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SJC-13369
COMMONWEALTH vs. FRANKLIN CONZA.
Hampden. February 6, 2026. – May 5, 2026.
Present: Budd, C.J., Kafker, Wendlandt, Georges, & Dewar, JJ.
Homicide. Mental Health. Criminal Responsibility. Practice, Criminal, Jury and jurors, Argument by prosecutor, Voluntariness of statement, Motion to suppress, Capital case. Evidence, Bias, Argument by prosecutor, Expert opinion, Inference, Photograph, Relevancy and materiality, Voluntariness of statement. Jury and Jurors. Witness, Expert. Constitutional Law, Voluntariness of statement.
Indictment found and returned in the Superior Court Department on August 2, 2018.
A pretrial motion to suppress evidence was heard by Edward J. McDonough, Jr., J., and the case was tried before him.
William S. Smith for the defendant. Travis H. Lynch, Assistant District Attorney, for the Commonwealth.
WENDLANDT, J. After a jury trial, the defendant, Franklin
Conza, was found guilty of murder in the first degree on a
theory of deliberate premeditation for the stabbing death of the 2
victim, Carlos Santos. The defendant's primary defense at trial
was lack of criminal responsibility.
In this direct appeal, the defendant contends that he is
entitled to a new trial because the trial judge seated a biased
juror over the parties' objections, the prosecutor made improper
statements in closing argument, the judge abused his discretion
in admitting autopsy photographs of the victim, and the judge
erred in denying the defendant's pretrial motion to suppress
certain statements. The defendant also asks us to exercise our
authority under G. L. c. 278, § 33E, to order a new trial or a
reduction in the verdict. We affirm the defendant's conviction
of murder in the first degree and discern no reason to grant
relief under G. L. c. 278, § 33E.
1. Background. a. Facts. We summarize the facts the
jury reasonably could have found, reserving certain details for
later discussion.
i. Defendant's employment. The defendant had been
employed at a bakery in Ludlow for about eighteen years. The
bakery was owned by the victim and his brother. The defendant
usually worked the evening shift beginning at 5 P.M. and
generally ending between 10 P.M. and midnight, although he was
known to stay late if needed.
ii. Events leading to the stabbing. In the two weeks
prior to the stabbing, the defendant argued with each of the 3
owners of the bakery. He argued with the victim two weeks prior
to the stabbing, although the details of the argument were not
in evidence. One week prior to the stabbing, the defendant
argued with the victim's brother after the brother asked the
defendant and another employee, Joaquim Pereira, to stay late.
The defendant worked every night during the week of the victim's
stabbing.
iii. The stabbing. On May 18, 2018, the defendant arrived
at the bakery at approximately 4:30 P.M. Liliana Rodrigues, a
bakery employee who saw the defendant when he arrived, did not
notice anything unusual in the defendant's demeanor. He was not
mumbling, speaking to himself, or cursing, and the defendant did
not appear to be disoriented.
Pereira arrived for his shift between 4:45 P.M. and 5:10
P.M. When Pereira arrived, he saw the defendant preparing
dough; like Rodrigues, Pereira did not notice anything unusual
about the defendant's demeanor. The defendant appeared to be
concentrating on his work and was not mumbling or laughing to
himself. Sometime after Pereira's arrival, the defendant
instructed him to work on the donuts, which were prepared in a
back corner of the bakery separated from the bakery floor by the
basement stairs.
Fifteen to twenty minutes later, Pereira witnessed the
defendant stabbing the victim near the employee entrance to the 4
bakery. The stabbing was also captured on surveillance video
footage, which showed the defendant see the victim, put down the
instrument he was using to prepare bread, run around a large
bin, select a knife, and repeatedly stab the victim.
The defendant ignored Pereira's pleas to stop, and when the
defendant's back was turned, Pereira grabbed the defendant from
behind, pinning the defendant against a machine as the defendant
struggled to break free. The victim, clutching his bloody
chest, stumbled out of the employee entrance and into the
parking lot, eventually collapsing onto the ground.
