New trial, Discovery, Argument by prosecutor,
Assistance of counsel. Evidence, Chain of custody.
Indictments found and returned in the Superior Court
Department on December 20, 2001.
A pretrial motion to suppress evidence was heard by Patrick
F. Brady, J., and the cases were tried before him; and motions
for a new trial and for posttrial discovery, filed on September
1, 2016, were considered by Christine M. Roach, J.
Richard J. Fallon for the defendant.
Helle Sachse, Assistant District Attorney (Patrick M.
Haggan, Assistant District Attorney, also present) for the
Commonwealth.
BUDD, J. On the morning of November 4, 2001, the body of
the victim, a twenty-one year old woman, was discovered in the
Charles River near the Boston side of the Boston University
2
footbridge. The defendant, Harold Parker, was convicted as a
joint venturer of kidnapping and murder in the first degree in
connection with the death.1
We consolidated his direct appeal with his appeal of the
denial of his motions for a new trial and for posttrial
discovery, and now affirm. Further, we decline to grant
extraordinary relief pursuant to G. L. c. 278, § 33E.
Background. We summarize the facts the jury could have
found, reserving certain details for discussion of specific
issues. In the fall of 2001, an area adjacent to the main
entrance to a public transit station in the Harvard Square area
of Cambridge, known as "the Pit," was a gathering place for an
assortment of young people, a number of them homeless. The
victim and her boyfriend, Gene Bamford, were among those who
congregated there.
In late October, 2001, the defendant and Ismael Vasquez,2
who held themselves out as senior members of the "Crips" gang,
1 Of the three codefendants, brothers Ismael Vasquez and
Luis Vasquez were similarly charged and convicted, with Luis
additionally being charged with and convicted of aggravated rape
of the victim, and Scott Davenport was charged and convicted of
murder in the first degree. Commonwealth v. Vasquez, 462 Mass.
827, 828 n.3 (2012).
2 As Ismael Vasquez and his codefendant brother Luis Vasquez
share a last name, hereafter we use their first names.
3
recruited prospective members at the Pit, including the victim,
Bamford, Ana White, and Lauren Alleyne.
After an initiation ceremony, which took place in a nearby
cemetery on Halloween night, Ismael, the defendant, and Bamford
explained to the assembled group that they would be sent on
"missions" to rob people. If a member failed to complete the
mission, or otherwise failed to obey the leaders, that member
would be given a "violation," that is, a beating. A third
violation would result in that member's death. If the offending
member could not be found, the gang would kill someone close to
that member.
Beginning that night, members were sent on missions. When
enough cash and credit cards had been collected, the group
retired to a motel. There, "marriage" ceremonies were conducted
in which Bamford was "married" to the victim, the defendant was
"married" to Alleyne, and Ismael was "married" to White.
The next day, at a second meeting in the cemetery, Luis was
introduced to the members as one of the leaders of the group.
That day and the next, members again were sent out on missions.
On November 2, members were to report to the motel where Ismael,
Luis, and the defendant were waiting. The victim also remained
at the motel because she was considered to be "child-like" and
would be a burden to those on missions.
4
While in Harvard Square, members, including Bamford and
Alleyne, learned that Ismael, Luis, and the defendant were not
Crips. Instead, Ismael and Luis were purportedly members of the
"Latin Kings" gang, and had been sent to organize a false "set"
of Crips. Upon hearing this news, the group renounced their
memberships; Bamford devised a plan to obtain a gun and rescue
the victim, whom Bamford feared would be in danger once Ismael,
Luis, and the defendant learned that members of the group had
turned against them.
The next day, November 3, Alleyne returned to the motel to
warn Ismael, Luis, and the defendant of Bamford's plan. Ismael
arranged for Scott Davenport to provide transportation for the
three men, the victim, Alleyne, and White (who had since
rejoined the group) in exchange for heroin. The victim related
to Alleyne and White a dream she had that she interpreted to
mean that Bamford was going to betray Ismael, Luis, and the
defendant. In turn, White told the men that the victim knew all
along that Bamford was going to turn against them.
