Commonwealth v. Roman , 470 Mass. 85 ( 2014 )

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SJC-11311
COMMONWEALTH vs. MIGUEL ROMAN.
Hampshire. September 5, 2014. - November 4, 2014.
Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ.
Homicide. Practice, Criminal, Agreement between prosecutor and
witness, Capital case, Conduct of prosecutor, Disclosure of
evidence, Discovery, Examination of jurors, Instructions to
jury, Interrogation of jurors, Jury and jurors, Mistrial,
Required finding, Speedy trial, Voir dire, Witness.
Constitutional Law, Jury. Evidence, Bias of government
witness, Credibility of witness, Immunized witness.
Witness, Bias, Credibility, Immunity. Jury and Jurors.
Indictments found and returned in the Superior Court
Department on February 18, 2010.
A motion to dismiss was heard by Richard J. Carey, J.; a
renewed motion to dismiss was considered by Cornelius J.
Moriarity, II, J.; and the cases were tried before Constance M.
Sweeney, J.
Donald A. Harwood for the defendant.
Jane Davidson Montori, Assistant District Attorney, for the
Commonwealth.
SPINA, J. The defendant was convicted of deliberately
premeditated murder and possession of a class B substance. On
2
appeal he asserts error in (1) the denial of his motion for a
required finding of not guilty; (2) the denial of his motion to
dismiss based on Mass. R. Crim. P. 36, as amended, 422 Mass.
1503 (1996) (rule 36); (3) the denial of his motion to dismiss
for delayed disclosure; (4) the judge's failure to declare, sua
sponte, a mistrial based on alleged jury tampering; and (5) the
judge's instruction pursuant to Commonwealth v. Ciampa, 406
Mass. 257 (1989). The defendant also seeks relief under G. L.
c. 278, § 33E. We affirm the convictions and decline to
exercise our authority under G. L. c. 278, § 33E, to reduce the
conviction of murder to a lesser degree of guilt or order a new
trial.
1. Background. The jury could have found the following
facts. Shortly before midnight on January 28, 2010, Angel
Gonzalez (Angel) called the defendant on his cellular telephone
to arrange a purchase of cocaine. Angel and Luis Soto then
drove to a night club in Holyoke where the defendant sold them
cocaine. They traveled in a grey four-door 2006 Nissan Altima
owned by Soto's girl friend. They then drove to a bar in
Holyoke, ingesting the cocaine en route.
At about 12:56 A.M. on January 29, Angel's mother called
Angel on his cellular telephone and told him that the victim was
at the Holyoke Medical Center and needed a ride. Soto, Angel,
and Angel's brother Felipe left the bar in the Altima. They
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drove to the hospital and went inside to get the victim. The
four men then returned to the bar. After about one hour they
all left together. Angel called the defendant on his cellular
telephone to arrange another purchase of cocaine. Angel's
cellular telephone records showed three calls that connected
with the defendant's cellular telephone between 1:30 A.M. and
1:52 A.M. They drove to the night club to meet the defendant.
Angel and the victim got out of the car and went inside the
club. When they returned, the defendant was with them and the
three men entered the Altima.
Soto was driving; Angel was in the front passenger seat;
the defendant sat behind Soto; Felipe was behind Angel; and the
victim sat between the defendant and Felipe. The defendant told
Soto to drive. They proceeded down High Street. The defendant
directed Soto to turn right onto Essex Street. The defendant
pulled out a handgun and shot the victim twice in the left rear
side of his head. Soto stopped the car and shifted into the
"park" position. Felipe got out of the car and ran toward High
Street. Angel got out of the car and stood nearby for a short
time before running toward High Street. Soto was the third to
get out of the car. He hesitated because he was concerned about
abandoning his girl friend's car, but then he left and ran
toward High Street.
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The defendant was the last person to get out of the Altima.
He walked around the rear of the car, opened the rear
passenger's side door and fired a third shot into the victim's
right temple. He then got into the driver's seat of the Altima
and sped off. The defendant turned onto Newton Street where he
stopped and dumped the victim's body in the road. In the
meantime, Felipe, Angel, and Soto made their way to Sam's Food,
a nearby store on High Street. The defendant called Angel's
cellular telephone at 2:04:07 A.M. The call connected for
forty-four seconds. The Altima, driven by the defendant,
arrived at Sam's Food store shortly thereafter. The defendant
left the car there, and left the scene himself. The others then
drove away in the Altima. Soto turned himself in to police the
next day.