The medical examiner who conducted the victim's autopsy
concluded that the victim died from complications from a sharp
force injury to the left shoulder that transected the
subclavian/axillary artery and punctured the left lung.
iv. The arrest. Responding to a 911 call, Ludlow Police
Officer Daniel Soares and a second officer arrived at the bakery
at around 6:51 P.M.; they found the victim lying motionless in a
pool of blood.
Entering the bakery, they saw Pereira restraining the
defendant. Soares instructed Pereira to release the defendant.
Upon being released, the defendant continued to be combative and
tried to evade capture, ignoring the officers' orders. During
the ensuing struggle, the defendant, who spoke Spanish, stated, 5
"[K]ill me, kill me, kill me." Eventually, the officers were
able to restrain the defendant.
Once the defendant was handcuffed and brought to his feet,
he was calm and cooperative; he did not appear to be dazed or
confused. As the officers escorted the defendant past the
victim's body and toward the police cruiser, the defendant
turned to the victim and said, "[F]ucking bitch."
Soon afterwards, Ludlow Police Chief Pablo Madera arrived
at the bakery. Madera advised the defendant in Spanish that he
was under arrest for assault and battery by means of a dangerous
weapon.1 The defendant responded to the statement by asking,
"I'm under arrest?" to which Madera said, "[Y]es." The
defendant then said, "I understand," and after a pause, "I
stabbed the owner." Madera informed the defendant of his
Miranda rights in Spanish.
Before leaving for the police station, the defendant asked
the officers to go back into the bakery to retrieve a few of his
personal items -- a wallet, clothing, and identification.
During the conversation with Madera and on the ride to the
police station, the defendant was calm, cooperative, and
coherent; the defendant did not laugh or talk to himself.
1 At the time, the victim had not yet been declared dead. 6
The booking video footage, which was shown to the jury,
showed that the defendant also was calm and cooperative
throughout the booking process. The defendant provided coherent
responses, correctly identifying personal information such as
his date of birth, Social Security number, and marital status.
After the booking process was complete, the defendant was
taken to Mercy Medical Center, where he received care for his
nose, which had been injured as officers tried to subdue him at
the bakery. The police officer who accompanied him to the
hospital did not observe the defendant engage in any unusual
behaviors; as he had during the booking process, the defendant
coherently responded to all questions.
During his admission to the Hampden County Correctional
Center several hours after the stabbing, staff clinicians
similarly reported nothing unusual about the defendant's
behavior. They concluded that the defendant was not
experiencing a mental health crisis warranting commitment at a
mental health facility or the evaluation and stabilization unit
within the jail.
v. Criminal responsibility. The defense at trial was lack
of criminal responsibility. The defendant has a history of
psychiatric afflictions and hospitalizations. The defendant's
ex-wife testified that during the course of their relationship
from about 2004 to 2016, the defendant "[s]ometimes" was 7
"normal, but then sometimes he was strange." The ex-wife
testified that the defendant would sometimes suffer from
insomnia, experience delusions, and hear voices in his head.
The ex-wife also testified that the defendant was sometimes able
to recognize when his symptoms were acute and would ask for
assistance in obtaining care.
Between 2006 and 2016, the defendant was hospitalized on
four occasions for periods of eight to eleven days due to mental
illness. During each hospitalization, the defendant was
diagnosed with major depression with psychotic features or
psychosis and prescribed antipsychotic medication. The
defendant voluntarily committed himself on three of the four
occasions. Specifically, in 2006, the defendant asked to be
driven to the Baystate Medical Center to receive treatment; he
was diagnosed with major depression with psychosis, alcohol
abuse, and cocaine abuse, and was hospitalized for eleven days
in the adult psychiatric treatment unit. The defendant's
records indicate that he was hypervigilant, guarded, and
depressed, and had disorganized thinking.
In 2007, the defendant walked himself to the emergency room
of Baystate Medical Center; he was diagnosed with recurrent and
severe major depression with psychotic features and hospitalized
for eight days in the adult psychiatric treatment unit. The 8
defendant's records indicate that he was expressing paranoid
thoughts and had a depressed affect, but was otherwise oriented.
