Commonwealth v. Jones , 477 Mass. 307 ( 2017 )

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SJC-12027
COMMONWEALTH vs. MAURICE JONES.
Suffolk. January 10, 2017. - June 20, 2017.
Present: Gants, C.J., Lenk, Hines, & Budd, JJ.
Homicide. Jury and Jurors. Practice, Criminal, Jury and
jurors, Empanelment of jury, Challenge to jurors, Hearsay,
Instructions to jury. Evidence, Identity, Consciousness of
guilt, Hearsay. Constitutional Law, Self-incrimination.
Indictments found and returned in the Superior Court
Department on June 26, 2013.
The cases were tried before Linda E. Giles, J., and a
motion to set aside the verdict was heard by her.
James L. Sultan (Kerry A. Haberlin also present) for the
defendant.
Matthew T. Sears, Assistant District Attorney (Julie Sunkle
Higgins, Assistant District Attorney, also present) for the
Commonwealth.
LENK, J. The defendant was convicted by a Superior Court
jury of murder in the first degree on theories of deliberate
premeditation and extreme atrocity or cruelty in connection with
2
the shooting death of Dinoriss Alston on April, 17, 2012.1 The
identity of the shooter was the central issue at trial. On
appeal, the defendant challenges the sufficiency of the
evidence, and also asserts a number of errors in the trial
proceedings. He maintains that the judge erred in failing to
require the Commonwealth to explain its peremptory challenge of
a prospective juror; improperly allowed the admission of
evidence as to the defendant's refusal to go to the hospital to
be shown to the surviving witness and as to a police radio
broadcast describing the shooter; incorrectly instructed the
jury that circumstantial evidence would suffice while failing to
instruct that mere presence was not enough; and improperly
limited the defendant's cross-examination of a Commonwealth
witness. The defendant asserts also that he received
ineffective assistance of counsel and requests relief under
G. L. c. 278, § 33E.
We conclude that, while the evidence at trial was not by
any means overwhelming, it was sufficient to sustain the
defendant's convictions. The judge's failure to require an
explanation of the prosecutor's peremptory challenge of a
1
This was the defendant's second trial on these charges;
the first trial ended in a mistrial when the jury were unable to
reach a verdict. The defendant also was convicted of assault
and battery by means of a dangerous weapon and unlawful
possession of a firearm. He was acquitted of armed assault with
intent to murder on charges stemming from the nonfatal shooting
of the victim's girl friend, Ashley Platt.
3
prospective juror who is African-American, however, requires the
convictions be vacated. We address other claimed errors only
insofar as they may recur at any new trial.
1. Background. Because the defendant challenges the
sufficiency of the evidence, we discuss in some detail the facts
the jury could have found.
a. The shooting. On the afternoon of April 17, 2012,
Alston and his girl friend, Ashley Platt, were sitting in her
vehicle near a park on Dunreath Street in the Roxbury section of
Boston when they were struck by multiple gunshots. Platt was in
the driver's seat, and Alston was in the front passenger's seat.
The primary issue at trial was the identity of the shooter.
Platt testified that, on April 17, 2012, an unseasonably
warm day, she and Alston went to the beach after she left work
at around 11 A.M., and later decided to drive to a park in
Roxbury where they frequently spent time, arriving at
approximately 3:40 or 3:45 P.M. Platt did not tell anyone about
their plans for the day. Alston spoke on his cellular telephone
"a couple of times" during the afternoon, including making a
call at about 3:07 P.M. to a person identified as "Suncuz."2 At
some point on the drive from the beach to the park, the two
stopped at a location in the Grove Hall neighborhood of Roxbury,
where Alston spoke briefly to a man Platt did not know; when he
2
"Suncuz" was never identified.
4
returned to the vehicle, Alston's demeanor remained "normal."
Platt then drove to a convenience store, where Alston made a
purchase while she remained in the vehicle, and the two then
made their way to Dunreath Street near the park.3 After they
stopped, they remained in the vehicle smoking marijuana, while
Platt used her cellular telephone to send messages.
Twenty to thirty minutes later, at around 4:03 P.M.,
someone opened fire on the vehicle. Bullets came through the
windshield and struck Alston, who was in the front passenger's
seat, multiple times in the right side of his neck, the right
side of his chest, and through his right elbow.4 Alston reached
down and put the vehicle in gear and told Platt, who was in the
driver's seat, to "go." Platt drove rapidly away from the scene
and sought help at a nearby gasoline station on the corner of
Moreland Street and Blue Hill Avenue. Emergency responders
pronounced Alston dead at the scene, and discovered that Platt
also had been shot; she was transported to the hospital in the
ambulance that had been summoned for Alston.
b. The investigation. i. Flight from the scene. Platt
did not see the shooting itself or anyone carrying a firearm;
3
The video surveillance system at the convenience store
showed Alston entering the store, making a purchase, and leaving
the store without speaking to anyone other than the cashier.
4
The medical examiner who performed the autopsy testified
that Alston died of gunshot wounds, and that three of the five
wounds independently could have been fatal.
5
she saw the windshield cracking and glazing and an individual
walking calmly away from the parked vehicle, along Dunreath
Street, who ignored her screams for help. She did not see
anyone else nearby. At trial, Platt described the individual,
whom she saw only from behind, as a black male wearing a white
and red shirt, khaki cargo shorts,5 a black and red hat, and
Chuck Taylor sneakers, a distinctive brand of shoes that were
primarily black but have a white "rubber front." She lost track
of him after driving past him on Dunreath Street.
Because Platt did not see the shooter's face, and thus was
unable to identify him, the Commonwealth relied on testimony
from a number of other witnesses to establish the defendant's
familiarity with the area near the shooting. His former girl
friend, who lived in that neighborhood, testified that the
defendant had grown up in the neighborhood and continued to come
by frequently to visit her. She testified that she spent the
evening of the shooting with the defendant "like a normal day,"
and that he had been "shocked" by the fact that a shooting had
taken place nearby.
5
Cargo pants are "loose-fitting, casual pants having a
number of cargo pockets, some typically on the side of the upper
leg." A cargo pocket, in turn, is "a capacious pocket sewn onto
the outside of a garment or bag, often having a flap and side
pleats." Webster's New World College Dictionary 226 (5th ed.
2016).
6
Another of the defendant's friends testified that, before
the shooting, he had seen the defendant in the neighborhood
several times a week, but, after the shooting, saw him in the
area much less frequently. When asked why he no longer spent
time in the area, the defendant replied "the block is hot,"
which his friend understood to mean that "there [are] cops
everywhere."