The group traveled to Cambridge, where the defendant told
Alleyne and White that they were going to "get" the victim. The
defendant instructed Alleyne and White that when they heard the
phrase "green light" they were to pull the victim to the ground
and hold her down as Davenport stabbed her. The defendant
5
further instructed Alleyne to wrap a bandanna around her hand in
case the victim tried to bite.
As the women walked along the tracks of a railroad bridge
that spanned the Charles River, Ismael shouted "green light."
As planned, Alleyne and White pulled the victim to the ground;
Davenport approached and stabbed the victim repeatedly, and then
Luis ran to them and struck the victim in the head several times
with a pair of "nunchucks." Luis and Davenport then threw the
victim's body into the Charles River.
The defendant and others were arrested hours later for
kidnapping another individual whom they believed had turned
against them. While in custody, the defendant was questioned
about the victim's death. Among other things, the defendant
told investigators that he knew that the victim would be killed
and was against it, but that other members threatened to kill
him and stripped him of his rank in the gang. He also stated
that he was approximately twenty feet away from where the victim
was killed. Later in the interview, when asked if he killed the
victim, he responded, "You don't understand that someone at my
level doesn't have to do any dirt work," and "[W]hen it comes to
trial your witnesses won't make it."
Discussion. In the direct appeal from his murder
conviction, the defendant asserts error in the denial of his
pretrial motion to suppress his clothing and in the prosecutor's
6
closing argument at trial. In the appeal from the denial of his
motion for a new trial, the defendant alleges ineffective
assistance of his trial counsel for failing to highlight
irregularities in the handling of the defendant's clothing and
asserts that had the jury been aware of the discrepancies, such
knowledge may have made a difference in their verdicts.3 We
address the issues from each appeal.
1. Motion to suppress. The defendant claims that his
motion to suppress evidence obtained from his clothing was
improperly denied because there were no exigent circumstances
justifying the warrantless seizure. We find no error.
We summarize the facts found by the judge who heard the
motion to suppress, who was also the trial judge. See
Commonwealth v. Stephens, 451 Mass. 370, 381 (2008). The
defendant, the Vasquez brothers, and Davenport were arrested for
kidnapping on Saturday, November 3, 2001, and held pending
arraignment. The victim's body was discovered the next morning.
On Monday morning, investigators received an anonymous tip that
three individuals who had been arrested for kidnapping were
involved in the victim's death. Based on the tip and other
3 The defendant also moved for posttrial discovery. The
judge who considered that motion did not err in denying it.
7
corroborating evidence,4 a State police investigator had the
defendant disrobe and seized his clothing while he was in
custody awaiting arraignment. The investigator subsequently
returned the clothing to a court officer after a District Court
judge instructed the investigator to discontinue the warrantless
seizure. The defendant's clothing was held with his other
property, and later taken by the State police pursuant to a
search warrant issued the following day.
"A reasonable belief as to the potential loss or
destruction of evidence may create exigent circumstances
permitting a warrantless . . . seizure of [that] evidence."
Commonwealth v. DeJesus, 439 Mass. 616, 620 (2003). See
Commonwealth v. Figueroa, 468 Mass. 204, 213 (2014);
Commonwealth v. Gentile, 437 Mass. 569, 573 (2002). The
defendant argues that exigent circumstances did not exist at the
time his clothing was seized because he was in police custody at
the time of the seizure and whether he would be released had not
been determined. We find this argument unpersuasive.
At the time of the initial seizure, the defendant was in
custody awaiting arraignment on kidnapping charges and wearing
the clothing in which he had been arrested. Given that the
4 The defendant does not challenge the judge's finding of
probable cause; although we do not here recite all of the
evidence available to the investigators at the time of the
seizure, we agree that probable cause existed.