2. Motion for required finding of not guilty. The
defendant argues that the evidence was not sufficient to convict
him and that the judge erred in denying his motion for a
required finding of not guilty. He contends that Felipe and
Soto, who testified pursuant to cooperation agreements1 and whose
1
Angel Gonzales invoked his privilege against self-
incrimination in the presence of the jury, at the request of the
defendant, and did not testify. Without question, the
prosecutor could not have called Angel to invoke his privilege
against self-incrimination in the presence of the jury. The
defendant had no right to proceed in this manner. See
Commonwealth v. Rosario, 444 Mass. 550, 557-560 (2005);
Commonwealth v. Fisher, 433 Mass. 340, 350 (2001); Commonwealth
v. Hesketh, 386 Mass. 153, 157 (1982). There was no perceptible
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murder indictments had been nolle prossed before the defendant's
trial, gave "perjurious" and "uncorroborated" testimony that was
legally insufficient to support a conviction.
He further contends that the evidence "conclusively
demonstrate[d]" that Felipe was the only person in the car
positioned to fire a bullet into the right temple of the victim,
who was sitting immediately to his left. In this regard he
cites the testimony of Soto, who heard only one shot fired in
the car, then turned and saw the victim falling forward. The
defendant reasons that this single shot, the only shot Soto
heard in the car, must have been the one fired into the victim's
right temple. He further cites the testimony of Barbara St.
Amand, a witness who looked out of her apartment window on
Newton Street after hearing a car come to a screeching stop.
She saw one man wearing a black hooded jacket, the same type of
clothing worn by Felipe, go to the rear passenger's side of the
car and pull something out. The man then entered the car
through the door behind the driver, and the car sped away. The
defendant contends that St. Amand's testimony establishes that
two people were involved in the killing -- the driver of the
car, Soto, and his rear driver's side passenger, Felipe.
prejudice to the defendant. Indeed this evidence allowed the
defendant to buttress his theory that Luis Soto and Felipe
Gonzales killed the victim.
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The defendant asserts that there was no evidence that he
had a motive to kill the victim and, by contrast, that Angel and
Felipe went to see the victim about one week before the killing
to settle a dispute over a large sum of money that the victim
owed Felipe and Angel. The victim was not at his apartment but
a brother of Angel and Felipe took a valuable necklace from the
victim's girl friend as payment. When the victim learned what
had happened he telephoned Angel and told him he was "going to
kill him and fuck him up."
When reviewing the denial of a motion for a required
finding of not guilty at the close of the Commonwealth's case,
"the critical inquiry . . . must be . . . to determine whether
the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt. . . . [The] question is whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt"
(emphasis in original). Commonwealth v. Latimore, 378 Mass.
671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-
319 (1979). In developing his argument, the defendant largely
has marshaled the evidence in the light most favorable to
himself. We reject the defendant's approach. The jury were not
required to accept all the testimony of a witness, for example,
St. Amand; nor are we. When deciding the denial of a motion for
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a required finding of not guilty, we consider the evidence in
the light most favorable to the Commonwealth. In addition, the
absence of evidence of motive is not material to our inquiry.
The Commonwealth is not required to prove motive. See
Commonwealth v. Brooks, 422 Mass. 574, 581 (1996).
Soto testified that as they were driving he heard a
"detonation" and stopped the car. He turned around and saw the
victim falling forward, and he saw the defendant holding a small
black gun pointed at the victim's head. There was evidence from
which the jury could infer that Soto heard only one shot because
he experienced ringing in his ears after the detonation.
Video recordings from security cameras located at Essex and
High Streets, Newton and Cabot Streets, Sam's Food store, and
Holyoke Medical Center were admitted in evidence and shown to
the jury. The video recording from the Holyoke Medical Center
showed Soto, Felipe, and Angel inside the hospital between
12:56:47 A.M. and 12:57:42 A.M. on January 29, where they
earlier had picked up the victim. It also showed the Altima in
the parking lot.