In addition to Platt's description of the shooter, the
Commonwealth introduced testimony from a number of witnesses
along the purported path of flight away from the scene of the
shooting. Byrain Winbush was at home watching television, near
the corner of Warren Street and Dunreath Street, when he heard a
series of shots, which sounded as though they had been fired
from a semiautomatic firearm. He looked out his window and
telephoned 911. Both in his testimony and in the audio
recording of the 911 call, which was played for the jury, he
described seeing a black male, whom he could see only from
behind, wearing "yellow shorts," a "white shirt," and socks and
sneakers, without a hat, running up the street. He could see
the individual's hands and did not notice a weapon. Although he
heard screaming and the sounds of "scattering" feet, he did not
see anyone else. The individual with the white shirt and yellow
shorts remained in view until he reached the corner of the
nearby park.
7
Leonor Woodson was sitting near the window of her home on
Dunreath Street, across the street from the park, when she heard
multiple gunshots and looked out the window. Her sister, Leila
Jackson, also heard the shots and ran to the window.6 Both saw a
black man wearing light pants with pockets on the side, a dark
colored jacket,7 and a cap8 "gallop[]" or run quickly down
Dunreath Street, turn into the park, then run through the park
and turn left onto Copeland Street. As the man ran, he held his
right side, either near the hip or the mid-thigh, as if there
were something in the pocket. Jackson said that the item
appeared to be "weighing him down." The sisters lost sight of
the man soon after he left the park and turned onto Copeland
Street. While the man was running past their house, Woodson saw
a light-colored vehicle drive quickly down Dunreath Street.
Nicolas Guerrero and Bryan Santiago were playing basketball
with Santiago's young son in the park between Dunreath and
Copeland Streets when they heard gunshots. A few seconds after
the shooting stopped, Santiago saw a white vehicle with a
shattered passenger's side window go past. Soon thereafter,
6
Leila Jackson died before the second trial. Her testimony
from the first trial was read in evidence.
7
Jackson described the jacket as "black." Woodson said it
was dark, but that it "wasn't black."
8
Jackson described the cap as black with a white brim,
while Woodson suggested it was brown.
8
both Guerrero and Santiago saw a man run past and then leave the
park. Both described him as holding the right pocket of his
shorts; Guerrero described the shorts as cargo shorts, and
Santiago described them as being in between "light brown" and
"dark brown." Santiago believed the man was holding something
relatively heavy in that pocket.
Jerome Baker was sitting on the porch of his house on
Copeland Street, across the park from Dunreath Street, when he
heard gunshots, which sounded like they were coming from the
other side of the park. He looked up and saw a vehicle "speed
away" down Dunreath Street. He then saw a man he knew at that
point only as "Mo," but whom he identified during his testimony
as the defendant, run through the park. He testified that he
believed the defendant had been wearing jeans, but agreed that
he had little recollection of the defendant's clothing and may
have thought that simply because the defendant frequently wore
jeans.
Joan and Joy Andrews9 were standing near each other on the
Copeland Street side of the park, watching a young girl who was
Joan's grandniece and Joy's granddaughter ride her bicycle
around the playground. They heard multiple gunshots in rapid
succession, coming from Dunreath Street. Both were focused on
9
Because they share a last name, we refer to Joan and Joy
Andrews by their first names.
9
protecting the child, but each saw at least one person running.
Joan testified that, after she left the park and had crossed the
street, she saw a man running out of the park, alone, wearing
cargo shorts. She said that the pocket on the right side of his
shorts was swinging as though it contained a heavy object. She
only saw the man from the side so was unable to distinguish his
face. He continued running on Copeland Street until he reached
Langford Park, a small, dead-end street, where he turned.
Although Joan knew a man "by the name of Mo," she could not
identify him as the person whom she saw running. Joy testified
that she saw "Mo" around the neighborhood "every day," and
recognized him as the first man from the area to get a job; she
identified him as the defendant in court. She recalled that,
immediately after hearing gunshots, she saw several people,
including Mo, running out of the park and onto Copeland Street,
but did not remember what Mo had been wearing.
Brian McClain was on the porch of his house on Langford
Park. He saw "Mo," whom he had known much of his life, and whom
he identified in court as the defendant, walking past and spoke
briefly to him. McClain was unable to remember anything about
the clothes the defendant had been wearing, did not remember
seeing the defendant running or clutching a leg or pocket, and
did not remember the defendant sweating or breathing heavily as
though he had been running. McClain saw "Mo" walk down the
10
street toward a hole in the fence that separated the dead-end
Langford Park from the properties on Perrin Street. McClain did
not see him go through the hole in the fence.
ii. Interviews of Platt. Investigating officers
interviewed Platt several times in order to obtain a description
of the shooter. At each interview, she gave generally
consistent accounts that varied somewhat in their detail. When
police first spoke to Platt at the gasoline station, she was
"very upset," crying, and unable to stand still. She described
the shooter as a younger black male, wearing a white T-shirt and
khaki pants.10 The interview ended after only a few minutes,
when the responding officer realized that Platt also had been
shot, in the hip, and she was transported to the hospital. At
4:08 P.M., the officer broadcast Platt's initial description
over the police radio. An audio recording of this broadcast was
played for the jury.
Detective Donald Lee, who had gone directly to the
hospital, spoke with Platt three times later that afternoon.
During the first interview, conducted while Platt awaited
10
A police officer interviewed a man who was nearby and
whose description matched that of the shooter. He was an
African-American male wearing a white T-shirt, khaki shorts, and
a black and gray Boston Bruins cap. During a brief
conversation, the man asked calmly, "Is he dead?" Police
completed a field interrogation and observation report, but
there is no indication that they pursued any further
investigation of this man.
11
treatment, she described a young black male, wearing a white T-
shirt and khaki pants. After another officer joined them, Lee
and that officer conducted another, recorded, interview. During
that interview, Platt described the man as a black male wearing
a white shirt, khaki shorts, a hat, and Chuck Taylor sneakers.
Lee broadcast this description over the police radio at
5:07 P.M. This broadcast, too, was played for the jury.
Lee returned to the hospital later that afternoon and
obtained a second recorded statement, also played for the jury,
in which Platt specified that the man had been wearing "solid
black" Chuck Taylor sneakers, a black hat "with a red brim,"
and, after some prompting, agreed that the white shirt "might a
had some red in it."