In 2008, the defendant was admitted to a behavioral
hospital in Holyoke after police found him lying on train tracks
under the wheels of a train; he was diagnosed with psychosis and
hospitalized for eight days. The defendant's records show that
upon admission to the hospital, he was disoriented, laughing,
responding to internal stimuli, and unable to answer open-ended
questions.
Last, in 2016, the defendant called a taxicab to Baystate
Medical Center to receive treatment after his symptoms made it
difficult for him to concentrate at work; he was diagnosed with
recurrent and severe major depressive disorder with psychotic
features and hospitalized in the adult psychiatric treatment
unit for nine days. The defendant's records indicate that he
was expressing paranoid thoughts, but was calm and cooperative
and had linear, coherent thinking.
Generally, when the defendant was taking his medication,
his symptoms were under control.2 Before the stabbing, the
2 The record at trial was unclear whether the defendant was taking the antipsychotic medication at the time of the incident. The defendant last filled a thirty-day supply of his prescription in February 2018, which suggested that the medication would have been exhausted in March 2018 if the defendant had taken it as directed. During the week prior to the stabbing, Pereira observed the defendant muttering and cursing to himself on several occasions. 9
defendant had not committed an act of violence against another
person due to mental illness.
The defendant's expert, Dr. Michael Sherry, opined that the
defendant was not criminally responsible because he was
suffering from the symptoms of mental illness at the time of the
offense, which included a delusion that the victim and others
were conspiring to cut off his cellular telephone service in
order to sever his ties to his family and encourage a
relationship with the victim's daughter.
In the course of formulating his opinion, Sherry met with
the defendant twenty-two times. Sherry also met with the
defendant two additional times after formulating his opinion.
During the first postevaluation meeting, the defendant
denied stabbing the victim due to the victim's involvement in a
plot to cut off his cellular telephone service; instead, the
defendant stated that he was angry at the victim for working him
too hard and stabbed him in a moment of blind rage. Sherry did
not alter his opinion in light of the defendant's disclosures.
Following that meeting, however, Sherry met with the
defendant once more, administering an intelligence test to
determine whether the defendant had the intellectual capacity to
fabricate the complex delusions he had reported in earlier
meetings. Sherry concluded that the defendant was a person of
borderline intellect, and fabricating the "complicated" delusion 10
that the defendant had reported to Sherry during the course of
the twenty-two meetings "would require a lot of intellect."
By contrast, the Commonwealth's expert, Dr. Fabian Saleh,
opined that the defendant was criminally responsible for the
stabbing. Saleh explained that although the defendant sometimes
suffered from delusions, he was not symptomatic at the time of
the offense. Saleh relied on, inter alia, the statements that
the defendant made during his interview with Saleh that he was
angry with the victim for making him work long hours, generally
felt abused by the victim, and was specifically agitated on the
day of the stabbing because he had worked a lot and received
minimal assistance.
Saleh also explained the flaws in Sherry's methodology,
stating that excessive meetings with a person to perform a
forensic evaluation risk the creation of a bond between the
evaluator and the person, thereby jeopardizing the evaluator's
objectivity. Saleh also testified that once a forensic
evaluator formulates an opinion on a person's criminal
responsibility, the evaluator generally should not continue
meeting with the individual as Sherry had.
b. Procedural history. In August 2018, the defendant was
indicted by a Hampden County grand jury on charges of murder in
the first degree, G. L. c. 265, § 1, and assault on a person
sixty years or older by means of a dangerous weapon, G. L. 11
c. 265, § 15B (a).3 Following a jury trial, the defendant was
convicted of murder in the first degree on the theory of
deliberate premeditation; the jury rejected the theory of
extreme atrocity or cruelty. The jury also found the defendant
not guilty of the assault charge. The defendant timely appealed
from his conviction.