The video recording from the security camera at Essex and
High Streets showed the Altima stopped in the road. A person in
the rear passenger's side seat could be seen getting out of the
car and running toward High Street. That person was followed by
a person in the front passenger's side seat, and then the
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driver. Those three people could be seen running toward High
Street. The next person to step out of the car was a person in
the rear driver's side seat. He walked around the rear of the
car to the rear passenger's side door, opened it, and leaned
inside for about thirteen seconds. That person then backed away
from the car and walked around the rear of the car toward the
driver's side. The person entered the car through the driver's
door and drove away. The video tape indicated this took place
between about 2:02:22 A.M. and 2:02:56 A.M. on January 29, 2010.
Soto's testimony that he, Felipe, and Angel met outside
Sam's Food store shortly after they fled from the Altima was
corroborated by the video recording from the security cameras
outside and inside Sam's Food store. The video recording from
the front door area showed the three men as they arrived at the
store, variously between 2:04:02 A.M. and 2:04:17 A.M. on
January 29. The video recording from inside the store showed
Angel and Soto inside the store, and it later showed Angel and
Felipe talking at the front door. These video recordings
corroborated Soto's testimony that he, Felipe, and Angel had
made their way on foot to Sam's Food store.
The video recordings from the security cameras outside the
front and at the rear parking lot at Sam's Food store showed the
Altima turning right onto High Street from Cabot Street and then
approach the front door area of the store at 2:04:18 A.M. The
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front door video recording showed Angel talking on his cellular
telephone. Cellular telephone records of Angel and the
defendant indicate that at this same time the defendant called
Angel's cellular telephone, and their cellular telephones were
connected for forty-four seconds, beginning at 2:04:07 A.M. on
January 29. The jury could have inferred from this evidence
that Angel was talking to the defendant on his cellular
telephone and told him that Soto, Felipe, and Angel were at
Sam's Food store and that the defendant should return the Altima
to them at that location.
The period that elapsed from the time the Altima stopped on
Essex Street, 2:02:22 A.M., until the Altima arrived at Sam's
Food store where Soto, Angel, and Felipe were waiting, at
2:04:18 A.M., was one minute and fifty-six seconds. The
inference that Soto, Angel, and Felipe were the three figures
who fled from the Altima on Essex Street, and the corresponding
inference that the defendant drove the Altima from Essex Street
to Sam's Food store, given the brief time span involved, was
extremely powerful. There would only have been enough time for
the convergence of Soto, Angel, Felipe, and the Altima at Sam's
Food store by 2:04:18 A.M. if events had occurred as Soto and
Felipe had testified. The defendant drove the Altima down two
streets of a single city block (Newton and Cabot) to Sam's Food
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store, while Soto, Angel, and Felipe ran along the other two
streets of the same city block (Essex and High) to the store.
Although the identity of the various occupants of the car
could not be ascertained from the Essex and High Streets video
camera images, the video recording (in tandem with the Sam's
Food video recording) corroborated Soto's testimony concerning
their movement based on where they sat in the Altima. Based on
this evidence the jury could have found that Soto was the
driver, that Angel was the front passenger, and that Felipe was
the right rear passenger, all of whom fled, and that the
defendant was the left rear passenger who walked over to the
rear passenger's side door, opened it and leaned inside, and
then drove the car away.
Deoxyribonucleic acid (DNA) evidence indicated that the
victim's DNA matched the single-source DNA profile obtained from
a blood stain on the defendant's right boot,2 and the major-
source DNA profile obtained from the edge of the defendant's
right jacket pocket.3 The victim's DNA also matched the major
2
The probability of a deoxyribonucleic acid (DNA) profile
match here from a randomly selected unrelated individual is
about one in 136.8 trillion in the Caucasian population, one in
10.27 quadrillion in the African-American population, one in
1.036 quadrillion in the Hispanic population, and one in 1.647
quadrillion in the Asian population.
3
The probability of a DNA profile match here from a
randomly selected unrelated individual is about one in 9.881
billion in the Caucasian population, one in 238.5 billion in the
African-American population, one in 48.26 billion in the
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profile of a blood stain on the Altima's headliner (roof
interior).4
In addition, transfer stains of human blood were found on
the driver's door, the gear shift, the steering wheel, the rear
view mirror, and the emergency brake of the Altima. From this
evidence the jury could infer that the defendant transferred the
victim's blood from his hands when he closed the driver's door,
held the steering wheel, adjusted the rear view mirror, and
moved the gear shift into drive. The jury also could infer that
the defendant stepped in the victim's blood when he removed his
body from the Altima. Human blood stains were found on the back
side of the fourth and fifth fingers of the right-hand glove
recovered from the defendant. None of these blood stains was
tested for DNA. The jury could have inferred that the blood was
the victim's, which sprayed back onto only two fingers of the
glove exposed at the time the defendant fired two shots into the
back of the victim's head at close range.