At trial, Platt testified that she saw a black male wearing
"khaki cargo shorts," a shirt with a "white and red
combination," a black hat with a red brim, and Chuck Taylor
sneakers.
iii. Cell site location information. Cell site location
information (CSLI) indicated that the defendant's cellular
telephone had been near the scene of the shooting at the
relevant time.11 State police Sergeant David Crouse testified
11
The jury learned that, to make or receive calls, a
cellular telephone transmits messages through radio waves to a
particular cellular service provider's network of cell site
towers. Each tower (base station) serves a particular "sector"
12
that, on the evening prior to the shooting, the CSLI showed a
cellular telephone that the defendant used routinely12 located in
a "wedge shaped" cell tower sector that included the area of the
shooting. Records indicated that, the following morning, the
cellular telephone was in a sector that included the defendant's
house on Cardington Street. That afternoon, the CSLI showed the
telephone at various locations in Roxbury other than the
defendant's house.
(geographic region) in the provider's network. The cell towers
send signals to each other, and, as an individual on an active
call moves from an area served by one cell tower to another, the
call will be handed off to a different cell tower. By
determining which cell site received the telephone's signals at
any given time, it is possible to determine, within certain
limitations, the approximate location of the telephone. Because
a cell tower's signal extends from two to ten miles, a given
cellular telephone call may be within range of multiple cell
sites at any given time.
State police Sergeant David Crouse testified that, at the
beginning of a call, a cellular telephone will connect to the
cell site which provides the strongest signal, typically, albeit
not always, the nearest one. Because the telephone may,
thereafter, be routed to a number of different cell sites within
range, he prepared his testimony on the basis of the cell sites
to which the telephone at issue initially connected. Both the
sergeant and the records custodian acknowledged that locations
derived from CSLI are not exact.
See, e.g., Commonwealth v. Gonzalez, 475 Mass. 396, 400
n.12 (2016); Commonwealth v. Augustine, 467 Mass. 230, 236-239
(2014), S.C., 470 Mass. 837 and 472 Mass. 448 (2015).
12
Although the defendant's mother was the listed subscriber
in the telephone company's records, the defendant told
detectives that the telephone number was his.
13
The shooting occurred at approximately 4:03 P.M. on
April 17, 2012. According to Crouse, the CSLI showed that, at
3:58 P.M., a call was made from the defendant's cellular
telephone while it was located in a sector that included the
scene of the shooting, and at 3:59 P.M., a call was made while
the telephone was located in an adjacent sector. Those two
sectors overlapped in a relatively small area covering the
location of the shooting. Crouse testified that, to have moved
from one sector to the other within such a short period of time,
the person using the cellular telephone was probably "really
close to where those two sectors meet." The telephone was not
used again, for incoming or outgoing calls, until 4:09 P.M., at
which point the CSLI showed it as being located in the vicinity
of the shooting. At 4:14 P.M., a call was made from a sector
including the area near the defendant's house. At 4:34 P.M.,
police spoke with the defendant near his house.
iv. The defendant's encounters with police. Boston police
Officer Brian Johnson, who knew the defendant from prior
interactions, had spoken to him on the evening of April
16, 2012, near the area where the shooting took place the
following day. That evening, the defendant was wearing a black
hat with a red Ralph Lauren Polo brand emblem. The following
day, Johnson was called to respond to a shooting. When he
learned that it had taken place at the park on Dunreath Street,
14
he went to the defendant's house -- located roughly an eighteen-
minute walk, and less than a five-minute drive, away from the
crime scene -- in order to speak to him, as he knew the
defendant regularly frequented the area around that park.
Johnson received an initial description of the suspect, i.e., a
black male with a white T-shirt and khaki pants. Around 4:34
P.M., while en route to the defendant's house, Johnson saw the
defendant walking on Cobden Street, approximately one block from
his house. He was wearing a white T-shirt with a large gray and
red design on the front, the same black Polo cap with a red
emblem that he had worn the previous night, khaki cargo shorts,
black sneakers with a red stripe near the sole, and short white
athletic socks. Johnson performed a patfrisk of the defendant
and found no weapons.
The defendant told Johnson that he was on his way to a
nearby pharmacy to meet his mother. After the defendant left,
police went to the defendant's mother's house and spoke briefly
with her. She said that, although she had spoken to the
defendant earlier in the day, she had no plans to meet him.
After police received Lee's broadcast from the hospital,
containing Platt's somewhat more detailed description of the
suspect, and noted that it remained generally consistent with
that of the defendant, Johnson and his partner were asked to
speak with the defendant again. They again found him on Cobden
15
Street, near his house. One of the officers asked the defendant
if he would speak with them for a few minutes, and he agreed to
do so. At that point, the defendant's demeanor was "very
casual." Soon thereafter, two detectives who had been at the
hospital joined them. At some point, an officer took
photographs of the defendant,13 and of a friend who was with him.
When the detectives began the interview, the defendant was
polite but was "showing some signs of anxiety." He reiterated
that he had been at his house all day, and that he had not been
near the park on Dunreath Street.
The detectives made a series of requests of the defendant.
The defendant agreed to be photographed, and to give the
detectives his and his mother's cellular telephone numbers. He
also agreed to have his hands tested for gunshot residue,14 but
declined to go to the hospital to be viewed by Platt.15 The
defendant told the officers that he was left-handed, but
subsequently he was seen signing a document with his right hand.
13
Several of these photographs of the defendant were
introduced at trial.
14
One of the police officers testified that when a gun is
fired, "gases, smoke and remnants of gunshot" are discharged.
This can leave residue on the hands of the individual who fired
it.
15
The officers testified that they in fact had not intended
to perform gunshot residue testing or to bring the defendant to
the hospital, but made both requests to gauge the defendant's
reaction.
16
After some discussion, the defendant asked if he was free to
leave and, when told that he was, walked away.
v. Forensic evidence. Sergeant Detective Paul McLaughlin
and other members of the Boston police department's homicide
unit arranged for Platt's vehicle to be towed to Boston police
headquarters. It had bullet holes through the hood and the
windshield, a bullet lodged in the hood, and two bullets in the
passenger seat.16 In addition, police recovered shell casings
from Dunreath Street. The shell casings, the bullets recovered
from the vehicle, and the bullets removed from Alston's body all
came from the same semiautomatic .45 caliber firearm.
2. Discussion. a. Sufficiency of the evidence. As
stated, the primary issue at trial was the identity of the
shooter. The defendant contends that the evidence at trial was
insufficient as a matter of law to support his conviction of
murder in the first degree, and therefore that his motion for a
required finding should have been allowed.17 We consider this
claim to determine whether, viewing the evidence in the light
most favorable to the Commonwealth, any rational finder of fact
16
The vehicle was tested for fingerprints. Although some
were recovered, there was "nothing that led . . . anywhere in
the investigation."