8
defendant's arrest occurred near the time of the murder, it was
objectively reasonable to believe that there was a significant
risk that the defendant might attempt to hide or destroy
evidence of the crime that existed on his clothing while in
custody, e.g., exchanging his clothes with another detainee or
washing his clothes in a jail cell sink or toilet. See
Figueroa, 468 Mass. at 213 (exigent circumstances exist when
"police have reasonable grounds to believe that obtaining a
warrant would be impracticable under the circumstances because
the delay in doing so would pose a significant risk that . . .
evidence may be destroyed"). Further, it was unclear whether
the defendant would be released from police custody, freeing him
to hide or destroy any evidence on his clothing. See id. at
214; Commonwealth v. Taylor, 426 Mass. 189, 195 (1997). Thus,
there was no error in denying the defendant's motion to
suppress.5
2. Prosecutor's closing argument. The defendant claims
that during the prosecutor's closing argument he made
misstatements concerning blood evidence connecting the defendant
5 The defendant also argues that the judge erred in
determining that the seizure was of no consequence because the
clothing was returned to the court officer and no observations
of the evidence were included in the affidavit of the search
warrant. As we conclude that the motion to suppress was
properly denied on the basis of exigent circumstances, we need
not address whether the doctrine of inevitable discovery
applies.
9
to the crime, creating a substantial likelihood of a miscarriage
of justice. See G. L. c. 278, § 33E. We disagree.
The jury heard from experts regarding three bloodstains on
the defendant's sweatshirt. Two of the stains were found to be
human blood and were consistent with spatter stains. The
remaining bloodstain, too small to analyze further, was
consistent with being either a spatter or a transfer stain. An
analysis of the deoxyribonucleic acid (DNA) in one of the two
larger stains revealed a DNA mixture from at least two people,
and that a major profile found in the mixture matched that of
the victim. In his closing, the prosecutor argued that all
three stains were from the nunchucks used to hit the victim,
stating, "[Y]ou also heard about the three spots of spatter on
[the defendant's] shirt. . . . [T]hat's probably how those
three drops of the victim's blood get there."
The defendant claims that the prosecutor's suggestion that
all three stains were spatter and that all three were consistent
with the victim's blood were misstatements of the evidence
warranting reversal of his convictions. Because the defendant
failed to object to the prosecutor's closing argument at trial,
our review is limited to determining whether any error produced
a substantial likelihood of a miscarriage of justice.
Commonwealth v. Mendez, 476 Mass. 512, 521 (2017), citing
Commonwealth v. Taylor, 455 Mass. 372, 377 (2009).
10
"In closing argument, '[p]rosecutors are entitled to
marshal the evidence and suggest inferences that the jury may
draw from it.'" Commonwealth v. Roy, 464 Mass. 818, 829 (2013),
quoting Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). Such
inferences need only be reasonable and possible based on the
evidence before the jury. Roy, supra. Taylor, 455 Mass. at
383. "Prosecutors may not 'misstate the evidence or refer to
facts not in evidence,'" however. Commonwealth v. Martinez, 476
Mass. 186, 200 (2017), quoting Commonwealth v. Kozec, 399 Mass.
514, 516-517 (1987).
Here, expert testimony established that two of the three
stains were consistent with spatter, and the third was
consistent with either spatter or transfer. This testimony,
coupled with the third stain's proximity to the first and
second, provided a solid basis for the inference that all three
stains were spatter. See Commonwealth v. Cole, 473 Mass. 317,
333 (2015); Roy, 464 Mass. at 829. Similarly, the suggestion
that all three stains contained the victim's blood was also a
fair inference to draw based on the evidence and the
Commonwealth's theory of the case. See Commonwealth v.
Valentin, 474 Mass. 301, 308-309 (2016); Commonwealth v.
Blaikie, 375 Mass. 601, 612 (1978) ("counsel may argue
inferences from the evidence which are most favorable to his or
11
her theory of the case, as long as the inferences drawn are
reasonable").