The defendant made a statement to police in which he denied
knowing the victim and denied being in the Altima in the early
Hispanic population, and one in 115.7 billion in the Asian
population.
4
The probability of a DNA match here from a randomly
selected unrelated individual is about one in 136.8 trillion in
the Caucasian population, one in 10.27 quadrillion in the
African-American population, one in 1.026 quadrillion in the
Hispanic population, and one in 1.647 quadrillion in the Asian
population.
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morning hours of January 29. He also denied owning a gun.
However, police recovered a gun cleaning kit from the
defendant's apartment.
A medical examiner testified that the victim had sustained
three gunshot wounds to the head. Two were on the left rear
side, almost on top of each other; a third was on the right
temple. She opined that at least one of the left rear wounds
and the right temple wound were fatal.
Soto and Felipe heard one gunshot while inside the Altima,
and they heard a second gunshot as they were making their way to
Sam's Food store. St. Amand also thought that she heard two
shots. A shell casing was found in the vicinity where the
Altima stopped on Essex Street. Although the murder weapon was
not found, a ballistics expert opined that the gun used to kill
the victim was a Jennings Bryco model J22 semiautomatic pistol.
This is a .22 caliber firearm similar to the gun Soto testified
that he saw the defendant holding after he heard the first shot.
This type of gun is very loud and is capable of firing shots in
rapid succession, thus explaining how two projectiles could be
nearly on top of one another, and why Soto and Felipe
experienced ringing in their ears, and were unable to discern
that two shots had been fired when they were inside the car. It
also is consistent with a shell casing being ejected from the
gun where it was recovered on Essex Street after the defendant
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opened the right rear door of the Altima and fired one shot into
the victim's right temple.
The evidence, taken in the light most favorable to the
Commonwealth, was sufficient to support a conviction of
deliberately premeditated murder. The defendant fired two shots
at close range into the back of the head of the victim, which
alone, is sufficient to support a conviction of deliberately
premeditated murder. See Commonwealth v. Coleman, 434 Mass.
165, 168-169 (2001). He then went around the other side of the
car, opened the rear passenger's side door, and fired a third
shot into the right temple of the victim. There was no error in
the denial of the defendant's motion for a required finding of
not guilty.
3. Speedy trial. On September 20, 2011, the defendant
filed a motion to dismiss, pursuant to Mass. R. Crim. P. 36 (b),
alleging the denial of his right to a speedy trial. The motion
was denied on October 31, 2011, by a judge who was not the trial
judge. "Under rule 36, if a defendant is not 'tried within
twelve months after the return day,' he . . . is entitled upon
motion to a dismissal of the charges." Commonwealth v. Denehy,
466 Mass. 723, 729 (2014), quoting Mass. R. Crim. P. 36 (b) (1)
(C), (D). Because the return day in this case was March 2,
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2010, the day of arraignment,5 and more than one year had passed
before he filed his motion to dismiss under rule 36, on
September 20, 2011, the defendant established a prima facie
violation of the rule. See Denehy, supra. The burden shifts to
the Commonwealth to justify the delay, which it may do by
showing that a certain portion of the delay falls within one of
the excluded periods provided by rule 36 (b) (2), or by a
showing that the defendant acquiesced in the delay, or that he
benefited from the delay. Id. A failure to object to a
continuance or other delay constitutes acquiescence.
Commonwealth v. Tanner, 417 Mass. 1, 3 (1994). The filing of a
rule 36 motion tolls the running of the time within which a
defendant must be brought to trial. Barry v. Commonwealth, 390
Mass. 285, 294 (1983). For purposes of a rule 36 calculation of
excludable periods, the docket and the clerk's log are prima
facie evidence of the facts recorded therein. Id. at 289. The
period from March 2, 2010, to September 20, 2011, is 567 days.
The Commonwealth was required to account for at least 202 days.