2. Discussion. On appeal, the defendant argues that the
judge erred in seating a biased juror; the prosecutor made
improper statements in closing argument; the judge abused his
discretion in admitting autopsy photographs; and the judge erred
in denying the defendant's pretrial motion to suppress. We
address the defendant's contentions in turn.
a. Biased juror. We need not dwell long on the
defendant's argument regarding the challenged juror. While the
inclusion of a biased juror in deliberations is structural error
requiring reversal, see Commonwealth v. Grier, 490 Mass. 455,
464 (2022), the challenged juror in the present case was
selected as an alternate and did not participate in
deliberations. Thus, the juror's alleged bias did not influence
3 The alleged victim of the assault on a person sixty years or older by means of a dangerous weapon in violation of G. L. c. 265, § 15B (a), was Pereira, who was sixty-four years old at the time of the stabbing incident. 12
the verdict, and the defendant suffered no prejudice.4 See
Commonwealth v. Smith, 461 Mass. 438, 443 (2012) (prejudice
shown only "where the challenged juror actually deliberates in a
case"); id. (declining to consider propriety of disallowance of
defendant's peremptory challenge where challenged juror did not
deliberate); Commonwealth v. Bockman, 442 Mass. 757, 763-764
(2004) (once improperly seated juror was removed, "there was no
juror on the panel against whom the defendant could claim
suspected or perceived bias" and therefore defendant suffered no
prejudice).
b. Closing argument. The defendant next contends that the
prosecutor made several improper statements during closing
argument that individually and cumulatively require reversal.
We review the challenged arguments "in the context of the entire
closing, the jury instructions, and the evidence introduced at
trial" (citation omitted). Commonwealth v. Wilkerson, 486 Mass.
159, 180 (2020). Because "there was no objection to the
4 The defendant does not contend, and there is nothing in the record to suggest, that the challenged juror engaged in any premature deliberations or otherwise influenced the deliberating jury. The judge instructed the jurors not to discuss the case with anyone and asked the jurors each morning of trial whether they had any difficulty following that instruction the previous day; the jurors never reported any communications with the allegedly biased juror. See Commonwealth v. Andrade, 468 Mass. 543, 549 (2014) ("The jury are presumed to follow the judge's instructions"). 13
prosecutor's closing argument, we review the challenged
statements for error and, if they constitute error, for a
substantial likelihood of a miscarriage of justice."
Commonwealth v. Kapaia, 490 Mass. 787, 801 (2022).
i. Defense's expert. The defendant challenges the
prosecutor's statements (1) that Sherry "completely ignore[d]
everything in this case: the records, the witnesses to the
offense, witnesses who came into contact with the defendant
immediately after the murder, and the murder itself"; (2) that
"the defense expert was the defendant's advocate, not his
evaluator"; and (3) that the defendant was Sherry's "client[]."5
5 Specifically, the prosecutor stated in closing:
"And I submit that there is no evidence in this case that this defendant was suffering from a mental health defect at the time of the crime.
"But that certainly didn't stop Dr. Sherry from forming an opinion about the defendant's mental state at the time he stabbed Carlos Santos. All he had to do was completely ignore everything in this case: the records, the witnesses to the offense, witnesses who came into contact with the defendant immediately after the murder, and the murder itself. It's just that easy.
"And I submit that this is because the defense expert was the defendant's advocate, not his evaluator. . . . [Dr. Sherry] placed little weight to the jail records on the defendant's intake and did not really address those records that showed he was not psychotic, but he certainly had no problem crediting those records when it showed him something that could help his client's case on 6/18, when Franklin Conza started to complain about his symptoms. . . . And this doctor wasn't going to consider a viewpoint that was contrary to what his client's was. . . . Ladies 14
It is improper for a prosecutor to suggest that an expert
witness's testimony was "bought" or to characterize a witness as
a "hired gun" or "mercenary soldier," as such arguments, absent
any basis in the evidence, impermissibly play on the prejudices
of the jurors and "make it less likely that the jury will return
a verdict based on fair, calm consideration of the evidence."
Commonwealth v. Shelley, 374 Mass. 466, 469-471 (1978), S.C.,
381 Mass. 340 (1980) and 411 Mass. 692 (1992) (prosecutor's
insinuation that expert witnesses were "bought" and "mercenary
soldiers" was improper, as there were no facts in evidence that
witnesses received more than their usual fees and statements
impermissibly played on jurors' prejudices). Such improper
statements may amount to reversible error, especially where they
go "to the very heart of the case" and strike "impermissibly
. . . at the defendant's sole defense." Id. at 471.