17
The defendant moved for a required finding of not guilty
at the close of the Commonwealth's case and at the close of all
the evidence. The judge denied the motions. She later denied
the defendant's motion for postconviction relief, seeking to set
aside the verdict.
17
could have found each of the elements of the offense beyond a
reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671,
676-677 (1979). A conviction may rest exclusively on
circumstantial evidence, and, in evaluating that evidence, we
draw all reasonable inferences in favor of the Commonwealth.
See, e.g., Commonwealth v. Lydon, 413 Mass. 309, 312 (1992). A
conviction may not, however, be based on conjecture or on
inference piled upon inference. See, e.g., Commonwealth v.
Mazza, 399 Mass. 395, 399 (1987).
The Commonwealth primarily relied on three types of
evidence to establish that the defendant was the shooter.
First, the Commonwealth introduced evidence of the flight path
of the single person seen at the scene of the shooting who
generally matched the description of the defendant. In light of
witness testimony that this man ran alone, from near the
victim's vehicle down Dunreath Street and into the park,
clutching something in his pocket consistent with a firearm, the
jury reasonably could infer that he was the shooter. Although
witnesses gave somewhat varying descriptions, all (save two who
could not identify his race) described him as black or dark-
skinned, and most agreed he was wearing cargo shorts. Those who
saw him from behind were confident that he was wearing a white
or primarily white T-shirt, while those who saw him from the
front provided a more varied description of his clothing.
18
Multiple witnesses described him as wearing a black cap and
sneakers; Platt provided a more specific description of each,
identifying a black cap with some red and the sneakers as black
Chuck Taylor ones.
The unidentified runner was linked with the defendant in
several ways. First, he was seen turning onto Langford Park as
he fled; the defendant's friend McClain testified that he saw
the defendant on Langford Park that afternoon. Second, shortly
after the shooting, police encountered and photographed the
defendant wearing clothes consistent with the descriptions given
by eyewitnesses: a black and red hat, a white shirt with a dark
design on the front, khaki cargo shorts, and black sneakers --
albeit not the distinctive Chuck Taylor brand. Also, several
witnesses, some of whom had known the defendant since childhood,
testified to the defendant's knowledge of the scene. The jury
could have found that the defendant grew up in the area and
spent time there multiple times per week. More particularly,
through the CSLI information concerning the location of the
defendant's cellular telephone, and the identifications by
several witnesses who had lengthy acquaintances with the
defendant, the jury could have found that the defendant was
present at or near the park on Dunreath Street at the time of
the shooting.
19
In addition, the Commonwealth introduced evidence of the
defendant's consciousness of guilt. Such evidence is probative
and can, in conjunction with other evidence, support a verdict
of guilt. See Commonwealth v. Doucette, 408 Mass. 454, 461
(1990). The Commonwealth presented evidence that the defendant
lied to police, both about his whereabouts on the day of the
shooting, claiming that he had been home all day despite
evidence linking him to the neighborhood of the shooting, and
also about his dominant hand. The jury also heard evidence
that, although the defendant previously regularly had spent time
in the area of the shooting, after the shooting, he avoided the
area; when asked why he had not been around, he explained that
there was a heavy police presence.
Although these discrete pieces of evidence, standing alone,
might not be sufficient to sustain a conviction, together they
formed a "mosaic" of evidence such that the jury could conclude,
beyond a reasonable doubt, that the defendant was the shooter.
Commonwealth v. Salim, 399 Mass. 227, 233 (1987). Cf. Lydon,
413 Mass. at 312-313 (upholding conviction based on defendant's
regular presence at location of shooting, his capture in vehicle
generally consistent with one identified at scene, his
consciousness of guilt, his prior threats to victim, and
recovery of weapon used in killing on road traveled by
defendant). While not overwhelming, the evidence would have
20
permitted the jury to infer guilt from the combination of the
defendant's presence in the area of the shooting, his
consciousness of guilt, and the similarity between his clothing
and the clothing worn by the sole person seen fleeing the
scene.18 There was no error, therefore, in the judge's denial of
the defendant's motion for a required finding.19
18
The defendant's effort to analogize the circumstances
here to cases such as Commonwealth v. Mazza, 399 Mass. 395, 399-
400 (1987), is unavailing. In that case, we determined that the
defendant's mere presence at the scene of the crime, at a time
that could not be connected to the victim's death, coupled with
evidence of consciousness of guilt, was insufficient to sustain
a conviction. See id. Here, by contrast, there was evidence
that the defendant was present at the scene at the time of the
shooting and that his physical description matched, at least to
some degree, a number of witnesses' descriptions of the sole
person leaving the scene.
19
Although the defendant does not contend that the evidence
was insufficient to prove beyond a reasonable doubt the
remaining elements of murder in the first degree by deliberate
premeditation or extreme atrocity or cruelty, we nevertheless
have reviewed the record pursuant to our duty under G. L.
c. 278, § 33E, and conclude that the evidence was sufficient to
sustain a conviction on both theories.
To prove murder in the first degree on a theory of
deliberate premeditation, the Commonwealth must show beyond a
reasonable doubt that the defendant intentionally caused the
victim's death and that he or she did so with deliberate
premeditation. That the shooter carried a loaded gun to the
scene and shot an unarmed victim five times was sufficient to
make this showing. See Commonwealth v. Andrews, 427 Mass. 434,
440-441 (1998).
To prove murder in the first degree on a theory of extreme
atrocity or cruelty, the Commonwealth must show beyond a
reasonable doubt that the defendant caused the victim's death
with the intent to kill, with the intent to cause grievous
bodily harm, or with the intent to do an act that the defendant
21
b. Peremptory challenge of a prospective juror. The
defendant contends that the judge abused her discretion by
declining to require the prosecutor to provide an adequate and
genuine race-neutral reason for her peremptory challenge to an
African-American member of the venire. See Commonwealth v.
Oberle, 476 Mass 539, 545 (2017).
The Fourteenth Amendment to the United States Constitution
and art. 12 of the Massachusetts Declaration of Rights prohibit
a party from exercising a peremptory challenge on the basis of
race.20 See Batson v. Kentucky, 476 U.S. 79, 95 (1986);
Commonwealth v. Soares, 377 Mass. 461, 486, cert. denied, 444
U.S. 881 (1979). While the inquiries under the Federal and
State Constitutions each have a different focus, they lead to
the same conclusion. See Commonwealth v. Benoit, 452 Mass. 212,
should have known was likely to cause death. It must further
prove beyond a reasonable doubt that the defendant acted with
extreme atrocity or cruelty. The evidence was sufficient to
show intent to kill and at least two of the seven Cunneen
factors sufficient to establish extreme atrocity or cruelty.
See Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). That
the victim remained conscious long enough to put the vehicle in
gear showed his consciousness of suffering, see Commonwealth v.
Brown, 474 Mass. 576, 579 (2016), and expert testimony that
three of the five gunshots each independently might have been
enough to kill the victim established a disproportion between
the means necessary to cause death and those employed. See
Commonwealth v. James, 427 Mass. 312, 313-314 (1998).
20
A peremptory challenge on the basis of membership in
other constitutionally protected groups, such as sex, also is
prohibited. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127,
130 (1994); Commonwealth v. Soares, 377 Mass. 461, 488-489,
cert. denied, 444 U.S. 881 (1979).
22
218 n.6 (2008). The Federal inquiry turns on the right of the
prospective juror to be free from discrimination in the exercise
of his or her right "to participate in the administration of the
law." Id., quoting Strauder v. West Virginia, 100 U.S. 303, 308
(1880). The question under our Declaration of Rights, on the
other hand, focuses on the defendant's right to be tried by a
fairly drawn jury of his or her peers. See Benoit, supra;
Soares, supra at 488. "Regardless of the perspective from which
the problem is viewed, [however,] the result appears to be the
same." Benoit, supra. A party may no more seek to strike a
single prospective juror on the basis of his or her race than
attempt to strike all members of a particular race. See Snyder
v. Louisiana, 552 U.S. 472, 478 (2008); Commonwealth v. Lacoy,
90 Mass. App. Ct. 427, 431 (2016).
A challenge to a peremptory strike, whether framed under
State or Federal law, is evaluated using a burden-shifting
analysis. In the initial stage, the burden is on the party
challenging the peremptory strike to make a prima facie showing
that the strike is improper. If the party does so, the burden
shifts to the party attempting to strike the prospective juror
to provide a group-neutral reason for doing so. The judge then
must determine whether the proffered reason is adequate and
genuine. See, e.g., Benoit, 452 Mass. at 218-220. An appellate
court reviews the trial judge's decision to allow the juror to
23
be struck for abuse of discretion. See, e.g., Commonwealth v.
Issa, 466 Mass. 1, 10 (2013). The question in this case is
whether, as to the first part of this three-part inquiry, the
judge abused her discretion in declining to find that the
defendant had made a prima facie showing of impropriety in the
prosecutor's peremptory challenge of prospective juror no. 143.
The defendant first lodged an objection to the prosecutor's
use of the peremptory challenge after the Commonwealth had
challenged juror no. 113B, an African-American.21 At that point,
no African-Americans had been seated, and the prosecutor had
used peremptory challenges to exclude four prospective jurors
who were African-American, and seven prospective jurors of other
races. The judge determined that the defendant had made a prima
facie showing of improper use of the peremptory challenge, and
required the prosecutor to provide an adequate and genuine race-
neutral reason for her decision to strike. The prosecutor
provided such an explanation, pointing out that the prospective
juror, whose native language was not English, seemed to have
some difficulties with his comprehension of English. The judge
deemed the explanation satisfactory, and also noted additional
concerns the juror had raised about his young child, who was
21
Two members of the venire were identified in the record
as "Juror number 113." Following the lead of the parties, we
refer to the challenged juror, who was the second of the two to
be called to voir dire, as "juror no. 113B."
24
facing surgery. The defendant does not contest this
determination on appeal.
The defendant again challenged the prosecutor's use of
peremptory strikes after she attempted to strike juror no. 143,
also an African-American. Between the dismissal of juror no.
113B and the voir dire of juror no. 143, one African-American
juror and one juror of another race had been seated without
challenge by either party,22 and, in addition to juror no. 143,
the prosecutor had struck one juror who was not African-
American. Thus, at that point, the Commonwealth had used
peremptory challenges against five prospective jurors who were
African-American and eight other prospective jurors, while one
African-American and six jurors of other races had been
empanelled. The defendant had exercised eight peremptory
strikes that were not challenged; the record is silent as to the
race of any of those jurors.
In considering the defendant's challenge to the
prosecutor's exercise of a peremptory challenge to strike
juror no. 143, the judge, persuaded by the presence of a single
African-American on the empanelled jury, determined that the
defendant had not met his prima facie burden. After some
initial confusion regarding the racial composition of the seated
22
The African-American who had been empanelled was
juror no. 117. This juror was the next to be called to voir
dire following the defendant's first Batson-Soares challenge.
25
jurors, the judge declined to require the prosecutor to offer an
adequate and genuine race-neutral reason for the strike. The
judge commented:
"I think we're still in the same position as we were
the last time relative to the prima facie showing of
irregularity. There are no -- strike that. I just noticed
there is an African-American woman on the jury. I forgot
about her, the woman who works as a member of the Board of
Bar Overseers. That being the case, . . . I cannot find
that you have made a prima facie showing, because I'm
entitled to look at the composition of the jury. And of
the seven [empanelled] jurors there is an African-American
woman on this jury."
It is this decision which the defendant maintains was an
abuse of discretion; we agree. Peremptory challenges are
presumed to be proper, but rebutting the presumption of
propriety is not an onerous task. By their nature, peremptory
challenges "permit[] 'those to discriminate who are of a mind to
discriminate'" (citation omitted). Batson, 476 U.S. at 96. In
light of this, and in order "to ensure that the important
protections set forth in [Batson and Soares] are fully adhered
to, the burden of making [the prima facie] showing ought not be
a terribly weighty one." Commonwealth v. Maldonado, 439 Mass.
460, 463 n.4 (2003).
The United States Court of Appeals for the First Circuit
has called the first stage burden "not substantial." Sanchez v.
Roden, 753 F.3d 279, 302 (1st Cir. 2014), quoting Aspen v.