The original pretrial hearing date, August 24, 2010, was
continued to November 16, 2010, by agreement of the parties, as
reflected in the clerk's log. This period, eighty-four days, is
excludable by reason of the defendant's acquiescence in the
5
See Mass. R. Crim. P. 2 (b) (15), as amended, 397 Mass.
1226 (1986).
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delay. See Commonwealth v. Spaulding, 411 Mass. 503, 504
(1992).
The pretrial hearing was continued again from November 16,
2010, to December 13, 2010; then to January 11, 2011; and then
to February 16, 2011. The defendant voiced no objection or
opposition to these continuances and thus is deemed to have
acquiesced in them, regardless whether the continuances were
ordered by the court or the subject of an agreement of the
parties. See Denehy, supra at 731. The periods involved
comprise ninety-two days that are excludable.
On February 16, 2011, the defendant expressly agreed to a
trial date of September 12, 2011, thus acquiescing in a period
of 208 days. This amount is excludable.
The Commonwealth filed a motion on July 20, 2011, to
continue the trial date. The motion was allowed, and the trial
was continued to October 14, over the defendant's objection.
The defendant's original acquiescence in the setting of the
original trial date of September 12, 2011, is unaffected by the
continuance over his objection. However, the time between
September 12 and September 20, 2011, is chargeable to the
Commonwealth. The total amount of excludable time between
March 2, 2010, and September 20, 2011, was 384 days, leaving 183
days chargeable to the Commonwealth. This was well within the
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one-year requirement of rule 36. The motion properly was
denied.
4. Renewed motion to dismiss. The defendant filed a
renewed motion to dismiss on December 2, 2011, alleging both a
violation of rule 36 and a claim of prosecutorial misconduct in
the delayed production of discovery. Circumstances that
occurred between September 20, 2011, the date the defendant
filed his first motion to dismiss and December 2, 2011, the date
he filed his renewed motion are relevant to our discussion.
The defendant's first motion to dismiss was heard on
September 28, 2011, by a judge who was not the trial judge. It
was taken under advisement and denied on October 31, 2011. In
the meantime, the defendant filed a motion to continue the
October 14 trial date because his rule 36 motion was under
advisement. The trial was continued to November 17, 2011. On
November 15, after the rule 36 motion was denied, the
Commonwealth served on the defendant about 300 pages of
additional discovery, plus four "CDs" containing the videos from
the various security cameras. On November 16, the defendant
orally moved to continue the trial because time was needed to
review the additional discovery. A second judge, not the trial
judge, continued the trial to December 15, 2011, and charged the
time from November 16 to December 15 to the Commonwealth. The
defendant filed his renewed motion to dismiss on December 2.
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The motion was denied by the second judge on December 13. The
defendant asserts error in the denial of his renewed motion to
dismiss.
We first address the rule 36 claim. The period from
September 20, 2011, to September 28, 2011, is a reasonable time
in which to schedule a hearing on the rule 36 motion, and is
excludable for that reason. Moreover, the rule 36 clock was
tolled by reason of the filing of the motion. See Barry, 390
Mass. at 294; Mass. R. Crim. P. 36 (b) (2) (A) (v) (period
between request for hearing and conclusion of hearing is
excludable). In addition, a period of not more than thirty days
during which the motion was taken under advisement by the first
judge is excludable. See rule 36 (b) (2) (A) (vii). Thus, the
period from September 20 to October 28, or thirty-eight days, is
excludable. The three additional days taken by the first judge
in deciding the first rule 36 motion are not excludable.
The period from November 1 to November 16, 2011, is
excludable because the defendant had moved to continue the trial
from October 14 to November 17. On November 16 the second judge
continued the trial to December 15, 2011, and charged the time
to the Commonwealth. Thus, sixteen days are excludable from the
period between November 1 and December 15.
The period of time from September 20 to December 2, 2011,
the date the renewed motion to dismiss was filed, was seventy-
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three days, of which fifty-four days are excludable. The total
time from arraignment to December 2, 2011, was 640 days, of
which the Commonwealth had to account for 275 days. A total of
438 days are excludable. There was no violation of rule 36.