Also unavailing is the defendant's argument that the
prosecutor should have mentioned the DNA mixture in the lone
bloodstain that was tested. The defendant's theory was that he
was present for the victim's murder but that he was not a
participant. The prosecution's theory was that the defendant
ordered the killing but did not physically carry it out. Given
this basic agreement on the facts, we are not persuaded that
mention of the DNA mixture would have had any meaningful
exculpatory effect. Whether or not the prosecutor misstated the
evidence by omitting this particular fact, the omission was not
likely to have influenced the jury's decision, and thus there
was not a substantial likelihood of a miscarriage of justice.
See Commonwealth v. Wright, 411 Mass. 678, 681 (1992), S.C., 469
Mass. 447 (2014).
3. Ineffective assistance of counsel. In his motion for a
new trial, the defendant claims that his trial counsel was
ineffective for failing to highlight irregularities in the way
investigators handled evidence in order to cast doubt on the
chain of custody and, ultimately, on the fact that on the night
of the murder the defendant was wearing a blue fleece pullover,
which was later found to have human bloodstains.
12
Because the defendant was convicted of murder in the first
degree, rather than reviewing the claim under the traditional
Saferian standard,6 we ask whether there was error resulting in a
substantial likelihood of a miscarriage of justice pursuant to
G. L. c. 278, § 33E. Wright, 411 Mass. at 681-682. In essence,
"[t]he burden is on the defendant to demonstrate that something
inappropriate was likely to have unfairly influenced the jury's
verdict." Commonwealth v. Barbosa, 477 Mass. 658, 674 (2017),
quoting Commonwealth v. Painten, 429 Mass. 536, 550 (1999).
The defendant raises two points based on appellate
counsel's inspection of the evidence posttrial. First, the
cardboard box that contained Luis's clothing was labeled with
his name on both the top flap and the side of the box, but also
had the defendant's name on the box with a line through it.
Second, according to the investigator's testimony, the
defendants' clothing was placed into five separately labeled
plastic bags at the police station prior to being put into
evidence boxes. However, appellate counsel found two additional
unlabeled plastic bags with the trial evidence that were not
referenced during the trial.
6 Under Commonwealth v. Saferian, 366 Mass. 89, 96 (1974),
the traditional standard for ineffective assistance of counsel
is whether an attorney's performance fell measurably below that
which might be expected from an ordinary fallible lawyer and, if
so, whether such ineffectiveness has likely deprived the
defendant of an otherwise available substantial defense.
13
The defendant asserts that trial counsel's failure to
direct the jury's attention to these discrepancies may have made
a difference in the jury's verdicts. We disagree. Counsel for
both Ismael and the defendant vigorously challenged the chain of
custody of the clothing generally. The defendant's trial
counsel focused on the fleece pullover in particular, pointing
out that there was no record of what the defendant wore when he
was arrested, and that the defendant's booking photograph
depicted him in a white T-shirt. Finally, defense counsel
established during cross-examination that the clothing seized
from the defendant by an investigator was given to a court
officer in unlabeled evidence bags when the investigator was
ordered to stop the seizure.
The defendant has made no showing that the discrete issues
he raised in support of his motion for a new trial would have
made a difference in the jury's verdicts, especially because he
has made no connection between the discrepancies and the fleece
pullover. More importantly, although the blood evidence on the
fleece pullover was part of the Commonwealth's case, the
defendant was alleged to have ordered the killing, and not to
have committed the murder himself. Thus, the blood evidence was
merely additional circumstantial evidence showing that the
defendant was present during the murder.
14
4. Review under G. L. c. 278, § 33E. In addition to a
review of the prosecutor's closing argument, we have reviewed
the entire record and discern no reason to reduce the degree of
guilt or grant a new trial pursuant to our powers under G. L.
c. 278, § 33E.
Conclusion. We affirm the defendant's convictions and the
order denying the defendant's motions for a new trial and for
posttrial discovery.
So ordered.