Nonetheless, a prosecutor permissibly may suggest bias on
the part of an expert by arguing that "that the expert[] . . .
ignor[ed] evidence that would undercut [his or her] opinion[]"
if the suggestion is supported by the evidence. Commonwealth v.
Lacrosse, 494 Mass. 475, 504-505 (2024). See Commonwealth v.
and gentlemen, Dr. Sherry only looked back and looked away from the evidence of this case. And I submit to you that is the goal of the defense argument at trial. . . . Dr. Sherry was an advocate, not an evaluator." (Emphases added.) 15
Rutherford, 476 Mass. 639, 644 (2017) (no error where
prosecution stated in closing "that the expert witness failed to
consider 'the facts [that] really count'" as "[c]omments
directed at the reliability of an expert's opinion do not exceed
the bounds of permissible argument"). Where remarks are
"limited to discussion of the evidence presented and the
reasonable inferences that can be drawn from that evidence,"
they are proper. Commonwealth v. Rakes, 478 Mass. 22, 45
(2017). Within such bounds, "[e]xcusable hyperbole . . . is
acceptable," as jurors are assumed to "have a certain measure of
sophistication in sorting out excessive claims on both sides."
Commonwealth v. Da Lin Huang, 489 Mass. 162, 181 (2022), quoting
Commonwealth v. Wilson, 427 Mass. 336, 350 (1998).
Here, the prosecutor's remarks were proper, as they were
grounded in evidence and the reasonable inferences that could be
drawn therefrom. First, while it was hyperbole that Sherry
"completely ignore[d] everything in this case," the evidence
showed that Sherry discounted evidence suggesting that the
defendant was not suffering from delusions from his mental
illness on the day of the murder. Sherry did not consider the
defendant's booking video footage and medical records from the
evening of his arrest that indicated that the defendant was calm
and alert. Sherry also did not interview the bakery workers who
interacted with the defendant immediately prior to and during 16
the stabbing; these witnesses testified that the defendant was
coherent and not exhibiting any symptoms in the moments before
the killing. Similarly, Sherry did not talk to the police
officers who interacted with the defendant immediately
afterwards; these officers reported that the defendant was calm,
rational, and coherent after the arrest. Further, Sherry did
not factor into his opinion the surveillance footage of the
murder itself, which showed the defendant, upon seeing the
victim, leave his station, maneuver around a bin, select a
knife, and repeatedly stab the victim. Indeed, following the
remarks that the defendant contends were improper, the
prosecutor specifically listed the evidence to which Sherry
himself testified he gave little weight in forming his opinion.6
See Grier, 490 Mass. at 472 ("where a prosecutor's language is
'based in fact' . . . , emotive language in a prosecutor's
closing argument is permissible as merely 'enthusiastic
rhetoric, strong advocacy, and excusable hyperbole'" [citation
omitted]).
6 Specifically, in closing the prosecutor highlighted that Sherry did not interview Soares, Madera, or Rodrigues; gave little weight to the medical records and jail intake evaluation from the night of the stabbing indicating that the defendant was alert, calm, and oriented; and did not draw any conclusions from the surveillance video footage of the stabbing, which showed the stabbing and the defendant regaining his composure after he was placed under arrest. 17
Second, the evidence supported the inference that Sherry's
objectivity was compromised and that he viewed the defendant as
a client on whose behalf he was to advocate. Sherry himself
referred to the defendant as his "client," stated that he was
"working for the defense," and explained that he sought to
establish a "rapport" with the defendant "so that he would see
[Sherry] as a neutral party even though [Sherry was] working for
him and for the defense."
Saleh stressed the importance of not becoming an advocate
during a forensic evaluation and explained the risks of bias
that may arise when a forensic evaluator repeatedly meets with a
person. Specifically, Saleh testified that repeated contact
could taint the evaluation, as the person may begin to view the
evaluator as a treating doctor, and the evaluator can assume
that role, impairing objectivity. Accordingly, Saleh testified
that it was highly unusual for a forensic evaluator to meet with
an individual twenty-two times, which is precisely what Sherry
had done; Saleh also testified that it was inappropriate for a
forensic evaluator to continue visiting the defendant after
completing his report on criminal responsibility -- again,
precisely what Sherry had done -- given the limited scope of the
role of a forensic evaluator.