We turn to the claim of prosecutorial misconduct. Rule 36
(c) provides that
"[n]otwithstanding the fact that a defendant is not
entitled to a dismissal under subdivision (b) of this rule,
a defendant shall upon motion be entitled to a dismissal
where the judge after an examination and consideration of
all attendant circumstances determines that: (1) the
conduct of the prosecuting attorney in bringing the
defendant to trial has been unreasonably lacking in
diligence and (2) this conduct on the part of the
prosecuting attorney has resulted in prejudice to the
defendant."
Rule 36 (c) is consistent with constitutional principles. See
generally Barker v. Wingo, 407 U.S. 514 (1972).
There was evidence that the delays were caused in part by
the laboratory assigned to perform the DNA tests, by failure of
the police to deliver reports and witness statements to the
district attorney in a timely manner, and by the failure of the
district attorney's office to provide timely disclosure of
certain cellular telephone records. Some of this came to light
at the July 20, 2011, hearing on the Commonwealth's motion to
continue the September 12 trial date. Counsel for all
defendants were present, and at one point counsel for Soto
stated, without objection or opposition or expression of
disassociation from other counsel, including trial counsel for
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the defendant (who is not appellate counsel), "[W]e should have
acted sooner. . . . But having said that, the Government also
bears some of the brunt of the responsibility here. And the
laboratory as well. So I think all of us are culpable in equal
degrees." The second judge rejected the claim of prosecutorial
misconduct. He found that the belated discovery disclosure was
"not intentional but rather the result of oversight," and that
the defendant had not shown prejudice. Accordingly, the
defendant has not shown that the second judge erred. The
renewed motion to dismiss properly was denied.
5. Mistrial. The defendant urges us to invoke our powers
under G. L. c. 278, § 33E, and conclude that the trial judge
should have declared a mistrial sua sponte with respect to
alleged jury tampering by members of the victim's family.
Juror no. 14 approached a court officer on the seventh day
of trial and informed him of troublesome conduct by certain
individuals who had been in the court room. As a result, the
judge conducted an individual voir dire of the jury at the
beginning of the seventh day of the trial. The judge asked each
juror if he or she had heard any comments from members of the
audience, whether the juror had had any contact with members of
the audience, and whether the juror had heard other jurors
express any concerns about members of the audience. Her final
question to each juror asked whether the juror could remain fair
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and impartial. All jurors indicated that they could remain fair
and impartial. Three jurors heard comments or observed conduct
from members of the audience, as summarized below.
While waiting for an elevator juror no. 3 heard a young,
brown-haired woman (later identified as the defendant's aunt)
who had been in the audience say to a group of people with whom
she was talking, "If they send him upstate, he'll be dead."
Juror no. 3 indicated that this did not affect his ability to
remain fair and impartial.
While walking down a corridor in the court house, juror no.
14 heard a woman who had been a member of the audience say to a
group of nonjurors, "Every one of those fucking jurors . . . ,"
and then abruptly stop speaking when she saw juror no. 14
approaching. Juror no. 14 saw this same woman (later identified
as the same aunt) look at a group of jurors in the parking lot,
and then spit on the ground. Juror no. 14 found this person's
conduct "atrocious" and "vulgar," but the juror assured the
judge that she could remain "fair and impartial." Juror no. 14
spoke to other jurors. She and other jurors speculated whether
their license plates could be used to locate them, but this
speculation was not based on anything that a member of the
audience said or did. She expressed concerns that at the end of
each day jurors and spectators left the court house at the same
time.
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Juror no. 16 was in an elevator with a group of people when
one woman who had not been in the audience asked, "What's going
on with the trial?" A blonde-haired woman who had been in the
audience (later identified as the defendant's mother) said,
"None of her fucking business what's going on with the trial."
Juror no. 16 was not affected by the incident.
The judge asked the prosecutor to identify the women
described by jurors nos. 3, 14, and 16. The blonde-haired woman
was identified as the victim's mother; the woman referenced by
jurors nos. 3 and 14 was identified as an aunt of the victim.
The judge excluded them from the court room for the balance of
the trial. The judge characterized the conduct of the victim's
aunt as "potential juror tampering" and said she would refer the
matter to the Attorney General.
The prosecutor requested that juror no. 14 be excused. The
defendant objected, and the judge denied the prosecutor's
request. The judge determined that based on the voir dire,
juror no. 14 remained "fair and impartial."
"If, during trial or jury deliberations, the judge is
advised of a claim of an extraneous influence on the jury, he or
she is to first 'determine whether the material . . . raises a
serious question of possible prejudice.' Commonwealth v.