Bissonnette, 480 F.3d 571, 574 (1st. Cir.), cert. denied, 552
26
U.S. 934 (2007), appropriately characterizing it as being merely
a burden of production, not persuasion. See Sanchez, supra at
306. See also Johnson v. California, 545 U.S. 162, 168 (2005)
(rejecting requirement that discrimination be "more likely than
not" in order to make prima facie showing); Aspen, supra at 575
(rejecting requirement that discrimination be "likely"). Given
the relative ease with which a party can make the necessary
prima facie showing, we have urged "judges to think long and
hard before they decide to require no explanation . . . for [a]
challenge." Issa, 466 Mass. at 11 n.14.23
When evaluating whether the party challenging the strike
has met the relatively low bar of a prima facie showing, a trial
judge is to consider all of the relevant facts and
circumstances. See Batson, 476 U.S. at 96; Sanchez, 753 F.3d at
299-300. The inquiry ordinarily begins with the number and
percentage of group members who have been excluded. See Issa,
466 Mass. at 9. This factor can, in certain circumstances,
itself suffice to make the requisite prima facie showing. See
23
Some jurisdictions have eliminated the need to make a
prima facie showing, and require a race-neutral reason whenever
a Batson challenge is made. See Commonwealth v. Maldonado, 439
Mass. 460, 463 n.4 (2003), citing State v. Holloway, 209 Conn.
636, 645-646, cert. denied, 490 U.S. 1071 (1989), State v.
Johans, 613 So. 2d 1319, 1321 (Fla. 1993), State v. Parker,
836 S.W.2d 930, 939 (Mo.), cert. denied, 506 U.S. 1014 (1992),
and State v. Chapman, 317 S.C. 302, 305-306 (1995), overruled on
other grounds, State v. Adams, 322 S.C. 114 (1996).
27
id. Other factors to consider may include:24 the possibility of
an objective group-neutral explanation for the strike or
strikes;25 any similarities between excluded jurors and those,
not members of the allegedly targeted group, who have been
struck; differences among the various members of the allegedly
targeted group who were struck;26 whether those excluded are
members of the same protected group as the defendant or the
victim;27 and the composition of the jurors already seated. See
Miller-El v. Dretke, 545 U.S. 231, 241 (2005); Issa, 466 Mass.
at 10-11; Sanchez, 753 F.3d at 302; State v. Rhone, 168 Wash. 2d
645, 656, cert. denied, 562 U.S. 1011 (2010).
24
This list of factors is neither mandatory nor exhaustive;
a trial judge and a reviewing court must consider "all relevant
circumstances" for each challenged strike. See Batson v.
Kentucky, 476 U.S. 79, 96 (1986). See also People v. Rivera,
221 Ill. 2d 481, 501 (2006) (citing seven such factors); State
v. Rhone, 168 Wash. 2d 645, 656, cert. denied, 562 U.S. 1011
(2010) (listing eight factors and noting they are "not
exclusive").
25
This factor overlaps with the analysis at the second and
third stages, in which the proponent of the strike must provide
an adequate and genuine group-neutral reason to justify it; such
considerations may play a role in the first-step analysis as
well.
26
Because the record does not reveal which of the
prospective jurors struck by the Commonwealth, other than
jurors nos. 113B and 143, were African-American, we cannot
evaluate this factor.
27
This factor does little to tip the balance in either
direction here. The defendant and both of the alleged victims
were members of the same protected group as the excluded juror.
See Commonwealth v. Issa, 466 Mass. 1, 11 (2013).
28
In many respects, this case is similar to Sanchez, in which
the First Circuit concluded that the judge abused his discretion
in failing to find that the defendant had made a prima facie
showing of impropriety in a peremptory strike. See Sanchez, 753
F.3d at 299. We look to many of the same factors as the Sanchez
court did, and turn first to the numerical considerations: the
raw number of African-American prospective jurors struck up to
that point, and the percentage of such jurors struck.
The raw number of African-American prospective jurors
struck, standing by itself, is inconclusive here. The
prosecutor excluded five African-American members of the venire,
a number comparable to the four persons of color whose exclusion
was challenged in Sanchez, supra at 303. Cf. Issa, 466 Mass. at
10 (judge could have found, but was not required to find, prima
facie showing where prosecutor excluded one African-American
prospective juror, who was last such juror in venire).
On the other hand, the percentage of African-American
prospective jurors struck suggests that the defendant made the
necessary prima facie showing.28 At the time when the defendant
raised his second Batson-Soares objection, to the peremptory
strike of juror no. 143, the prosecutor had struck five African-
American prospective jurors and one such juror had been
28
As was the case in Sanchez, 753 F.3d at 307, the record
is not entirely clear.
29
empanelled. For comparison, the prosecutor had struck eight
prospective jurors of other races, but six jurors of other races
had been empanelled. Because the record does not disclose
whether one or more African-Americans had not been challenged by
the Commonwealth, but subsequently had been struck by the
defendant, we cannot say with certainty, as the defendant would
have us do, that the prosecutor struck five of six -- or more
than eighty-three per cent -- of African-Americans whom the
judge declared indifferent. Nevertheless, it seems that the
prosecutor exercised a disproportionate number of her peremptory
challenges against African-Americans, challenging a much higher
percentage of African-American members of the venire than of
prospective jurors of other races. See Commonwealth v.
Hamilton, 411 Mass. 313, 316-317 (1991) (concluding prima facie
showing had been made solely on basis that prosecutor challenged
sixty-seven per cent of African-American members of venire
compared to fourteen per cent of Caucasian members of venire).
Contrast Issa, 466 Mass. at 10 (no indication of
disproportionate use of peremptory strikes).
Moving beyond purely numerical considerations, the
possibility that juror no. 143 was struck because of her race is
heightened by the fact that the record reveals no race-neutral
reason that might have justified the strike. See Sanchez, 753
F.3d at 303 ("Juror . . . answered all . . . questions
30
appropriately, and nothing . . . casts doubts on his ability
to . . . follow . . . instructions or evaluate the evidence
fairly and impartially"). Like all of the jurors who had been
seated, juror no. 143 gave brief, straightforward, and
appropriate answers to the voir dire questions, and no issues of
bias or competence were raised. Contrast Issa, 466 Mass. at 11,
where our determination that the judge did not abuse his
discretion in failing to find a prima facie showing of
discrimination took into account the prosecutor's possible
recognition of the prospective juror whom she struck. Here, on
the other hand, we discern no objective reason that juror no.
143 could not have served.
The significant similarities between juror no. 143 and
other prospective jurors to whom the prosecutor did not object
further strengthen the possibility that juror no. 143 was struck
because of her race. See, e.g., Sanchez, 753 F.3d at 302 (focus
on "whether similarly situated jurors [of other races] were
permitted to serve" [citation omitted]). The prosecutor only
briefly questioned juror no. 143 before exercising the
peremptory strike, and the questions she asked her had not been
asked of most of the previous prospective jurors, so any
detailed comparison is difficult. Compare id. at 304 (record
permitted detailed comparison with one particular juror who was
not African-American). It is, nonetheless, telling that the
31
prosecutor did not strike prospective jurors with
characteristics similar to those of juror no. 143, who either
were not African-American or whose race is not evident from the
record.