Moreover, the evidence showed that some of Sherry's
conclusions were contradicted by other evidence that was 18
available to him. For example, Sherry noted that the defendant
had trouble recognizing the reality that he was divorced.
However, the booking video footage, which Sherry testified that
he viewed, showed the defendant correctly identifying his
marital status as divorced in the hours after the stabbing.
More significantly, during one of Sherry's postevaluation
meetings with the defendant, the defendant admitted to having
killed the victim because he was angry at the victim for
overworking him. Yet Sherry did not account fully for this
admission, which contravened his opinion. In sum, the
challenged remarks, although they concerned a central issue at
trial, were proper, as they urged the jury to draw reasonable
inferences based on the evidence.
ii. Statement about victim's injuries. The defendant
additionally challenges the following statement made by the
prosecutor while referring to the surveillance footage of the
stabbing as impermissibly playing upon the jurors' sympathies:
"And I submit that it is ridiculous to think that a stabbing causes an endorphin rush. Defense would have you believe it's as good as a runner's high. Did defendant –-
"Did Carlos Santos look like he was experiencing a rush of euphoria? Absolutely not." 19
This statement was made in response to the defendant's
suggestion during cross-examination of the medical examiner7 and
in closing argument that the victim did not suffer, in part,
because his body released endorphins in response to being
stabbed. In closing, defense counsel stated:
"You also heard that a body subjected to trauma will produce endorphins, a hormone which reduces the sensation of pain. . . . This is tough evidence to consider, but you should consider this evidence that [the victim] did not appear to have suffered in your consideration of the charge of murder by extreme atrocity or cruelty."
The prosecutor's statement, which directly responded to the
defense argument, was not improper.8 See Da Lin Huang, 489 Mass.
7 Specifically, on cross-examination, defense counsel had the following exchange with the medical examiner:
Q.: "Okay. And the body has responses to trauma, does it not?"
A.: "It does."
Q.: "Okay. And one of those responses would be the release of endorphins."
A.: "Generally, yes."
Q.: "And that takes place pretty much immediately."
A.: "Within a few seconds likely, yes."
Q.: "Okay. And the release of endorphins helps -- causes someone to feel less pain; isn't that true?"
A.: "That could be part of –- of the mechanism, yes."
8 Because we conclude that none of the prosecutor's challenged statements individually constitutes error, we also 20
at 180 ("A 'prosecutor is entitled to make a fair reply to the
defendant's closing argument,' and 'may properly comment on the
trial tactics of the defen[s]e and on evidence developed or
promised by the defen[s]e'" [citations omitted]).
c. Autopsy photographs. The defendant next maintains that
the judge abused his discretion in allowing the prosecution to
admit autopsy photographs of the victim over the defendant's
objection. Specifically, the defendant contends that the judge
did not sufficiently weigh the prejudicial impact of the
photographs and the stated basis of their admission –- to prove
extreme atrocity or cruelty -- against the fact that the
defendant's identity as the killer and the victim's cause of
death were uncontested.
"The admissibility of photographic evidence is left to the
discretion of the trial judge . . . ." Commonwealth v. Waters,
399 Mass. 708, 715 (1987). That the admitted photographs "may
be gruesome or have an inflammatory effect on the jury does not
render them inadmissible so long as they possess evidentiary
value on a material matter." Commonwealth v. Reyes, 483 Mass.
65, 74 (2019), quoting Commonwealth v. Olsen, 452 Mass. 284, 294
(2008). "It is settled law that photographs indicating the
conclude that the statements do not cumulatively warrant reversal. 21
force applied and portraying the injuries inflicted may properly
be admitted on the issue of whether the murder was committed
with extreme atrocity or cruelty, as well as on the issue of
premeditation and deliberation" (quotation and citation
omitted). Commonwealth v. Alleyne, 474 Mass. 771, 779 (2016).
Ultimately "[r]elevant evidence is admissible so long as the
probative value of the evidence is not substantially outweighed
by the danger of unfair prejudice" (citation omitted). Reyes,
supra.