Jackson, 376 Mass. 790, 800 (1978). If 'a juror indicates
exposure to the extraneous material in question, an individual
22
voir dire is required to determine the extent of that exposure
and its prejudicial effect.' Commonwealth v. Tennison, 440
Mass. 553, 557 (2003). Because the judge 'is in the best
position to observe and assess the demeanor of the juror[s] on
voir dire . . . [t]he determination that [a] juror was
unaffected by extraneous information is within the sound
discretion of the trial judge.' (Citation omitted.) Id. at
560." Commonwealth v. Meas, 467 Mass. 434, 451 (2014), cert.
denied, U.S. Supreme Ct., No. 13-10630 (Oct. 6, 2014). Here,
the judge followed the correct procedure and was entitled to
rely on the jurors' assertions of impartiality, and on her
observations of them during voir dire in assessing whether they
could remain fair and impartial. We also are mindful that
experienced trial counsel voiced no objection. The defendant
has failed to demonstrate any "solid evidence of a distinct
bias," Commonwealth v. Bryant, 447 Mass. 494, 500 (2006),
quoting Commonwealth v. Leahy, 445 Mass. 481, 499 (2005), or
that the judge otherwise abused her discretion. There was no
error.
6. The Ciampa instruction. The defendant contends that
the judge's instruction concerning the manner in which the jury
should consider the testimony of a cooperating witness was
error. In particular, he argues that the judge did not
"adequately focus the jury's attention on the incentives that
23
could have influenced [Soto's and Felipe's] testimony." Ciampa,
406 Mass. at 263-264. In addition, he argues, the judge failed
to instruct the jury that "the government did not know whether
[Soto and Felipe] were telling the truth]." Id. at 264. See
Commonwealth v. Meuse, 423 Mass. 831, 832 (1996). There was no
objection to the jury instruction. We review to determine if
there was error, and, if so, whether it created a substantial
likelihood of a miscarriage of justice. Commonwealth v. Wright,
411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).
Trial counsel began his cross-examination of both Soto and
Felipe with a discussion of the unredacted terms of their
cooperation agreements and the nolle prosse filed in the murder
case against each witness. Both Soto and Felipe still had
outstanding indictments for accessory after the fact of murder.
He elicited from both witnesses that they had spent twenty-one
months in custody in lieu of bail, that conditions of their
incarceration were stressful, and that the Commonwealth was
"totally in charge" of whether their testimony was in breach of
their cooperation agreements. The decision to cooperate with
the Commonwealth was not difficult for either man, even though
for Felipe it meant he might have to testify against his brother
Angel. Trial counsel also stressed the fact that prior to their
being held, police interrogators repeatedly told them they did
not believe their early statements, implying that the
24
Commonwealth was looking for specific testimony and until it was
forthcoming they would remain in jail.
Toward the end of his closing argument trial counsel
forcefully argued that Soto and Felipe had made what were
essentially the deals of a lifetime. He argued that the case
came down to whether the jury believed Soto and Felipe. He
mocked the cooperation agreements, claiming,
"the Commonwealth controls what [I] would argue to you is a
puppet. [The Commonwealth] control[s] the strings . . . .
The agreement that they signed to get out of jail . . .
says, all the rights are with the government to determine
what we really think about your testimony. . . . Read it
in detail. Did [they] have any choice? Did either one of
them have any choice? They were walking away from murder
in the first degree, they were walking out of jail after 21
months. . . . I think I recorded that [they] said I'm just
here to tell the truth. I think I recorded that [they]
said I'm just here to tell the truth 32 times. I guess
that's for you ladies and gentlemen of the jury to decide
whether or not [they were] there to tell the truth, or to
fulfill the obligations of [their] cooperation agreement. .
. . Well, the cooperating individuals are cooperating for
only one reason. They're cooperating because they're
afraid that they'll go back to being charged with murder in
the first degree." (Emphasis added.)
The prosecutor never mentioned the cooperation agreements
in his closing argument. His argument carefully and
methodically focused upon the importance of the security camera
video recordings and the forensic evidence, and how they
corroborated the testimony of Soto and Felipe. His argument
rested on painstaking attention to detail. He never suggested
that the Commonwealth had superior knowledge that the witnesses
25
were telling the truth; rather, he stated that it was the jury's
function to determine the truth.