In response to questioning from the prosecutor, juror no.
143 revealed that she worked by herself rather than with others,
that that she or a member of her family previously had served on
a jury, and that she had attended high school outside the United
States. With the exception of her education outside the United
States, elicited in response to a question asked of too few
jurors to allow for comparison, her responses did not
differentiate her from other prospective jurors. At least two
other prospective jurors, including a non-African-American juror
who was seated, had previous experience with jury service, while
others, again including a non-African-American who was seated,
did not work with others.29
In concluding that the defendant had not met his minimal
prima facie burden, the judge appears to have relied primarily,
if not exclusively, on the presence of the single African-
American who at that point had been seated. That juror,
juror no. 117, was seated immediately following the defendant's
first Batson-Soares challenge to juror no. 113B, where the judge
29
In addition, the prosecutor struck several jurors who
reported that they did work with others.
32
without hesitation had determined that the defendant had made a
prima facie showing of discrimination.30
While it is permissible for a judge to consider the
composition of the empanelled members of the jury, insofar as it
may affect whether he or she infers discrimination in the strike
under review, see Commonwealth v. Scott, 463 Mass. 561, 571
(2012); Scott v. Gelb, 810 F.3d 94, 103 (1st Cir. 2016) (denying
habeas corpus in same case), that is only one factor among many,
and must be assessed in context. The presence of one empanelled
African-American juror, as appears to have been the case here,
cannot be dispositive. Indeed, in Sanchez, five African-
Americans already had been seated. See Sanchez, 753 F.3d at
303. As the court explained in that case, to place undue weight
on this factor not only would run counter to the mandate to
consider all relevant circumstances, see Batson, 476 U.S. at 96-
97, but also would send the "unmistakable message that a
prosecutor can get away with discriminating against some African
Americans . . . so long as a prosecutor does not discriminate
30
While a judge must evaluate each such challenge on the
facts known at the time, we note that little had changed since
the judge had found a prima facie showing of discrimination.
Between the two challenges, the prosecutor had exercised two
peremptory strikes, one against juror no. 143, an African-
American, and one against a juror who was not African-American.
The proportion of the Commonwealth's strikes exercised against
African-Americans, therefore, actually had increased slightly,
from four out of eleven to five out of thirteen.
33
against all such individuals" (emphasis in original). See
Sanchez, supra at 299.
Consideration of all relevant circumstances compels the
conclusion that the defendant made the limited showing necessary
to make out a prima facie showing of discrimination, and that
the judge abused her discretion by finding otherwise. Had the
judge allowed the inquiry to go forward, the prosecutor might
well have proffered an adequate and genuine race-neutral reason
for her strike of juror no. 143. Because the judge did not do
so, and because a Batson-Soares error constitutes structural
error for which prejudice is presumed,31 we vacate the
convictions and remand the case to the Superior Court for a new
trial.32
31
In this case, we reach only the first step of the Batson-
Soares analysis, and acknowledge the constitutionally
permissible option of remanding for an evidentiary hearing at
which the Commonwealth would bear the burden of establishing a
race-neutral justification for the challenge which would render
the judge's error harmless. See, e.g., Sanchez v. Roden, 753
F.3d 279, 307 (1st Cir. 2014). We have long disfavored this
approach, however, on the ground that "the conditions of the
empanelment . . . cannot be easily recreated." Soares, 377
Mass. at 492 n.37. See Issa, 466 Mass. at 11 n.14 (error in
failing to find prima facie showing of discrimination "unlikely
to be harmless").
32
We discern no merit in the Commonwealth's argument that
the defendant waived the Batson-Soares issue either by failing
to object a second time following the judge's determination that
he had not made the necessary prima facie showing, or by
mentioning only Soares, 377 Mass. 461, rather than both Soares
and Batson, 476 U.S. 79.
34
c. Issues on retrial. We discuss briefly those issues
which may occur at a new trial.33
i. Refusal evidence. On cross-examination of Johnson, one
of the investigating officers who spoke with the defendant,
defense counsel elicited testimony that the defendant willingly
spoke to police, that he was polite, and that he consented to
have his hands swabbed for gunshot residue. On redirect
examination of Johnson, and again on direct examination of
Sergeant Thomas O'Leary, the Commonwealth then elicited
testimony that the defendant refused to go to the hospital to be
viewed by Platt, the surviving victim.
To be sure, absent a defendant "opening the door" to such
testimony, admission of "refusal" evidence violates a
defendant's right against self-incrimination. See art. 12 of
the Massachusetts Declaration of Rights; Commonwealth v. Conkey,
430 Mass. 139, 141-142 (1999), S.C., 443 Mass. 60 (2004).34 To
33
We do not reach the defendant's claim that the judge
improperly limited his cross-examination of Detective Donald
Lee, noting only that the trial judge has discretion to
determine the proper scope of cross-examination. See
Commonwealth v. Johnson, 431 Mass. 535, 540 (2000). Nor do we
address the defendant's claim that his trial counsel rendered
ineffective assistance.
34
For example, while a defendant's compelled production of
a writing exemplar does not violate his or her privilege against
self-incrimination, the Commonwealth ordinarily may not
introduce evidence of a defendant's refusal to participate
voluntarily in such a procedure; the latter, unlike the former,
is testimonial evidence protected under art. 12 of the
35
the extent that the defendant leaves the jury with a false or
misleading impression, however, he thereby opens the door to the
Commonwealth's introduction of pertinent refusal evidence on
that issue to correct the misimpression created. See
Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 104 (2001)
(where defense counsel elicited testimony that defendant was not
subjected to field sobriety test, Commonwealth was entitled to
elicit testimony that defendant refused); Commonwealth v.
Johnson, 46 Mass. App. Ct. 398, 405-406 (1999) (where defendant
testified that he "did not disguise his voice" during
identification procedure, Commonwealth was entitled to elicit
testimony that defendant twice failed to show up for voice
identification). Cf. Commonwealth v. Toolan, 460 Mass. 452, 471
(2011) (where defendant puts voluntariness of statement at
issue, prosecutor may introduce post-Miranda silence to show
voluntariness). To the extent that defense counsel elicited on
cross-examination of Johnson that the defendant had been willing
to be swabbed for gunshot residue, was willing to turn over his
Massachusetts Declaration of Rights. See Opinion of the
Justices, 412 Mass. 1201, 1209 (1992) (discussing difference
between testimonial and real evidence). While this distinction
is well established as a matter of Massachusetts law, the United
States Supreme Court has reached the opposite conclusion under
the cognate provision of the Federal Constitution, see South
Dakota v. Neville, 459 U.S. 553, 564 (1983) (refusal to take
breathalyzer admissible under Fifth Amendment to United States
Constitution), as have many other States under the cognate
provisions of their State Constitutions.