Here, the judge expressly weighed the probative value of
the photographs on the issue of extreme atrocity or cruelty
against their prejudicial effect; he did not admit all the
photographs the Commonwealth sought to introduce but instead
limited the Commonwealth to one photograph of each significant
wound. See Commonwealth v. Tassinari, 466 Mass. 340, 349 (2013)
(autopsy photographs not unduly prejudicial where they
"comprised a small portion of the exhibits," "each revealed a
different way the victim was wounded," and "were relevant to
. . . whether the murder was premeditated and committed with
extreme atrocity or cruelty"); Commonwealth v. Urrea, 443 Mass.
530, 545 (2005) (no abuse of discretion in admitting autopsy
photographs where "each of the eleven autopsy photographs
depicted at least one wound that did not appear in any of the 22
others" and "the one disputed photograph was clearly relevant to
the issue of extreme atrocity or cruelty").9
d. Motion to suppress. Prior to trial, the defendant
moved to suppress statements he had made following the stabbing
as involuntary when made in view of his mental health issues.
Specifically, he sought to suppress (1) his statement "fucking
bitch" directed at the victim as he passed the victim's body
while being escorted out of the bakery by officers; (2) his
statement, "kill me, kill me, kill me," as he was being
restrained; and (3) his statement to Madera that he "killed the
owner" of the bakery.10 The motion judge, who was also the trial
9 Moreover, the judge mitigated any risk of unfair prejudice by giving a contemporaneous limiting instruction and final charge cautioning the jurors that they may not decide the case based on sympathy for the victim. See Urrea, 443 Mass. at 545- 546 (no abuse of discretion in admitting graphic autopsy photographs where "judge instructed the jury when the photographs were admitted, and again during his final instruction, they were to decide the case unemotionally, dispassionately, and analytically").
10Consistent with Massachusetts humane practice, the trial judge resubmitted the issue of voluntariness to the jury, instructing the jurors that they should not consider the defendant's admissions by way of his statement calling the victim "a fucking bitch" and confession that he "stabbed the owner," unless based on all the evidence in the case, they are satisfied beyond a reasonable doubt that the statements were the defendant's free and voluntary act. See Commonwealth v. Kolenovic, 478 Mass. 189, 198-199 & n.10 (2017) ("If the voluntariness of a confession or admission is a live issue at trial, our 'humane practice' rule requires . . . that the judge instruct the jury" to only consider statement as evidence if prosecution "prove[s] the voluntariness of the statement[] beyond a reasonable doubt"). 23
judge, held evidentiary hearings; Soares, Madera, and Pereira
testified. In a thorough decision, the judge denied the motion
to suppress, concluding that while the defendant had a history
of mental health issues, the prosecution had met its burden to
show beyond a reasonable doubt that the challenged statements
were voluntary when made. On appeal, the defendant maintains
that the judge improperly denied his motion.
"In reviewing the denial of a motion to suppress concerning
. . . the voluntariness of a defendant's statements, 'we accept
the judge's subsidiary findings of fact absent clear error, give
substantial deference to the judge's ultimate findings and
conclusions of law, but independently review the correctness of
the judge's application of constitutional principles to the
facts found.'" Commonwealth v. Estabrook, 496 Mass. 467, 472
(2025), quoting Commonwealth v. Escobar, 493 Mass. 694, 700
(2024). "A statement is presumed voluntary until a defendant
produces any evidence showing otherwise." Commonwealth v. Hart,
493 Mass. 130, 135 (2023), S.C., 497 Mass. 1 (2025). "Where
such evidence is forthcoming, through a motion and affidavit or
a proffer, the presumption disappears, and the Commonwealth then
bears the burden of proving beyond a reasonable doubt that the
statement was made voluntarily." Commonwealth v. Tremblay, 460
Mass. 199, 206 (2011). 24
The test for voluntariness is "whether, in light of the
totality of the circumstances surrounding the making of the
statement, the will of the defendant was overborne to the extent
that the statement was not the result of a free and voluntary
act" (quotation and citation omitted). Hart, 493 Mass. at 135.