The trial judge focused upon the fact that trial counsel
wanted to offer the cooperation agreements with nothing
redacted. Counsel made it clear that he wanted nothing
redacted. After Soto's cooperation agreement was admitted in
evidence the judge instructed the jury, "[N]o matter what
agreement[s] exist or do not exist between the Commonwealth and
any witness in the case, you are the only ones who determine[]
the truth in the case. Period. You are the only ones, no one
else, who determine the truth and the facts in the case
consistent with the burden of proof and presumption of innocence
as discussed before." After Felipe's cooperation agreement was
admitted in evidence the judge instructed the jury, "I told you
this yesterday when we had the same issue with another witness,
Mr. Soto. The instruction remains the same, but now with
respect to this witness. Any reference in any agreement to an
agreement being based on a person telling the truth, I
underscore to you the Commonwealth does not determine what the
truth is. The jury determines what the truth is, based on the
evidence that they determine to be credible."
In her final general instructions, the judge told the jury
that when assessing a witness's credibility they could consider
whether the witness has an interest in the outcome of the case,
26
any motive or reason they may have in testifying, and the
witness's appearance and demeanor. She later instructed the
jury that with respect to the testimony of Soto and Felipe, who
were alleged accomplices, they must bring "heightened scrutiny
and care in evaluating and analyzing the testimony of those
witnesses." She further instructed, if a witness "has a
cooperation agreement with the Commonwealth . . . you must
scrutinize that witness's testimony with that high, high degree
of scrutiny. . . . [W]ith respect to those so-called
cooperation agreements, I remind you that promises to tell the
truth within cooperation agreements are irrelevant. The jury
determines what the truth of the matter is in the case, no one
else."
In Ciampa, we pointed to specific deficiencies in the
judge's instructions. We said that language in a cooperation
agreement to the effect that the agreement was "contingent upon
the truthfulness of [the cooperating witness]" should be
redacted "on request" by a defendant (emphasis added). Ciampa,
406 Mass. at 262. See Mass. G. Evid. § 1104(c) (2014). Here,
not only was there no request for such redaction, but also trial
counsel specifically indicated he did not want anything
redacted. This language went to the heart of the defense.
Trial counsel wanted the jury to understand that the
Commonwealth brought tremendous pressure to bear on Soto and
27
Felipe until they came forward with a story that the
Commonwealth wanted them to tell -- and that truth played no
part in it.
We also said in Ciampa that a judge should warn the jury
that "the government did not know whether [the cooperating
witness] was telling the truth." 406 Mass. at 264. However,
failure to so instruct, standing alone, is not reversible error.
See Meuse, 423 Mass. at 832. It is only where the prosecutor
has vouched for the witness or suggested having special
knowledge by which he or she can verify the witness's testimony
that such an instruction must be given to avert reversible
error. See id.; Ciampa, 406 Mass. at 266. Here, the prosecutor
never vouched for Soto or Felipe. Nor did he suggest that he
had special knowledge by which to determine that they were
telling the truth. There was no error in the failure to give
such an instruction.
Finally, in Ciampa we said that a judge should "focus the
jury's attention on the particular care they must give in
evaluating testimony given pursuant to a plea agreement that is
contingent on the witness's telling the truth." 406 Mass. at
266. We also said that "[w]e do not prescribe particular words
that a judge should use" in this regard. Id. The judge did
what minimally was required under Ciampa given the circumstances
presented at the defendant's trial. See Mass. G. Evid.
28
§ 1104(f) (2014). She also reinforced the importance of such
inquiry by instructing the jury that they should scrutinize the
testimony of Soto and Felipe with great care by virtue of their
being alleged accomplices, something we encourage but do not
require. See Commonwealth v. Thomas, 439 Mass. 362, 372 (2003).
There was no error.
7. Review under G. L. c. 278, § 33E. We have reviewed the
transcripts, the briefs, and the entire record, and we discern
no reason to exercise our power under G. L. c. 278, § 33E, to
reduce the conviction of murder to a lesser degree of guilt or
order a new trial. The manner in which this case was
prosecuted, defended, and judged was exemplary. In the final
analysis, this case is a testament to the power of
circumstantial evidence.
Judgments affirmed.