36
and his mother's telephone numbers, and was otherwise generally
cooperative, the door was surely open to refusal evidence as to
the topics he raised. The question here is how widely the door
was opened. Otherwise put, the question is whether the
defendant, by eliciting evidence to show he cooperated in
certain respects, thereby allowed the Commonwealth to elicit
refusal evidence showing he did not cooperate in a different
respect.
In decisions to date, the admitted refusal evidence has
been confined to the discrete issue with regard to which the
defendant elicited evidence. See Beaulieu, 79 Mass. App. Ct. at
104; Johnson, 46 Mass. App. Ct. at 405-406. In addition to
assuring that the risk of undue prejudice from the proffered
testimony does not outweigh its probative value, see
Commonwealth v. Crayton, 470 Mass. 228, 249 & n.27 (2014), it is
the better part of wisdom, in such circumstances, given the
constitutional protection accorded to testimonial refusal
evidence, to view the door as having been left ajar rather than
wide open. Had the defendant only elicited testimony that he
had consented to gunshot residue testing, refusal evidence, if
any, limited to that discrete issue, would be proper. That
being said, to the extent that the defendant here elicited
considerable evidence creating the impression of full
cooperation with the police, evidence as to his refusal to
37
cooperate by allowing Platt to see him at the hospital was
probative of that issue. Given this, it was not an abuse of
discretion to allow the Commonwealth to inquire on redirect
examination of Johnson as to the challenged refusal evidence.
Because such evidence should be admitted charily, however, it
should not have been allowed to come in a second time on the
direct examination of O'Leary.35
ii. Police radio broadcast. At trial, the Commonwealth
played a police radio broadcast in which Lee, one of the
detectives who interviewed Platt at the hospital, thereafter
relayed the description of the suspect that Platt had given him:
"a young male with khaki shorts, Chuck Taylor sneakers, a white
and red shirt, and a black and red baseball cap." The defendant
maintains that this broadcast was hearsay and should not have
been admitted. The Commonwealth contends that it was admissible
for two reasons: to show the state of police knowledge, and as
an earlier out-of-court identification of the defendant by a
testifying witness. Neither is persuasive.
35
The Commonwealth also contends that the admission of
refusal evidence was proper to rebut a defense of insufficient
police investigation. See generally Commonwealth v. Bowden, 379
Mass. 472 (1980). Insofar as police, by their own admission,
did not intend to have the defendant viewed by the surviving
victim even if he had consented, this argument fails. Contrast
Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 103-105 (2001)
(police intended to perform field sobriety testing if defendant
consented).
38
As to the first reason, the Commonwealth argues that the
radio broadcast showed the state of police knowledge and thereby
provided the jury with context for the detectives' decision to
speak repeatedly to the defendant after the shooting. See
Commonwealth v. Miller, 361 Mass. 644, 659 (1972). Hearsay
admitted for this purpose, however, rarely should give such a
specific description; instead, "a statement that an officer
acted 'upon information received,' . . . or words to that
effect" is sufficient. See Commonwealth v. Rosario, 430 Mass.
505, 510 (1999), quoting McCormick, Evidence § 249 (E. Cleary 3d
ed. 1984). Even in that event, such evidence would require a
limiting instruction, not given here, that it cannot be used for
the truth of the description it contains.
In reliance on Mass. G. Evid. § 801(d)(1)(C) (2017), and
cases cited, the Commonwealth also maintains that the radio
broadcast is admissible for its truth insofar as Platt testified
at trial and the broadcast "identifies the person as someone the
declarant [Platt] perceived earlier." Quite apart from the
failure to overcome the totem pole hearsay aspect of the
challenged broadcast, Platt did not see the shooter, nor could
she identify the defendant as the shooter. While in certain
instances a description of a person's characteristics, rather
than an identification of a specific person, can constitute an
identification for purposes of the aforesaid rule, see, e.g.,
39
Commonwealth v. Weichell, 390 Mass. 62, 72 (1983), cert. denied,
465 U.S. 1032 (1984) (approving admission of detailed facial
description of perpetrator), the description here was simply too
vague to qualify.
iii. Instruction on circumstantial evidence. The judge
informed the venire, before empanelment, that the case likely
would turn on circumstantial evidence, and that such evidence,
like direct evidence, was sufficient to prove guilt beyond a
reasonable doubt. This was a correct statement of the law, and
often is given during a judge's charge. See Commonwealth v.
Colon-Cruz, 408 Mass. 533, 556 (1990). See also Massachusetts
Superior Court Criminal Practice Jury Instructions § 1.3 (Mass.
Cont. Legal Educ. 2d ed. 2013). To the extent that the
defendant contends that such an instruction, while appropriate
after the close of all the evidence, is inappropriate to give to
the venire before trial, we disagree. In Commonwealth v.
Andrade, 468 Mass. 543, 548-549 (2014), for example, we held
that a judge does not abuse his or her discretion by taking the
stronger step of asking prospective jurors individually whether
they would be able to convict on the basis of circumstantial
evidence, and striking for cause those who answer in the
negative.
iv. Instruction on mere presence. The defendant contends
that he is entitled to an instruction that his mere presence at
40
the scene of the shooting is not sufficient to convict. While
such an instruction is permissible, we decline to require it,
insofar as the standard instructions regarding the elements of
the offenses adequately cover the issue. See Commonwealth v.
Hoose, 467 Mass. 395, 412 (2014) (no specific instruction
necessary where Commonwealth's burden of proof adequately
explained by standard instruction). The judge correctly
instructed the jury that, in order to convict the defendant of
murder in the first degree, they must find that the defendant
"caused the death" of the victim and that he "consciously and
purposefully intended to cause" the victim's death.36 A
reasonable jury could not find these elements beyond a
reasonable doubt based on the defendant's mere presence in a
public park.
3. Conclusion. The defendant's convictions are vacated
and set aside. The case is remanded to the Superior Court for
further proceedings consistent with this opinion.
So ordered.
36
Similarly explicit instructions were given regarding the
elements of the other crimes with which the defendant was
charged.