A "judge must consider the defendant's physical and mental
condition" in assessing voluntariness, as "[s]tatements that are
attributable in large measure to a defendant's debilitated
condition, such as insanity, . . . are not the product of a
rational intellect or free will and are involuntary."
Commonwealth v. Allen, 395 Mass. 448, 455 (1985).
Nevertheless, "mental health conditions do not necessarily
render a defendant's statements involuntary." Commonwealth v.
Roman, 495 Mass. 412, 417 (2025). See Commonwealth v. Libran,
405 Mass. 634, 638-639 (1989) ("even if the judge accepted as a
fact that a defendant was suffering from . . . mental
impairment, it does not follow that the judge must rule that the
statements were involuntary per se"). "[A] defendant's
disturbed . . . mental state does not automatically render his
or her statements involuntary" as "[a]n agitated or distressed
mental condition . . . could be 'natural for someone who [has]
admitted the commission of serious crimes'" (citation omitted).
Commonwealth v. Walters, 485 Mass. 271, 281 (2020). 25
After reviewing the defendant's medical records documenting
his history of mental illness, see discussion supra, the judge
found that it was "beyond dispute that the defendant has
experienced and endured a history [of] mental illness" and that
therefore the defendant had made the requisite initial showing.
The burden then shifted to the Commonwealth to prove beyond a
reasonable doubt that the challenged statements were voluntary.
The judge concluded that the Commonwealth had met its burden.
The judge's conclusion was supported by the hearing
evidence. For example, Pereira testified that while he had
observed the defendant behave erratically and swear at people
for no reason on earlier occasions, there was nothing unusual
about the defendant's behavior on the day of the stabbing.
Soares and Madera similarly testified that the defendant was
coherent and cooperative following his arrest, displaying no
issues communicating in Spanish. The booking video footage also
showed that the defendant provided clear and coherent responses
to the questions posed to him. And the medical records from the
day of the stabbing similarly noted that he was alert,
cooperative, and oriented.
The judge found that the statement "kill me, kill me, kill
me" that the defendant made while being restrained was a form of
belligerence common in arrest. The judge also found that the
statement "fucking bitch" that the defendant made while looking 26
toward the victim's body as he was escorted out of the bakery
was consistent with the circumstances when just minutes earlier
he had stabbed the victim multiple times. Further, the judge
determined that the defendant's remark "I killed the owner" was
a rational response to Madera's confirmation that he was under
arrest and illustrated the defendant's understanding of the
reason for his arrest.
On this record, the judge did not err in concluding that
the Commonwealth had met its burden to show the statements were
voluntary. See Walters, 485 Mass. at 280-281 (judge did not err
in concluding statements were voluntary where notwithstanding
"defendant's emotional distress," defendant provided "coherent
narrative of facts" and appeared "ground[ed] in reality");
Commonwealth v. LeBlanc, 433 Mass. 549, 555 (2001) (judge
warranted in concluding that defendant's confession was
voluntary where although defendant "was emotionally upset, he
spoke calmly when giving his statement, and there [was] no
evidence that he was acting irrationally"); Commonwealth v.
Vazquez, 387 Mass. 96, 100 (1982) ("Although there was evidence
that the defendant was suffering from intermittent schizophrenia
or toxic psychosis at the time he gave his statements, the judge
was not required to allow the motion to suppress" where evidence
showed defendant was "calm, coherent, and cooperative" during
interrogation [quotations omitted]). 27
3. Conclusion. After careful review of the entire record,
we conclude that there is no reason to exercise our power under
G. L. c. 278, § 33E, to order a new trial or reduce the verdict.
The defendant's history of mental illness and the issue of his
criminal responsibility were squarely before the jury. In these
circumstances, "[w]e do not 'sit as a second jury'" and will not
"override the jury's determination that the defendant was
criminally responsible" (citation omitted). Lacrosse, 494 Mass.
at 507. See Commonwealth v. Berry, 466 Mass. 763, 770 (2014);
Commonwealth v. Brown, 449 Mass. 747, 773 (2007); Commonwealth
v. Lannon, 364 Mass. 480, 486 (1974). We therefore affirm the
judgment.
So ordered.